N.N.Mithal - (1.) THIS is an appeal against the order dated 20-4-1989 granting temporary prohibitory as well as mandatory injunction to the plaintiffs- respondents for the removal of the construction on the disputed well and to restore the same in its normal condition.
(2.) AT the time of presentation of the appeal, appearance was put in by the respondents and a counter-affidavit was filed. Subsequently rejoinder- affidavit was also filed and the parties agreed that the appeal may be disposed of at this very stage. In these circumstances the appeal has been heard on merits and the parties submit that all the necessary papers have been filed by them. The dispute relates to an alleged public well which is situate in the heart of a busy market and it is alleged that the public always used it for the purpose of setting up a Piyau for making cold drinking water available to the visitors in the market including outsiders during hot summer months. It is alleged in the plaint that the present appellant got a portion of the well allotted in his favour on a payment of some monthly rent with permission to raise a tin shed supported on pillars or poles. The grievance made was that this will deprive the public at large from the user of the well for setting up the Piyau during summer months. Along with the plaint, an application for interim relief was also made praying that the structures raised by the defendants appellant should be removed pending the suit and the same may be restored to its original position. The application was considered ex-parte and was allowed by the impugned order. Sri N. Lal, learned counsel for the appellant, submitted that on the. allegations made in the plaint, no case for grant of injunction has been made out and the court should not have issued the injunction, as prayed. He also submitted that the Court has not complied with the mandatory provision of Rule 3 of Order 39 CPC and this has seriously prejudiced the appellant. Even reasons for necessity of passing an ex-parte order of injunction have not been recorded in the order. For the above reasons it is submitted that the order of injunction passed by the trial court was illegal and erroneous.
(3.) SRI R. H. Zaidi, learned counsel for the plaintiffs respondents, has, however, supported the decision and submitted that necessary ingredients very much exist in the order and the same should not be examined in a pedantic manner but in a spirit in which the order has been made. During the argument, an effort was made to urge on the merits of the rival claims. A reference in this regard was made to Section 116 of the U. P. Municipalities Act, the appellant's contention being that under the aforesaid section, all public wells situate within the Municipality vested in the Municipal Board and the local Board had the power to manage the same. SRI Zaidi, however, submitted that the aforesaid provision did not apply to all kinds of public well. Be that as it may, it is not proper at this stage to give any opinion on the question as it is likely prejudice the rights of the parties and the same is being deliberately left to be decided by the trial court. The main thrust of the argument of the appellant was that no ex-parte injunction order can be passed by the court without recording clear reasons why, in its opinion, the object of granting injunction would be defeated if there was delay in doing so. In this connection he has heavily relied upon the proviso to Rule 3 of Order 39 which reads as under :- "Provided 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." ;