Supplementary affidavit filed today, is taken on record.
Heard Sri D.P. Singh, learned counsel for the petitioner and Sri A.P. Paul, counsel for the respondent no. 2.
The petitioner is preferred the present petition Under Article 227 of the Constitution of India with the prayer to set aside the order dated 08.10.2020 passed by Civil Judge, (Junior Division), Allahabad in Suit no. 1606 of 2020 (Kundan Kumar Singh vs. Ram Briksha Ram).
Apart from various arguments, one of the argument raised by the counsel for the petitioner is that aforesaid order is absolutely non speaking. Counsel for the petitioner placed reliance upon the judgment passed by the Apex Court in the case of Shiv Kumar Chadha Etc. vs. Municipal Corporation Of Delhi and Ors reported in (1993) SCC (3) 161.
Counsel for the petitioner relied upon the following paragraph of the aforesaid judgment:-
"Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...... "
In this view of the matter, it is argued by the counsel for the petitioner that since the order impugned has been passed in violation of Principles of natural justice, the same is liable to be set aside by this Court.
A preliminary objection has been raised by the counsel for the respondents that against the aforesaid order, a statutory remedy is available to the petitioner to approach the appellate court as provided under Sub-clause (r) of Rule 1 of Order 43 of the Code of Civil Procedure.
In this view of the matter, the Court is of the opinion that present petition under Article 227 of the Constitution of India is not maintainable.
At this point of time, an argument has been raised by the counsel for the petitioner to permit the petitioner to file an appeal as provided under under Sub-clause (r) of Rule 1 of Order 43 of the Code of Civil Procedure before the appellate court.
Heard counsel for the parties and perused the record.
With the consent of counsel for the parties, the present petition stands disposed of finally, permitting the petitioner to file an appeal against the aforesaid order before the appellate court within a period of two weeks from today. If such an appeal is filed appellate court is directed to pass appropriate order within a period of three months thereafter.
With the aforesaid observations, the present petition stands disposed of.
Order Date :- 11.1.2021 Swati