- (1.) THIS is an appeal under Section 271 of the U. P. Tenancy Act, 1936 by defendant.
(2.) PLAINTIFF filed a suit in the revenue court for protection his interest in the disputed land. He applied for an order of temporary injunction against defendants. An ex-pane ad-interim order of injunction restraining defendant No. 1 from interfering with the possession of plaintiff and not to change the nature of the property or to transfer the same, having been passed, this appeal has been filed. At this stage, assertion in the plaint and affidavits in this Court are the materials available for the purpose of considering whether an ex pane ad-interim order of injunction sought to be maintained or interferred, with Mr. Faujdar Rai, learned Counsel for appellant has brought to out notice the decision of Supreme Court reported in 1993 ACJ 636, Shiv Kumar Chadda v. Municipal Corporation Delhi and others, to submit that restrictive procedure in passing ad-interim order of injunction not have been followed as explained by Supreme Court, the impugned order is vulnerable and is liable to be set aside. He has relied upon the result of the decision of the Supreme Court setting aside the order as well as two decisions of this Court reported in AIR 1990 Allahabad 134 - Road Flying Carrier and another v. The General Electric Company of India Ltd. and 1992 (2) ACJ 1170 - Triveni Structural Ltd. v. Newage Enter, where such orders have been set aside by this Court. On the strength of the decisions Mr. Rai submitted impugned order should not be allowed to operate for a moment. Mr. Pankaj Naqvi, learned Counsel entering caveat for plaintiff-respondent submitted that trial court, no doubt, ought to have indicated the reason while passing an ad-interim order of injunction. However, in absence of such reason when appellant can file objection and the materials before the court on the basis of which the question can be adjudicated upon, this Court in appeal without any material should not interfere with the order when the circumstances have not been indicated, which would prejudice appellant in any manner that the position would be irretrievable.
(3.) NO doubt appeal lies against an ex-parte ad-interim order of injunc tion. Where the provisions contained in the Code of Civil Procedure, 1908 as have been explained by the Supreme Court and this Court, have not been followed the order becomes vulnerable. However, appellate court has a duty also to finalise the matter on the materials available, merely because some illegality has been committed or some materials have not been considered by the trial court, appellate court would not in all circumstances set aside the order and remit it back. This is jurisprudence behind an order of remand, which is to be adopted. In the present case, we are satisfied that trial court ought to have considered the provisions of law and ought to have recorded reason before granting ex-parte ad-interim order of injunction, possibly because the Revenue authorities are not well equipped with the change in law, this mistake has been committed. We are sure that State Government shall take steps to train up the authorities discharging judicial function to keep pace with the change in law as well as the pronouncements of the higher courts. In case such steps have been taken and yet an officer is following the same, State Government should take steps to see that he does not exercise such power to the determinant litigants.;