Aliya Begum vs Ghausia Khan & Others

K.C. Agarwal, J.—This is an appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure against the judgment and order of the I/c Civil Judge. Unnao, granting injunction against the defendants. Order dated 1821989, which has been impugned by means of this appeal, read as under:

�Invite objections by 17389 and disposal on 24389. Till then the defendants are restrained from transferring the vehicles and their permits mentioned in schedule A, B and C in their names or in the name of any other person. The possession of the aforesaid vehicles shall not be delivered to any other person without permission of the Court.�

Counsel appearing for the appellant, Sri H.S Sahai, urged that the learned Civil Judge should not have granted the injunctions without providing an opportunity to the appellant. For the submission made, he placed reliance on Order 39 Rule 3 of the ode of Civil Procedure. Order 39 Rule 3 provides:

�The Court shall in all cases, except where it appears that the object of granting injunctions would be defeated by the delay, before granting an injunction, direct notice of the application for the opposite party.�

The Proviso appended to the said Order 39 Rule 3 is as under:

�Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.�

From the reading of the Rule 3, it appears that where the court is of the view that the object of granting the injunction would be defeated by the delay, it has to record reasons and then can grant the injunction without waiting for service on the defendants. In this case, the learned Civil Judge Incharge appears to me to have been in undue haste. He has not recorded any reasons as to why injunctions were required to be given immediately without giving any opportunity of hearing to the defendants.

Sri A. Mannan. counsel appearing for the plaintiff respondents, attempted to support the order on merits while saying that the defendantappellant, and other arrayed on her sid , were likely to transfer the vehicles and on account of which injunction was issued by the Civil Judge on being satisfied that immediate action was required to be taken in that regard. Counsel urged that he had filed several documents in the court below showing urgency of the matter. Since Order 39 Rule 3 required giving of reasons by the court, it was incumbent to do so before granting injunction in the absence of the defendant. The fact that the plaintiffs had filed some papers would not fulfil the compliance of the said provision. The learned Civil Judge has byepassed the mandatory provision of Order 39 Rule 3 by not recording the reasons required.

Sri H.S. Sahai challenged the judgment on merits, but as I am setting aside the orders impugned by means of this appeal on the point indicated above, neither am I prepared to express any opinion in favour of the appellant nor against her. Sri A. Mannan urged that the plaintiffrespondents belong to a very rich family but on account of the highhandedness of the defendantappellant, they are starving as they are not having any source of livelihood. This prayer can be made by the plaintiffrespondents before the court below and if the court below is satisfied that an order is required to be made again it the defendant directing her to pay some money in cash regularly, it will do so. For the present, what 1 do is to set aside the orders send back the injunction application to the court below and direct the District Judge either to transfer the case to his own file or to send it to any officer other than the Civil Judge, Incharge who passed the impugned order. Sri H.S. Sahai undertakes to file counter affidavit to the application within ten days from today. Upon the counter affidavit being filed, the court below will expeditiously, preferably within one month from today, decide the injunction application.

Sri A. Mannan made a request at the end that the defendantappellant be restrained from transferring any vehicle mentioned in Schedule A, B and C. In this appeal, I am not prepared to grant any such order.

Learned counsel for the parties may file a certified copy of this judgment before the District Judge within a weak from today. Upon the copy of the judgment being filed, the District Judge will take appropriate steps in accordance with the directions given above and would fix an early date.

With these observations, the appeal is disposed of.

Certified copy of this order may be issued within two days to the learned counsel for the parties on their making urgent application for the purpose.

(Appeal allowed)