- (1.) R. K. Mahajan, J. This is a writ peti tion under Article 226 of the Constitution of India praying for quashing of judgment and order dated 29-1-1997 passed by Addi tional District Judge/special Judge, Al lahabad in Misc. Appeal No. 327 of 19% Vilkish Begum and others v. Samarjeet Patel.
(2.) THIS writ petition has arisen from the following facts. Admittedly the case of the plaintiff-petitioner is that he is the owner of the land as described in para No. 2 of the writ petition and he sold 1/5 th of land on 18-6-1980 for a consideration of Rs. 6, 500 to defendant No. 3 and the possession was also delivered to him. The petitioner's case is that he never executed any sale-deed in the year 1985 in favour of respondent No. 1 and 2 at all. It is case of forgery and action of some imposter. It is also admitted case that the plaintiff has given remaining land on lease, as mentioned in para No. 4 of the writ petition, when the respondent No. 1 approached the plaintiff as he wanted to start brick kiln for Rs. 200 per month. The petitioner was receiving lease money but off late no money has been paid and the brick kiln was also not in operation. It is also alleged in the petition that the petitioner has taken some advance for selling land to the defendant-respondent No. 3 by un registered agreement. The simple prayer of the petitioner is that a notice of caveat was received on 18-6-1996 by him before the filing of the suit. He made an enquiry and he came to know after obtaining certified copy from the Sub-Registrar Office that the sale-deed has been executed either by forgery or by imposter. He filed an application under Order XXXIX, Rules 1 and 2 that the respondents be restrained not to challenge the nature of the land and also for running brick kiln. The lower court granted injunc tion on 12-12- 1996. The same is quoted with advantage: "heard the plaintiff's Counsel and perused the record. According to the plaintiff the defendants were lessee of the disputed land which belongs to the plaintiff that the disputed land has fraudulent ly been sold in favour of Smt. Bilkish Begum the defendant No. 1 by some person in place of the plaintiff. The plaintiff never executed the alleged sale-deed. Now on the basis of forged sale-deed the defendant No. 1 and 2 want to change the nature of the suit by running 'bhatta' over it. The plaintiff has filed the extract of khatauni and sale-deed. From the facts of the case it is just and fit that the nature of the land should not be changed otherwise it would lead to multiplicity and com plicity. Issue notice to the opposite parties fixing 1-1-1997 for objection and disposal. In the mean time, the parties shall maintain status quo on the spot and not change the nature of the property in suit. The plaintiff is directed to comply with the provisions of Order XXXIX, Rule 3 CPC forthwith. " Learned Counsel for the petitioner submits that the Additional District Judge has heard the appeal without calling record and when there was no dispute of possession the Commissioner should not have been appointed. He further submits that the simple prayer of the petitioner was that the nature of the land should not be changed. He has further submitted that in spite of filing the appeal the respondent should have showed cause in the lower court and after getting proper order on merits appeal should have been filed. According to learned Counsel for the petitioner the ap peal in the facts and circumstances of the case is not maintainable. Shri M. A. Qadir, learned Counsel for the respondents submit that under Order XLIII, (R) the appeal is main tainable even against an ex pane injunction. There is no doubt that the appeal is main tainable under Order XLIII, C. P. C. The ap peal is also right under statute. The question in this case which arises for consideration is that in every case if an ad interim order is granted and show cause be issued then the appellate Court need to be cautious and circumspect us in admitting the appeal though there is no absolute prohibition in exceptional cases. The intention of the legislature was not to by pass the remedy under Order XXXIX, Rule 4, CPC and. I would like to quote Order XXXIX, Rule 3 and 4, CPCin extensor: "3-A. Court to dispose of application for in junction within thirty days.-Where an injunction has been granted without giving notice to the opposite party, the Court shall make an en deavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability. " "4. Order for injunction may be discharged, varied or set aside.-Any order for an injunction may be discharged, or varied or set aside by the Court, on application made thereto by any party dissatisfied with such order: Provided that if in an application for tem porary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the applica tion of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party. "
(3.) THE legislature in its wisdom thought that in case of emergent cases if a court is satisfied ex-parte injunction is to be granted, notice has to be issued completing all the formalities, as required, then the legislature also expressed the intention that the injunction application so far as possible is to be disposed of within thirty days. Even otherwise it is disposed of expeditiously. If it has been granted without giving notice to the opposite party there is remedy under Order XXXIX, Rule 4, CPC for discharge, setting aside, variation of injunction order. It is now settled principle of law that where the particular procedure has been prescribed Statutory State that has to be followed unless mala fides or other excep tional circumstances are pleaded. Each base has to be adjudged on its facts and substances. Sri Qadir has brought to my notice Full Bench of Allahabad High Court reported in AIR 1970 Allahabad 376 Zila Parishad, Badaun v. Brahma Rishi Sharma in which the court has held as under: "an exparte order issuing temporary injunc tion under Order XXXIX Rules 1 and 2 against the defendants is appealable under Order XLIII, Rule l (r) CPC. It has been head that the language of Rule 1 (r) is up- hedged and broad and the Courts should lean in favour of an interpretation which expands rather 'than shrinks a remedial right. It has been further held that remedial provision is generally construed liberally and Rule l (r) creates a remedial right of appeal for protec tion of substantial and substantive rights. Apart from legal position, there is another reason also for holding that appeal is main tainable. It is this that instances are not unknown where on account of tactics adopted by one party the application to vacate exparte injunction order is not allowed to be heard for a long time. The ex-parte order may be causing serious injury to the other side and if in such a situation the aggrieved party i deprived of his right of appeal, it may have very serious consequences. ";