ASTRAL TRADERS Vs. HAJI MOHD SHABAN DAR
LAWS(J&K)-1982-6-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 02,1982

Astral Traders Appellant
VERSUS
Haji Mohd Shaban Dar Respondents

JUDGEMENT

PER KOTWAL J. - (1.) THIS revision petition which should have been normally heard by a Single Judge is before the Full Bench on a reference made to it by one of us, namely, Honble the Acting Chief Justice. Necessity to make the reference arose because of the cleavage in Judicial opinion on the point as to whether an exparte ad -interim injunction order issued under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure is appealable under 43 Rule 1 r of the Code.
(2.) THE petitioner brought a suit for declaration to the effect that it alone was entitled to use for vehicular traffic the road leading to Compartments Nos: 28 b and 29 c Boniar, with a consequential relief of permanent injunction restraining the respondents from using that road for vehicular traffic. Alongside, an application was made under Rules 1 and 2 of Order 39 for an ad -interim injunction restraining the respondents from plying their vehicles on this road. Sub Judge, Baramulla, in whose court the suit was filed, passed an exparte ad -interim injunction order in these terms.: "I have heard the learned counsel for the plaintiff applicant, perused the documents such as payments made by him to different land owners to use the land for path and also perused the clause 35 of the agreement deed. The application is also supported by an affidavit. Issue notice to other party meanwhile issue temporary injunction as prayed for. The order shall be subject to objections of the other side. Put up the case on due date."
(3.) THE respondents, instead of filing objections challenged the aforesaid order in an appeal before District Judge, Baramulla, who on hearing both the parties, accepted the same by passing a meticulously lengthy and detailed order, the operative part whereof reads as under: ".. .........I have discussed above in para 3 and 20 that there was no material available with the trial court on the basis of which the impugned order could be justified. The order as such is liable to be set aside and I set it aside and remand the case back to the trial court with this direction that it will allow the parties to produce such documents, in a legal manner, on which they rely, obtain the written statement of the defendant, hear the parties afresh and then see whether on the guide lines indicated in para 21 above a case for grant of temporary injunction in terms of the prayer is made out or not........." This order has been assailed by the petitioner on the grounds: firstly, that the District Judge had no jurisdiction to pass it, as no appeal lay against an exparte ad -interim injunction order passed by a court in exercise of its powers under Rule 1 or Rule 2 of Order 39; and secondly that he erred in disposing of the appeal by writing a much too detailed and lengthy judgment, containing observations that tend to determine the rights of the parties before the suit is actually tried. When this revision -petition came up for hearing before Honble the Acting Chief Justice, reliance on behalf of the petitioner was placed upon a Bench decision of the Madras High Court in Abdul Shukoor Sahib Vs. Umachander and others, AIR 1976 Mad. 350, wherein it has been held that no appeal lies under Order 43 Rule 1 r against an exparte ad -interim injunction order issued under Rule 1 or Rule 2 of Order 39. Since the view taken in this authority ran counter to the view taken by a number of other High Courts, he deemed it necessary to refer the whole case to a Full Bench for an authoritative pronouncement. This is how the case is before us. 4 In what circumstances temporary injunction may be issued varied, set aside, or discharged and its disobedience punished, is to be found out in Rules 1 to 4 of Order 39 though apart from these provisions, temporary injunction may also be issued by the court in exercise of its inherent powers u/s 151 C. P. C. where the case is not covered by Rules 1 and 2. Manohar Lal Chopra Vs. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 S C. 527. Whereas under Cl. a of Rule 1 injunction may be issued where the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, whether plaintiff or defendant, Cl b empowers the court to restrain the defendant from removing or disposing of the property, whether subject matter of the dispute or not, where he intends or even threatens to remove or dispose of it with a view to defrauding his creditors. Rule 2 enables the court to grant temporary injunction against a defendant with a view to restraining him from committing a breach of contract or other injury of any kind. Under both these Rules injunction may be issued either till further orders or till the final disposal of the suit. Rule 3 enjoins upon the court to give a notice of the application to the opposite party before issuing a temporary injunction, but at the same time it gives it a discretion to dispense with the same, where it is satisfied that the resultant delay in serving the notice would defeat the very object of the injunction. Rule 4 empowers it to discharge, vary or set aside the injunction order issued by it, if an application is made to that effect by the party dis -satisfied with it.;


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