- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 25-1-1995 passed by Munsif East Allahabad granting ex parte interim injunc tion restraining the petitioners from making any constructions over the disputed land and the order dated 16-3-1995, passed by respondent No. 1 affirming the said order in appeal and remanding the matter and directing the trial court to decide the injunction application expeditiously.
(2.) THE facts in brief are that respondent No. 3 filed Suit No. 124 of 1395 against the petitioners in the Court of Munsif Bast Allahabad for per manent injunction restraining them from raising any constructions over the disputed land mentioned by letters ABCD arid interfering in the possession of the plaintiff. It was alleged that Smt. Ram Rati, mother of the plaintiff had two daughters namely Smt. Indrani (plaintiff) and Smt. Lalwati, defendant petitioner. After the death of their parent, they inherited the disputed pro perty. THE disputed property is a land mentioned by letters ABCD in the plaint map. THE petitioner-defendants illegally started digging the foundation on the land in dispute for the purpose of raising illegal constructions. THE plaintiff also filed an application for ad-interim injunction on 25th January, 1995. THE trial court granted ex pane injunction restraining defendants from raising an) constructions to maintain the status quo and directed the plaintiff to serve notices to the defendants and also directed the plaintiff to comply with the provisions of Order XXXIX, Rule 3, C. P. C. for taking steps. THE petitioners against the ex parte injunction order dated 23th January, 1995 preferred Misc. Civil Appeal No. 32 of 1995 before the District Judge Allahabad. THE said appeal has been dismissed by respondent No. 1 vide order dated 16th March, 1995. Respondent No. 1 has passed the order directing the trial court to dispose of the injunction application after consider ing the objections of the petitioners. THE petitioners have filed the present writ petition against this order. Learned counsel for the petitioners urged that the trial court granted ex parte injunction order without following the procedure prescribed by Order XXXIX, Rule 3, C. P. C. inasmuch as the petitioners were not heard be fore the injunction order was granted. It was incumbent upon the trial court to first issue the notices to the petitioners and only after hearing the parties it could have passed the order for injunction. Learned counsel for the petitioner has placed reliance upon Raj Kamal Rastogi v. Mool Chand, 1989 ALJ 957, wherein it was held that an ex parte mandatory injunction should be granted only in every grave cases and the order of the trial court directing the defen dants to remove the tinshed supported by pillars and poles without notice to the defendants was erroneous. In Road Flying Carrier v. G. E. C. of India Ltd. , AIR 1990 All 134, the Court held that the provisions of Order XXXIX, Rule 3, C. P. C. are mandatory and the Court issuing ex pane mandatory injunction against the defendants to deliver the custody of the goods entrust ed to it for the purpose of transport by the plaintiff caused prejudice to the defendants. The Court, however, clarified that in exceptional cases the Court can grant injunction without hearing the defendants if it finds that object granting injunction would be defeated by the delay. There is no absolute bar under Order XXXIX, Rule 3, C. P. C. that the Court cannot grant an ex parte injunction if grave injustice will be caused or the object of granting injunction would be defeated on account of the delay. The Court can for the reasons recorded by it, even before service of notice on the respondents can grant the injunction. This depends upon the various facts and the main test would be as to whether the delay in granting the injunction would defeat the object of granting the injunction if it is ultimately found that the plaintiff was entitled to such an injunction and also in those cases where it is necessary to protect and preserve the property in dispute. The trial court while granted ex parte injunction recorded the reasons that it is necessary to protect the property and with this view it passed the order restraining the defendant-petitioners from raising any constructions over the land in dispute.
(3.) IN Harish Chander Verma v. Kayastha Pathshala Trust, JT 1988 (1) SC 625, wherein the High Court had permitted to raise the constructions subject to the condition that in the event of the decree being affirmed the construction shall be pulled down. The Supreme Court allowed the appeal holding that the status quo should have been maintained and directed to maintain status quo. This decision was followed in Ram Kalap v. IVth A. D. J. Gorakhpur, 1990 RD 15, wherein the Court held that where the decree for permanent injunction has been sought it would not be appropriate to permit the defendant to raise the construction subject to the condition that in the event of the decree being affirmed the construction shall be pulled down. It is appropriate that the parties be permitted to maintain the status quo during the pendency of the case. IN the present case, on the allegations made in the plaint that the plaintiff and her sister both were co-sharers of the property and the constructions were sought to be made on the joint land, the trial court was bound to maintain the status quo till the application could have been finally disposed of for grant of interim injunc tion. The trial court has recorded a reason for it. There is no illegality in such an order. Learned counsel for the petitioners next contended that the Court should have considered prima facie case, the balance of conveniences of the parties and the irreparable loss and injury which may be caused to the plain tiff in case the injunction is not granted and if it is granted the injury which may be caused to the defendants. He has placed reliance upon the decisions - Hazrat Surat Shah Urdu Education Society v. Abdul Saheb, 1988 AWC 1485, Deepali Bhattacharya v. Ramji, 1991 ACJ 8 and Uttar Pradesh State Sugar Corporation Ltd. v. M/s. Raza Buland Sugar Co. Ltd. Rampur, 1985 ALJ 1017.;