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Judgment
These appeals are directed against the orderdated 23.07.2008 passed by 2nd Additional District Judge, Sriangar, (for short ""impugned order"")
whereby and whereunder an exparte adinterim injunction order came to be granted in favour of the respondents.
It appears that respondents/plaintiffs filed the first suit before Principal District Judge, Srinagar, came to be transferred to Munsiff
(SubRegistrar), Srinagar. The said court directed the official defendants/appellants to issue tender documents to the plaintiffs. But no restraint order
came to be passed in favour of the plaintiffs against the defendantsappellants. Thereafter, plaintiffs/respondents filed another suit before Principal
District Judge, Srinagar, came to be transferred to 2nd Additional District Judge, Srinagar, and an exparte restraint order came to be passed in
favour of the plaintiffs/respondents and against the appellants/Forest Corporation/defendants.
Feeling aggrieved private defendants/official defendants/appellants have questioned the impugned order by the medium of these appeals.
Mr. Lone, learned counsel for the respondents, argued that appeals are not maintainable and it is practice of this Court and other Courts not to
disturb the exparte adinterim order of injunction but to allow the trial court to decide the application for grant of adinterim relief after hearing the
parties. Further, argued that in case the argument will not weigh then the appeal be decided on merits.
Admittedly, the dispute is visavis tender and the eligibility conditions prescribed by the official respondents in the tender notice.
Order XLIII of the Code of Civil Procedure (for short ""Code"") provides which orders are appealable. Order XLIII subrule (r) provides that an
order under Rule 1, rule 2, rule 2(a), rule 4 or rule 10 of Order XXXIX of the Code are appealable. It is apt to reproduce Order XLIII rule (r)
herein:
Appeals from orders
An appeal shall lie from the following orders under the provisions of section 104, namely:
(r) An order under rule 1, rule 2, rule 2 (a), rule 4 or rule 10 of Order XXXIX.
It is nowhere provided that an exparte order passed under Order XXXIX rule 1, rule 2 of the Code is not appealable. It can safely be said and
held that order of adinterim injunction whether exparte or otherwise passed under Order XXXIX rule 1 and rule 2 of the Code is appealable. My
this view is fortified by the Full Court Judgment of this Court in M/s Astral Traders v. M/s Haji Mohammad Shaban Dar and ors, reported as
1982 SLJ 404. It is apt to reproduce para 6 herein:
Every order of adinterim injunction, whether exparte or otherwise, and whether made under Rules 1,2 or 4 of Order 39, is on the plain terms of
Cl. (r) of Rule 1 of order 43, appealable. There is no room for the argument that the appeal shall lie against only such orders passed under these
Rules, as have been passed after hearing both the parties, and nor is there any scope for the argument that Rules 1, 2 and 4 of Order 39 postulate
only those orders that are made after hearing both the sides.
The Apex Court in a case titled Kishore Kumar Khaitan and anr., vs. Praveen Kumar Singh reported as 2006 AIR SCW1077 also laid down
the same principle. It is apt to reproduce para 4 herein:
It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an
order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had
made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for
him to have passed such an order of injunction.
Thus an order passed under Order 39 of the Code in exparte or after hearing the parties is appealable.
Now, the question is whether it is appropriate to decide the appeal on merits or direct the trial court to decide the application first. Keeping in
view the ratio laid down by the Full Bench of this Court read with judgment of the Apex Court (supra), it is the choice of the defendants/appellants
to choose the remedy and if the appeal is filed and decided on merits, the doctrine of Merger will come into force. The appellants have chosen to
file appeal and taken the risk of seeking adjudication from the appellate court instead of approaching the trial court.
Apex Court in case titled A. Venkatasubbiah Naidu vs. S. Chellappan and others, reported as AIR 2000 SC 3032 held as under:
It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule
is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the
disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1
of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the
ex parte order for any relief.
Full Bench and Single Bench of this Court has observed that it is proper to direct the trial court to decide the application but it is also held that
if order is not satisfying the requirement of law, the appeal is to be allowed and impugned order is to be set aside.
It appears that that trial court has not prima facie come to the conclusion in whose favour balance of convenience lies. It is apt to reproduce
impugned order herein:
On a summary examination of the material which has been produced before me, the pleas taken on behalf of the applicants appear weighty. The
other side is required to be heard and after hearing both the sides, it would be seen in whose favour the balance of convenience tilts. The
contentions raised on behalf of the applicants cannot be either terms vexatious or unfair at this stage so as to withhold any ad interim assistance till
the other is heard. Accordingly subject to the objections of other side, the follow up action/orders initiated in terms of the NIT's bearing
No.294308/DM/SFC dated 15.04.2008 and No.101115DM/SFC dated 15.05.2008 is/are ordered to be kept in abeyance. Put up on
30.07.2008.
However, the applicants would be under an obligation to furnish the copies of the application plaint and other documents relied on to other side.
While going through the impugned order, it is crystal clear that the trial court has not come to the prima facie conclusion that balance of
convenience was at that stage in favour of the plaintiffs but opined that it will be seen after hearing the parties in whose favour balance of
convenience tilts. The Full Court in a case reported as 1982 SLJ 404 (supra) has also laid down that at the stage of passing the interim exparte
order, prima facie satisfaction/opinion is to be framed.
It is also mandatory to record prima facie finding that in whose favour the balance of convenience lies. The Apex Court in a judgment reported
as 2006 AIR SCW 1077 (supra) and in case titled M. Gurdas & Ors v. Rasaranjan & Ors reported as 2006 AIR SCW 4773 also laid down the
same law/principle. It is apt to reproduce paras 20 and 22 herein:
A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court may not only must arrive at
a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist.
While considering the question of granting an order of injunction one way or the others, evidently, the court, apart from finding out a prima
facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by
the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a
serious question and not only on a mere triable issue. (See Dorab Cawasji Warden v. Coomi Sorab Warden and others, (1990) 2 SCC 117,
Dalpat Kumar and another v. Prahlad Singh and others (1992) 1 SCC 719, United Commercial Bank v. Bank of India and Others (1981) 2 SCC
766, Gujrat Bottling Co. Ltd. And Murlidhar Hemdev and others v. Kanhaiyalal Lokram Hemdev and others (1999) 5 SCC 222 and
Transmission Corpn. Of A. P. Ltd. (supra)]
This view is also supported by Apex Court judgment delivered in case titled United Commercial Bank v. Bank of India and others, reported as
AIR 1981 SC1426. It is apt to reproduce paras 49 and 51 herein:
In the instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the
balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction
granted.
Even if there was a serious question to be tried, the High Court had to consider the balance of convenience.
In the given circumstances, it can safely be held that the impugned order is illegal.
Admittedly, the plaintiffs/respondents have filed suit which is still pending before SubRegistrar and have filed another suit which is pending
before the Additional District Judge, Srinagar. In both the suits main relief is same. But the learned Additional District Judge has not made whisper
in the impugned order about the pendency of the first suit and its effect.
It also appears that the trial court has not made a prima facie opinion that whether exparte injunction order was to be granted in a tender
matter while keeping in view the judgments reported as 1999 (1) SCC 492, (2004) 4 SCC 19,2006 AIR SCW 5408 and 2006 AIR SCW 5834.
Now the question is whether the application for grant of interim injunction is to be decided on merits or to set aside the impugned order with a
direction to the trial court to decide the application on merits.
As discussed hereinabove, the impugned order is illegal. Thus it is a case of remand.
In the given circumstances, it is proper to refrain from thrashing out and marshalling out principles governing the grant/refusal of ad interim relief
and the merit of the case at this stage. My this view is fortified by the Apex Court Judgment in case titled Sree Jain Swetambar Terapanthi Vid (s)
v. Phundan Singh and others report as (1999) 2 SCC 377. It is apt to reproduce para12 herein:
It may be pointed out that it is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the
temporary injunction and it is another thing to hold that the trial court has gone wring in recording the prima facie satisfaction and setting aside that
the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate
court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set
aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the
order of the trial court on the first ground ignoring the aforementioned findings of the trial court. The order under appeal is, therefore,
unsustainable.
Having glance of the above discussion, both the Appeals are allowed and impugned order is set aside with a direction to the trial court to
decide the application for grant of ad interim relief filed by the plaintiffs/respondents within fifteen days commencing from 13th of December, 2008
i.e. by or before 28th of December, 2008. The appellants are directed to file written statement and objections by or before 13th of December,
2008. Parties are directed to cause their appearance on 13th of December, 2008 before the trial court.