AI Structured Summary
Not yet generated for this judgment
Judgment
Mohammed Yaqoob Mir, Judge
Suit for permanent prohibitory injunction has been filed before the Court of Sub Judge, Leh Ladakh with the following prayer:
It is, therefore, most respectfully prayed that the decree for permanent prohibitory injunction restraining the defendants from opening of medical
outlet within the premises of S.N.M. Hospital Leh may kindly be passed in favour of the plaintiffs and against the defendants and any one claiming
through him.
Along-side an application for grant of temporary injunction has been filed. While considering the same, learned trial court, while dispensing with
the requirement of prior notice to the petitioners (defendants) as permissible under Order 39 Rule 3 CPC has granted ad-interim injunction to the
following effect:
....Issue notice to the other side for filing objections and written statement. In the meantime the defendants are restrained to open a low price
medical outlet within the compound of S.N.M. Hospital. This order is subject to objections from the other side and other side is at liberty to seek
vacation or modification of this order before the next date fixed in the case, if they so choose...
The petitioners (defendants) instead of filing alteration of the order or instead of filing an appeal have filed the instant petition.
The question for consideration is as to whether this petition is entertainable. The High Court as power of superintendence and control over
subordinate courts u/s 104 of the Constitution of J&K so has to ensure that the subordinate courts function within their limits. Such power at the
instance of the aggrieved party is exercisable normally only when other efficacious remedy is not available to him.
Learned counsel would contend that the order has been passed without jurisdiction and the laudable object of the scheme which is to help the
poor in getting the medicine at cheaper rates has been ignored. Only few vested persons, with the purpose of defeating the very object, have filed
the suit so as to forestall the process as has been initiated.
The submission made is attractive because after all trial court is supposed to take care that the public interest shall not suffer. While weighing the
ingredients for grant or otherwise of interim injunction, such as prima facie case, balance of convenience and irreparable loss, other hosts of
circumstances are also to be taken note of. Equitable relief has to be granted only when party approaches the court with clean hands.
It is also settled now that the order of injunction ex-parte is appealable under Order XLIII of the CPC but this Court in various judgments has
settled the position i.e. as a matter of practice appeal against the orders passed subject to objections are not entertained subject to exception and
this practice has hardened into rule. So it is for the petitioners (defendants), if they choose, to file an appeal to carve out an exception for filing
such, appeal, or otherwise to have to file application/objections for modification/alteration of the order.
It is also made clear that when the trial court has passed the order after dispensing with the requirement of prior notice, the application for
temporary injunction has to be disposed of preferably within a period of 30 days as is envisaged by Order 39 Rule 3-A of the Code of Civil
Procedure.
In the aforesaid backdrop, it shall not be appropriate to entertain the present writ petition. Petitioners (defendants) shall be free to have recourse
to the available remedial measures, such as to file application/objections, if not already filed, for modification/- vacation/alteration of the interim
order impugned dated 22.09.2011. Learned trial court shall ensure that the application for grant of injunction is disposed of without any fail within
the permissible period.
This petition shall accordingly stand disposed of along with connected CMP.