Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9355 of 2018 Petitioner :- Moradabad Development Authority Respondent :- Shri Sai Sidhi Developers Counsel for Petitioner :- Satish Chaturvedi Counsel for Respondent :- Ram Milan Mishra
Hon'ble Mrs. Sunita Agarwal,J.
With the consent of learned counsel for the parties, the present petition is being decided finally at the admission stage, itself. No counter and rejoinder affidavits are required as admitted by them.
Heard learned counsel for the parties and perused the record.
The present petition is directed against an order dated 28.8.2018 whereby the trial court has granted an interim order in favour of the plaintiff, pending disposal of application 6Ga, with the observation that for decision on 6Ga application (temporary injunction matter), spot-inspection report of the site in question is needed. Thus, while issuing direction to the plaintiff to take steps (do pairvi) for getting an Amin report, interim protection has been granted restraining the defendants from interfering or doing any illegal activities in relation to the suit property, which would run contrary to the interest of the plaintiff.
It has also been observed by the trial court that in case of any delay on the part of the defendants in complying with the directions of the trial court i.e. in doing pairvi or disposal of temporary injunction application, it would be open for it to reconsider the interim injunction granted in favour of the plaintiff. Further, 20.9.2018 was the date fixed for disposal of the temporary injunction application and filing of the written statement.
It is informed by the learned counsel for the parties that the Amin report has been filed in the trial court on 1.9.2018. None of the counsels for the parties are in a position to inform the Court as to whether the plaintiff or defendants had filed any objection to the Amin report.
Further, from a perusal of the order sheet, it transpires that on 4.9.2018, an application 33Ga with the affidavit 34Ga was filed by the plaintiff and the trial court has proceeded to decide the same on 4.9.2018, itself.
By means of the said application, the plaintiff had pleaded that the defendants were not complying with the interim injunction order dated 28.8.2018 and were trying to interfere illegally in the business being run by the plaintiff. On 3.9.2018, the defendants had refused to obey the interim injunction order. It has not been disclosed in the said application as to what actually was the action of the defendants which amounted to non-compliance or violation of the interim injunction order granted on 28.8.2018.
Be that as it may, the trial court has proceeded to allow application 33Ga invoking the powers under Section 151 CPC and directed the administrative authorities namely the District Magistrate and the Senior Superintendent of Police, Moradabad, to ensure that the interim injunction order dated 28.8.2018 is complied with.
It further transpires from the record that on 20.9.2018, the trial court has granted time to both the parties to file their objections on Amin report paper no. 35Ga.
It is informed by the learned counsel for the petitioner/defendant that a written statement/objection to the temporary injunction application 6Ga has been filed on 20.9.2018. The order sheet dated 10.10.2018, 6.11.2018 and 14.12.2018 indicate that the matter could not be heard on account of leave of the Presiding Officer.
Order sheet after 14.12.2018 is not on record. None of the counsels for the parties are in a position to intimate as to why application 6Ga/temporary injunction application could not be decided for a period of more than five months. As per the information given by them, today i.e. 25.2.2019 is the date fixed for disposal of the temporary injunction application.
Before coming to the merits of the case in the light of the above facts, it would be appropriate to deal with the preliminary objections raised by the learned counsel for the respondent/plaintiff.
Learned Advocate for the plaintiff placing reliance upon the judgment of the Division Bench of this Court in Cosmopolitan Club Vs. M/s. Vinayak Kripa Inframart Company (P) Ltd. reported in 2010 (5) ADJ 731 (DB) and a coordinate bench judgment in Shikha Wadhwa vs. District Judge, Lucknow & 2 others reported in 2017 (125) AllLR 411, submits that misc. appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure would lie against the order challenging the grant of interim injunction dated 28.8.2018 and hence this petition under Article 227, is not maintainable.
Submission is that any interlocutory order passed during pendency of the temporary injunction application would also fall within the meaning of the temporary injunction order as being passed under Order 39 Rule 1 CPC. As the remedy of First Appeal From Order has been provided under Order 43 Rule 1(r) of the Code of Civil Procedure, any order passed under Order 39 Rule 1 CPC, whether "interlocutory order" or temporary injunction order, is appelable under Order 43 Rule 1(r) of the Code of Civil Procedure.
Reference has been made to the observations of the Division Bench and learned Single Judge of this Court in paragraph '7' of the Cosmopolitan Club (supra) and paragraphs '10' and '11' of the Shikha Wadhwa (supra), which are quoted hereunder:-
"7. Order XXXIX Rule 1 C.P.C. provides for cases in which temporary injunction may be granted. The grant of temporary injunction under Order XXXIX Rule 1 may be grant of temporary injunction ex parte or may be grant of injunction after service of notice or an injunction finally disposing of the application 6c. The order XXXIX Rule 1 is the source of power for grant of temporary injunction. The temporary injunction cannot be bifurcated or divided in the manner as contended by the counsel for the respondent. An order of temporary injunction under Order XXXIX Rule 1 which has been granted by the impugned order cannot be said to have been passed under Section 151 C.P.C when there is specific provision under Order XXXIX Rule 1. The court itself has passed the order on the application 6c and 29.4.2010 was a date fixed for the application 6c. Hence, the order dated 29.4.2010 is an order passed on 6c application, i.e., application for temporary injunction. Now, the submission of the counsel for the respondent that appeal shall lie only against an order disposing of application 6c is to be considered. Order XLIII Rule 1 (r) as noticed above provides appeal from an order under Rule 1, Rule 2, Rule 2(a), Rule 4 or Rule 10 of the Order XXXIX. The order under Rule 1 cannot be said to be an order finally disposing of an application 6c. No such interpretation can be put to an order which is referable to Order XXXIX Rule 1. After grant of an injunction, under Order XXXIX Rule 4 the injunction order may be discharged, varied or set aside. The order of both of ex-parte interim injunction or interim injunction after notice or interim injunction after deciding the application 6c are all the interim injunction which are referable to Order XXXIX Rule 1 and the submission has no substance that an order deciding the application 6C finally is appellable. Thus, preliminary objection of the respondent cannot be accepted.
10. Order 39 which deals with Temporary Injunctions and Interlocutory Orders is divided into two parts: (1) temporary injunctions and (2) interlocutory orders. Rule 1 to 5 fall under the head temporary injunctions whereas Rules 6 to 10 fall under the head interlocutory orders. Rule 1 provides for cases in which temporary injunction may be granted, Rule 2 provides for grant of injunction to restrain repetition or continuance of breach. Rule 2-A deals with consequences of disobedience or breach of injunction. Rule 3 provides for the procedure to be followed by the Court before granting injunction. Rule 3-A casts a duty on the Court to finally dispose of the application for grant of temporary injunction within the time mentioned in the said rule in cases where injunction is granted without notice to the opposite parties. Rule 4 provides that an order for injunction may be discharged, varied or set aside and Rule 5 provides that an injunction directed to a corporation is binding on its officers.
11. The expression "interlocutory" means provisional, interim or temporary, but not final. Similarly the term "temporary" in the expressions "temporary injunction" means provisional and interim, and, therefore orders of temporary injunction cannot by their very nature be final. From a plain conjoint reading of Section 104 read with Order 43 Rule (1) (r) it is apparent that, notwithstanding the characteristics of 'interim', 'provisional' or 'temporary' nature of the orders, an appeal lies from any order passed under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order 39. They have been expressly made appealable, if they are passed under Rules 1, 2, 2-A, 4 and 10. An ex parte order of injunction made under Order 39 will fall either under Rule 1 or Rule 2. Thus, an ex parte order of temporary injunction, whether provisional, temporary or interim rendered under Order 39 Rules 1 and 2 CPC is appealable.”
Learned counsel for the respondent, on the other hand, submits that the order dated 28.8.2018 cannot be said to have been passed while exercising power under Order 39 Rule 1 CPC, inasmuch as, for passing any interlocutory or final order of temporary injunction under Order 39 Rules 1 and 2 CPC, the Court concerned has to see that three ingredients of grant of interim injunction namely (a) prima facie case; (b) balance of convenience and (c) irreparable loss or injury is made out by the plaintiff. No temporary injunction order whether interlocutory or final can be granted by the trial court without considering these three factors. The order impugned dated 28.8.2018, therefore, can be said to have been passed only in exercise of the inherent power of the trial court under Section 151 CPC.
The said order, therefore, cannot be said to be appelable under Order 43 Rule 1(r) of the Code of Civil Procedure.
Dealing with the said submission, this Court finds that the observations made by the Division Bench in the case of Cosmopolitan Club (supra) cannot be read as a ratio applicable in the instant case, inasmuch as, the said matter has been decided in the facts and circumstances of that case itself. The First appellate court therein had rejected the preliminary objection as to the maintainability of that appeal.
The observation in paragraph '7' that both orders of “ex-parte interim injunction” or “interim injunction after notice” or “interim injunction after deciding the application 6C” are all the interim injunction which are referable to Order 39 Rule 1 CPC and that such an order is appelable under Order 43 Rule 1 (r) CPC has not been made therein considering the legal position for grant of temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. As to the facts of that case and the circumstances in which the temporary injunction order was granted during pendency of Order 39 Rules 1 and 2 application and the first appeal under Order 43 Rule 1(r) was entertained, are not before this Court. There is no discussion about the said issues in the judgment of the Division Bench.
For the aforesaid, the submission of learned counsel for the petitioner/defendant that any kind of interim protection granted to the plaintiff till disposal of the application under Order 39 Rule 1 (temporary injunction application), would fall within the meaning of temporary injunction under Order 39 Rule 1 CPC, is not acceptable.
Such is the situation which can be seen from the judgment of the coordinate bench in Shikha Wadhwa (supra).
Now, it would be pertinent to note the provisions as contained in Order 39 Rules 1 and 2 of the Code of Civil Procedure:-
Order 39 Rules 1 and 2 :-
"1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any properly in dispute in the suit,] the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until tile disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.-
(1) In any suit for restraining the defendant from committing a breach of' contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract, or injury of a like kind arising cut of the same contract or relating to the same property or right.
(2) The Court may be order grant such injunction, on such terms as to the of the durations injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."
From a careful perusal of the provisions as contained in Rule 1 of the Order 39, it is evident that the trial court i.e. the Court before which suit is instituted, is empowered to grant temporary injunction in order to protect the suit property from being wasted, damaged or alienated by any party to the suit or if the defendant threatens or intends or remove or dispose of his property with a view to defraud his creditors or the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
Thus, the Court trying the suit, is empowered to grant a temporary injunction order to restrain such act or make such order for the purpose of staying and preventing the wasting, damage, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit, as it thinks fit, until the disposal of the suit or until further orders.
The law relating to grant of temporary injunction under Order 39 Rules 1 and 2, is fairly well settled. The Court granting injunction is required to consider three basic principles namely (a) prima facie case; (b) balance of convenience and inconvenience; and (c) irreparable loss and injury, while granting injunction taking into consideration the conduct of parties. [Reference may be made to the judgment of the Apex Court in Makers Development Services Private Limited vs. M. Visvesvaraya Industrial Research and Development Centre reported in 2012 (1) SCC 735].
In any case, final relief by way of interim order is impermissible. [Reference may also be made to the judgment of the Apex Court in BSNL vs. Prem Chand Premi reported in 2005 (13) SCC 505] It has also been settled by the Apex Court in Best Sellers Retail (India) Private Limited vs. Aditya Birla Nuvo Limited and others reported in 2012 (6) SCC 792 that only making out a prima facie case in favour of the party seeking relief i.e. plaintiff is not enough. It must also be shown that injury suffered by the plaintiff in case of refusal of temporary injunction would be irreparable.
In Rayat Shikshan Sanstha vs. Suneel Shiva Gaikwad reported in 2010 (15) SCC 539, it has been held that while granting or rejecting injunction recording of reasons is mandatory.
The law relating to grant of ex-parte interim injunction order within the scope of power under Order 39 Rule 3, however, proceeds on a different principle and this Court is not concerned with the said provision, inasmuch as, admittedly in the instant case, interim injunction has been granted in the presence of the defendant while inviting Amin report.
In the light of the above principle of grant of temporary injunction under Order 39 Rules 1 and 2 CPC, it would be relevant to go through the order dated 28.8.2018, which is impugned in the present petition.
A careful reading of the said order indicates that the trial court has simply recorded the claim asserted by the plaintiff, the documents filed by him and that the defendant did not file any written statement or objection to the temporary injunction application and has further proceeded to observe that without getting a report regarding correct position of the spot, it is not possible to decide 6C application i.e. temporary injunction application under Order 39 Rules 1 and 2 CPC. It then proceeded to call for the Amin report and granted protection to the plaintiff till the Amin report is received.
There is no discussion or reasons being given by the trial court for passing interim injunction restraining the defendant (vagely) from doing any illegal act in relation to the suit property.
The said order, in the considered opinion of this Court, would not come within the meaning of an interlocutory order or temporary injunction order under Order 39 Rules 1 and 2 CPC. Such an order, therefore, cannot be said to be a temporary injunction order though being interlocutory, giving rise to the appeal under Order 43 Rule 1(r) of the Code of Civil Procedure.
For the above discussion, the judgments relied upon by the learned counsel for the respondent/plaintiff are distinguishable in the facts and circumstances of the instant case.
Having said so, it is noticeable that the trial court is extending the interim injunction order granted on 28.8.2018 simply for the fact that the Order 39 Rule 2 application is pending before it.
Learned counsel for the defendant, however, submits that he has a reasonable apprehension that the plaintiff would succeed in getting the interim injunction order extended by delaying the disposal of the 6C application and further submits that the trial court is not proceeding with the required pace.
Considering the said submission, it is directed that the trial court shall make all endeavour to decide the temporary injunction application on the next date fixed.
Both the counsels for the parties submit that the plaintiff and the defendant undertake that they will not seek any adjournment on the next date fixed for disposal of temporary injunction application. The objection to the Amin report, if not filed till date, shall be filed by both the parties, if advised, on or before the next date fixed.
The trial court is, therefore, directed to decide the temporary injunction application considering the objections of the parties on the Amin report, if filed. In any case, no adjournment shall be granted on any of the grounds to any of the parties.
In case of any other circumstance, which is not under control of the trial court or the parties, if injunction application is not decided, it shall fix an early date within a period of two weeks, thereafter, for final disposal of the temporary injunction application.
It is further made clear that in case of any adjournment by the plaintiff, on any of the grounds, on the date fixed for disposal of the temporary injunction application, the trial court shall not extend the interim injunction granted on 28.8.2018.
Subject to the above observations and directions, the present petition is disposed of.
Order Date :- 25.2.2019 Brijesh (Sunita Agarwal, J.)