Order XXXIX Rule 3 of CPC are applicable and the same is set out hereunder: Rule 3. Before granting injunction Court to direct notice to opposite party:- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: 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, and require the applicant - (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with - (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies; and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. 8. It is thus clear that ordinarily the Court shall not grant any injunction or interim relief as prayed for without issuing notice to the adversary, but the Legislature has carved out an exception when without issuing a notice, an order of injunction can be passed. The word shall, succeeding the word Court in the proviso, clearly denotes that it is mandatory.
THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR
Writ Appeal No.111 of 2015
19-2-2015
P.Gayazuddin and others Appellants
The State of Andhra Pradesh Rep. by its District Collector Y.S.R. District,
Kadapa and others Respondents
COUNSEL FOR APPELLANTS : Sri A. Srinath
COUNSEL FOR RESPONDENT NOs.1 to 3: Government Pleader for Revenue
(Andhra Pradesh)
COUNSEL FOR RESPONDENT NO.4 : Government Pleader for Home
(Andhra Pradesh)
COUNSEL FOR RESPONDENT NOs. 5 to 7 : None appeared
COUNSEL FOR RESPONDENT NOs.8 to 16 : Sri P.V.N. Kiran Kumar
<GIST:
>HEAD NOTE:
?CITATIONS: (1993) 3 SCC 161
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL NO.111 OF 2015
ORDER: (per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
Learned counsel for the writ petitioners respondents appears and
submits that the appeal may be disposed of finally.
2. This appeal is directed against the interim order passed by the
Honble Trial Judge in the writ petition filed by the writ petitioners
respondents, namely, Shaik Nasreeen and others. In the writ petition it
has been alleged that the official respondents, namely, respondent Nos.3
and 4, the Tahsildar and the Circle Inspector of Police concerned, are
disturbing and are interfering with lawful construction of the structure on
the land the patta of which has been granted in favour of the petitioners.
It was contended that the said patta is still valid and subsisting and it has
not been cancelled and hence so long as the patta remaining valid and
subsisting, no one can interfere or obstruct enjoyment of the property in
question by the petitioners.
3. On the other hand, learned counsel for the appellants contended
that selfsame plot of the land has been purchased by the appellants.
Such contention is denied and disputed by the learned Lawyer for the writ
petitioners respondents.
4. In any view of the matter, the Honble Trial Judge without
considering the prima facie case and balance of convenience, passed an
ad interim order without issuing any notice to the appellants.
5. According to the learned counsel for the appellants the impugned
ad interim order, without complying with the provisions of Order XXXIX
Rule 3 of the Code of Civil Procedure, which has been adopted by the Writ
Rules of this Court, is not legally sustainable. No reasons have been
recorded as to why service of notice as mentioned in the aforesaid Rule
was dispensed with. Even prima facie case has not been considered. It
is a cryptic interim order of stay.
6. Learned counsel for the writ petitioners - respondents, on the other
hand, says that the land belong to his clients on the strength of a patta
they are constructing dwelling units and the Tahsildar and the Circle
Inspector in collusion with the appellants are disturbing and obstructing
the writ petitioners.
7. After hearing both the learned counsel, we find force in the
argument of the learned counsel for the appellants that by virtue of the
Writ Rules, the provision of Order XXXIX Rule 3 of CPC are applicable and
the same is set out hereunder:
Rule 3. Before granting injunction Court to direct
notice to opposite party:- The Court shall in all cases,
except where it appears that the object of granting the
injunction would be defeated by the delay, before granting an
injunction, direct notice of the application for the same to be
given to the opposite party:
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, and
require the applicant -
(a) to deliver to the opposite party, or to send to him by
registered post, immediately after the order granting the
injunction has been made, a copy of the application for
injunction together with -
(i) a copy of the affidavit filed in support of the
application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant
relies; and
(b) to file, on the day on which such injunction is granted
or on the day immediately following that day, an affidavit
stating that the copies aforesaid have been so delivered or
sent.
8. It is thus clear that ordinarily the Court shall not grant any
injunction or interim relief as prayed for without issuing notice to the
adversary, but the Legislature has carved out an exception when without
issuing a notice, an order of injunction can be passed. The word shall,
succeeding the word Court in the proviso, clearly denotes that it is
mandatory. The Court has to form an opinion with reasons that the
object of granting injunction would be defeated by delay, in event prior
notice is served, then in that case, without giving any notice to the
opposite party, an ad interim ex parte order can be passed. According to
us, it is not a mere legal formality and it is the duty of the Court. But, we
feel that in which case and under what circumstances, an ad interim order
can be granted is the duty of the Court to examine and take decision. In
this case, the Honble Trial Judge has not recorded any reasons as a
result, has failed to discharge the duty as mentioned in the proviso. The
Court has to act on the assistance of the learned Lawyers and we think
that such assistance was not rendered properly as a result mandatory
requirement envisaged in the law has not been fulfilled. On this ground
alone we would have set aside the order and remanded for fresh hearing.
We think in this case instead of taking recourse to the sort of measure, we
examine this case whether ad interim order was warranted at all.
9. Going by the materials, it appears to us that if prior notice were
served on the appellants, the writ petitioners - respondents would not
suffer irreparable loss because of alleged stoppage of construction for one
or two days, nor there would have been grave affectation worth
mentioning. Under these circumstances, we think, in this case, the
Honble Trial Judge was not justified to issue an ad interim order of
injunction without issuing prior notice. It is not a case where exceptional
provision as explained could be invoked. The aforesaid legal position has
been explained by the Supreme Court in Shiv Kumar Chadha v. Municipal
Corporation of Delhi .
10. Now we examine whether the Honble Writ Court should have
entertained the writ petition or not. It appears in the garb of alleged over
action of the official respondents protective order is passed by the Writ
Court against private individuals. The allegations in the writ affidavit, in
our view, in reality directed against the appellants - unofficial
respondents. There is no material in this case to hold that there has been
over action of the official respondents to show interference has been
made illegally by the official respondents.
11. We think the order asking the official respondents to act in
accordance with law, in the fact and situation in this case, would suffice
and we order accordingly. The parties will be free to approach
appropriate forum to get their inter se disputes as regards title and
possession settled before appropriate Civil Court. It is also open for the
parties to ask for interlocutory orders in the form of injunction or in any
other form before appropriate Court. In view of this judgment, nothing
remains to be adjudicated in the writ petition. It would therefore be open
for the writ petitioners, or for that matter the parties concerned, to get
the writ petition disposed of technically.
12. The writ appeal is accordingly disposed of. There will be no order
as to costs.
________________________
K.J. SENGUPTA, CJ
______________________
SANJAY KUMAR, J
19.2.2015
Writ Appeal No.111 of 2015
19-2-2015
P.Gayazuddin and others Appellants
The State of Andhra Pradesh Rep. by its District Collector Y.S.R. District,
Kadapa and others Respondents
COUNSEL FOR APPELLANTS : Sri A. Srinath
COUNSEL FOR RESPONDENT NOs.1 to 3: Government Pleader for Revenue
(Andhra Pradesh)
COUNSEL FOR RESPONDENT NO.4 : Government Pleader for Home
(Andhra Pradesh)
COUNSEL FOR RESPONDENT NOs. 5 to 7 : None appeared
COUNSEL FOR RESPONDENT NOs.8 to 16 : Sri P.V.N. Kiran Kumar
<GIST:
>HEAD NOTE:
?CITATIONS: (1993) 3 SCC 161
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL NO.111 OF 2015
ORDER: (per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
Learned counsel for the writ petitioners respondents appears and
submits that the appeal may be disposed of finally.
2. This appeal is directed against the interim order passed by the
Honble Trial Judge in the writ petition filed by the writ petitioners
respondents, namely, Shaik Nasreeen and others. In the writ petition it
has been alleged that the official respondents, namely, respondent Nos.3
and 4, the Tahsildar and the Circle Inspector of Police concerned, are
disturbing and are interfering with lawful construction of the structure on
the land the patta of which has been granted in favour of the petitioners.
It was contended that the said patta is still valid and subsisting and it has
not been cancelled and hence so long as the patta remaining valid and
subsisting, no one can interfere or obstruct enjoyment of the property in
question by the petitioners.
3. On the other hand, learned counsel for the appellants contended
that selfsame plot of the land has been purchased by the appellants.
Such contention is denied and disputed by the learned Lawyer for the writ
petitioners respondents.
4. In any view of the matter, the Honble Trial Judge without
considering the prima facie case and balance of convenience, passed an
ad interim order without issuing any notice to the appellants.
5. According to the learned counsel for the appellants the impugned
ad interim order, without complying with the provisions of Order XXXIX
Rule 3 of the Code of Civil Procedure, which has been adopted by the Writ
Rules of this Court, is not legally sustainable. No reasons have been
recorded as to why service of notice as mentioned in the aforesaid Rule
was dispensed with. Even prima facie case has not been considered. It
is a cryptic interim order of stay.
6. Learned counsel for the writ petitioners - respondents, on the other
hand, says that the land belong to his clients on the strength of a patta
they are constructing dwelling units and the Tahsildar and the Circle
Inspector in collusion with the appellants are disturbing and obstructing
the writ petitioners.
7. After hearing both the learned counsel, we find force in the
argument of the learned counsel for the appellants that by virtue of the
Writ Rules, the provision of Order XXXIX Rule 3 of CPC are applicable and
the same is set out hereunder:
Rule 3. Before granting injunction Court to direct
notice to opposite party:- The Court shall in all cases,
except where it appears that the object of granting the
injunction would be defeated by the delay, before granting an
injunction, direct notice of the application for the same to be
given to the opposite party:
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, and
require the applicant -
(a) to deliver to the opposite party, or to send to him by
registered post, immediately after the order granting the
injunction has been made, a copy of the application for
injunction together with -
(i) a copy of the affidavit filed in support of the
application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant
relies; and
(b) to file, on the day on which such injunction is granted
or on the day immediately following that day, an affidavit
stating that the copies aforesaid have been so delivered or
sent.
8. It is thus clear that ordinarily the Court shall not grant any
injunction or interim relief as prayed for without issuing notice to the
adversary, but the Legislature has carved out an exception when without
issuing a notice, an order of injunction can be passed. The word shall,
succeeding the word Court in the proviso, clearly denotes that it is
mandatory. The Court has to form an opinion with reasons that the
object of granting injunction would be defeated by delay, in event prior
notice is served, then in that case, without giving any notice to the
opposite party, an ad interim ex parte order can be passed. According to
us, it is not a mere legal formality and it is the duty of the Court. But, we
feel that in which case and under what circumstances, an ad interim order
can be granted is the duty of the Court to examine and take decision. In
this case, the Honble Trial Judge has not recorded any reasons as a
result, has failed to discharge the duty as mentioned in the proviso. The
Court has to act on the assistance of the learned Lawyers and we think
that such assistance was not rendered properly as a result mandatory
requirement envisaged in the law has not been fulfilled. On this ground
alone we would have set aside the order and remanded for fresh hearing.
We think in this case instead of taking recourse to the sort of measure, we
examine this case whether ad interim order was warranted at all.
9. Going by the materials, it appears to us that if prior notice were
served on the appellants, the writ petitioners - respondents would not
suffer irreparable loss because of alleged stoppage of construction for one
or two days, nor there would have been grave affectation worth
mentioning. Under these circumstances, we think, in this case, the
Honble Trial Judge was not justified to issue an ad interim order of
injunction without issuing prior notice. It is not a case where exceptional
provision as explained could be invoked. The aforesaid legal position has
been explained by the Supreme Court in Shiv Kumar Chadha v. Municipal
Corporation of Delhi .
10. Now we examine whether the Honble Writ Court should have
entertained the writ petition or not. It appears in the garb of alleged over
action of the official respondents protective order is passed by the Writ
Court against private individuals. The allegations in the writ affidavit, in
our view, in reality directed against the appellants - unofficial
respondents. There is no material in this case to hold that there has been
over action of the official respondents to show interference has been
made illegally by the official respondents.
11. We think the order asking the official respondents to act in
accordance with law, in the fact and situation in this case, would suffice
and we order accordingly. The parties will be free to approach
appropriate forum to get their inter se disputes as regards title and
possession settled before appropriate Civil Court. It is also open for the
parties to ask for interlocutory orders in the form of injunction or in any
other form before appropriate Court. In view of this judgment, nothing
remains to be adjudicated in the writ petition. It would therefore be open
for the writ petitioners, or for that matter the parties concerned, to get
the writ petition disposed of technically.
12. The writ appeal is accordingly disposed of. There will be no order
as to costs.
________________________
K.J. SENGUPTA, CJ
______________________
SANJAY KUMAR, J
19.2.2015
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