Dismissed

Veena Devi v. Ramakant and Another

Allahabad HC28 Jan 2021FAFO/45/2021

Case brief

AI extract

What is this about?

This appeal challenged an order granting an ex parte injunction against the appellant (defendant in suit). The civil court held that defendant conduct justified bypassing notice under Order 39 Rule 3. This higher court found no merit in the claim that the injunction object would be defeated by delay and dismissed the appeal.

What did the court decide?

Appeal filed against ex parte injunction is dismissed, upholding the lower court order.

Veena Devi Vs Ramakant and Another — Property and Title | Allahabad HC (2021)

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Court No. - 1

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Case :- FIRST APPEAL FROM ORDER No. - 45 of 2021

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Appellant :- Veena Devi Respondent :- Ramakant And Another Counsel for Appellant :- Arpit Agarwal

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Hon'ble Vivek Agarwal,J.

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Heard Sri Aakash Gupta along with Sri Arpit Agarwal, learned counsel for the appellant.

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This appeal has been filed by the defendant being aggrieved of the order dated 07.10.2020 passed by learned Civil Judge, Sr. Division, Pilibhit granting ex parte injunction in relation to the subject matter of the suit property directing the defendants to not to interfere in the peaceful possession of the plaintiff.

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Appellant's contention is that there was no material on record to show that property was liable to be misappropriated or that, if ex parte injunction is not granted, then object of granting the injunction would be defeated by delay. It is submitted that, in fact, present appellant is in possession of the suit property and, therefore, there was no occasion for the trial court to have granted ex parte injunction.

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As per the provisions contained in Order 39 Rule 1 C.P.C., it is provided that in which type of cases, temporary injunction can be granted, an amendment has been made in Clause-(a) for Allahabad, whereby "or wrongfully sold in execution of a decree" and in the last para, the word "sale" after the words damaging, alienation" have now been inserted which were deleted by former amendment.

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The settled principal is that, while passing an order of injunction under Order 39 Rule 1 and 2 C.P.C., Court is required to consider three basic principles, namely, (a) prima

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facie case (b) balance of convenience and inconvenience, and (c) irreparable loss and injury. While granting injunction, court is also required to take into consideration the conduct of the parties.

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Requirements of Rule 3 of Order 39 is that except where it appears that object of granting the injunction would be defeated by the delay before granting an injunction, notice of the application is to be given to the opposite party. However, as per the proviso below, Rule 3, a court is entitled to grant an injunction witout giving notice of the application to the opposite party after recording the reasons for the same.

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In the present case, Court has recorded the reasons and has also appreciated the conduct of the parties, inasmuch as, that owner of the property namely Smt. Nattho Devi, who was grand mother of the plaintiff had executed a registered gift deed on 27.04.2018, in pursuance of which, plaintiff was put into possession, whereas, it was alleged that defendants intend to capture the said property and are making open declarations in this regard with the connivance of the police. This piece of evidence especially the conduct of the defendants as canvassed demonstrates that, there was sufficient material for the trial court to have invoked the proviso below Rule 3 of Order 39 and on this ground, no indulgence is required at this stage. Notices have alredy been issued to the present appellants and if there is any misrepresentation by the plaintiff and if it is true as has been submitted by the appellants that, they are in possession and plaintiffs canvassed a false or incorrect case, then they are free to move an application under Order 39 Rule 4, wherein, first proviso below Rule 4 provides that "if an application for temporary 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

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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."

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In view of such facts and legal provision, this Court is not inclined to interfere in the impugned order. Therefore, appeal fails and is dismissed.

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Order Date :- 28.1.2021 Ashutosh

Veena Devi v. Ramakant and Another

Case brief

What is this about?

What did the court decide?

Veena Devi v. Ramakant and Another

Case brief

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What did the court decide?

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