Subodh Gupta vs Virendra Kumar

Manoj Kumar Tiwari, J

Petitioner filed a declaratory suit against his brother — Virendra Kumar in the court of Civil Judge (S.D.), Roorkee, which is numbered as Original Suit No. 114 of 2021. He also filed an application seeking temporary injunction and learned trial court issued notice on the temporary injunction application fixing 28.04.2021 for objection/disposal. Subsequently, petitioner filed an application under Section 151 of C.P.C., which was dismissed by learned trial court vide order dated 03.08.2021. Thus, feeling aggrieved, petitioner has approached this Court challenging the orders dated 02.04.2021 and 3.08.2021.

Learned counsel for the petitioner submits that the next date fixed before trial court is 6.9.2021. He has apprised the Court that petitioner has taken steps for effecting service upon defendant (respondent herein) on 07.04.2021, however, service report has not been received back.

The sole contention raised on behalf of the petitioner is that in view of the facts and reasons mentioned in the temporary injunction application, learned trial court ought to have granted ex-parte interim injunction order in favour of the petitioner and learned trial court has erred in law and fact both by not granting ex-parte temporary injunction.

This Court does not find any substance in the contention raised on behalf of the petitioner. Order 39 Rule 3 C.P.C. ordains that grant of ex-parte temporary injunction is an exception and issuance of notice is a Rule, moreover, reasons have also to be recorded for grant of ex-parte temporary injunction.

In such view of the matter, this Court does not find any infirmity in the orders impugned in the writ petition.

Learned counsel for the petitioner undertakes on behalf of his client that respondent (defendant in the suit) shall be served personally within four weeks for which his client shall take all necessary steps on or before 17.08.2021.

In view of the undertaking given by petitioner’s counsel, the writ petition is disposed of with a request to learned trial court to decide petitioner’s temporary injunction application on the next date fixed i.e. 06.09.2021 or any other date within four weeks thereafter.

For a period of eight weeks or till disposal of temporary injunction application, whichever is earlier, status quo shall be maintained qua the suit property.

However, it is made clear that this Court has not expressed any opinion on the merits of the claim made by the petitioner, therefore, learned trial court shall consider temporary injunction application on its merits, without being influenced by the order of this Court.

Let certified copy of this order be supplied to the petitioner today itself.