AI Structured Summary
Not yet generated for this judgment
Judgment
G.S. Singhvi, J
This revision petition is directed against the order dated 9.8.1995 passed by the District Judge, Patiala on an appeal filed by respondent No. 1 against the order dated 24.8.1995 passed by the Sub-Judge IInd Class, Patiala.
The petitioner has prayed that the order of the learned District Judge granting ex parte mandatory injunction in favour of plaintiff-respondent No. 1 be set aside and the order of the trial Court be restored.
The facts on which the parties have no dispute are that the plaintiff-respondent No. 1 filed a suit on 24.8.1995 for issue of a mandatory injunction directing that defendants (including revision petitioner), their supporters, unionists and party men be made to vacate the factory premises of the plaintiff-respondent No.1 and a prayer for grant of permanent injunction was also made for restraining the defendants, their supporters unionist and their party men from entering upon, remaining present and from doing any illegal activities in the factory of the plaintiff-respondent No. 1. Alongwith the suit the plaintiff-respondent No. 1 also filed an application under Order 39, Rules 1 and 2 of the CPC (for short, the Code) for grant of ad-interim injunction. While entertaining the suit and the application for temporary injunction the trial Court passed the following order declining ex parte ad interim injunction.
"24.8.1995. Present Counsel for the plaintiff.
Heard. No ground is made out for the grant of ex-parte ad-interim injunction. Hence, ex parte injunction is declined. Notice of the suit and of stay application be issued to the defendants for 31.8.1985 vide PF and copies of plaint stay application."
Against this order, the plaintiff-respondent No. 1 filed an appeal before the District Judge, Patiala, who has passed ex-parte mandatory injunction directing the defendants (including the revision petitioner) to vacate the premises of the factory within 24 hours of the receipt of the order. At the same time, the Appellate Court directed that its order is subject to all just exceptions and pleas which may be taken by the respondents.
Learned counsel for the revision petitioner argued that the appellate court had no jurisdiction to entertain the appeal filed by respondent No. 1 because against an order of issue of notice on the injunction application and refusing to pass an ex parte ad interim injunction, no appeal lies under Order 43, Rule 1(r) of the Code. Learned counsel contended that direction given by the trial Court for issue of notice of the suit and that of the stay application does not amount to an order within the meaning of Order 43, Rule 1(r) of Code and, therefore, no appeal could have been entertained by the Appellate Court. Learned counsel further submitted that the action of the Appellate Court in entertaining the appeal is subversive of the judicial discipline because in Iqbal Singh and Others Vs. Chanan Singh and Others, this Court has unequivocally held that against an order declining ex parte ad interim injunction, the appeal is not maintainable. But, ignoring this judgment, the Appellate Court has entertained the appeal by making a reference to the judgment of Sikkim High court in Ashok Tshering Lama v. Tshering Wanqdi , and passed the impugned order.
On the merits of the case learned counsel for the petitioner contended that there existed no ground for the unusual order passed by the learned Appellate Court even without issuing a notice to the defendants-respondents. Learned counsel argued that the Appellate Court has virtually decided the suit filed by respondent No. 1 and such an order is clearly an abuse of the power vesting in the Appellate Court.
Learned counsel for respondent No. 1 on the other hand, supported the impugned order by arguing that the Appellate Court had jurisdiction to entertain the appeal in view of the judgment referred by it. According to the learned counsel the view taken by this Court in Iqbal Singh''s case (supra) requires reconsideration because a majority of the High Courts have held that against an order declining ex parte ad-interim injunction an appeal is maintainable. He relied on a Full Bench decision of Allahabad High Court in Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma,
On merits, learned counsel for respondent No. 1 argued that the Appellate Court possessed with the jurisdiction to pass the mandatory injunction and exercise of the power by the appellate Court does not suffer from any perversity which calls for interference by this Court in its revisional jurisdiction.
The question of the maintainability of appeal against an order passed by the lower Court declining ex parte ad-interim injunction and issue of notice of injunction application may have required a detailed examination in the light of the submissions made by learned counsel for respondent No. 1 but in view of the fact that in my opinion the order passed by the Appellate Court on merits is liable to be set aside. I do not consider it necessary to make a detailed examination of the aforesaid question. However, at the same time, I cannot refrain myself from observing that the learned Appellate Court had no justification to ignore the law laid down by this Court and entertain the appeal by making reference to the judgment of another High Court. Being a Court subordinate to the High Court, the basic requirement of the judicial discipline warranted that the District Judge should have followed the law laid down by this Court.
On the merits of the case, I find that the Appellate Court has made reference to the various contentions raised by Shri Ashok Matter, counsel for respondent No. 1 (appellant before the learned District Judge) and then he has passed the order in one line granting mandatory injunction directing the defendants to vacate the premises of the factor}'' within 24 hours. The extraordinary haste with which the learned Appellate Court has passed the order of mandatory injunction without even issuing a notice to the opposite side has rightly been described by the counsel for the petitioner as an abuse of the power vesting in the Appellate Court. It is really astonishing, that the Appellate Court has passed an order of mandatory injunction without discussing the issue of a prima facie case, balance of convenience and irreparable injury and without recording a finding that the action taken by the trial Court on an application filed under Order 39 Rules 1 and 2 of the Code is not unlimited. The Appellate Court cannot exercise the powers of the Trial Court. It can interfere with the order of the trial Court only in cases where it holds that the order passed by the trial Court is patently illegal or perverse or is an order passed ignoring the settled principle of law. In the instant case the Appellate Court as already mentioned above, has not recorded such finding and yet, it has proceeded to pass an extra ordinary order in favour of the plaintiff-respondent No. 1.
No doubt, the Court is possessed with the power to grant mandatory injunction in exercise of its power under Order 39, Rules 1 and 2 of the Code but this power has to be exercised in rare cases. However, before passing a mandatory injunction on an application filed under Order 39 Rules 1 and 2 of the Code what the Court is required to do is to give a notice and an opportunity of hearing to the other side. There is no explanation as to why the learned Appellate Court by passed this basic and fundamental requirement of natural justice. At the same time, there is no reason discernible from the impugned order as to why the Appellate Court thought it proper to pass an order which if made effective would have resulted in ex parte decision of the suit. In my considered opinion, the learned Appellate Court has clearly acted without jurisdiction and the impugned order which has been passed merely for asking has to be set aside. This Court would be singularly failing in discharge of its duty if the order passed by the Appellate Court is allowed to be sustained.
For the reasons mentioned above the order dated 29.8.1995 passed by the learned District Judge, Patiala, is set aside. The Trial Court is directed to hear and decide the injunction application filed by the plaintiff-respondent No. 1 by 30th September, 1995.
12.The revision petition stands disposed of accordingly.
Parties through their counsel are directed to appear before the trial Court on 25th September, 1995.