E M AHMU Vs. P S RAMALINGAM

JUDGEMENT

(1.) Has the appellate court in an appeal from an order granting ad interim injunction power to hear and dispose of the appeal on merits This is the precise question that arises in this civil revision petition.

(2.) Elections were recently held in this State for electing members to the District Congress Committee, Kerala Pradesh Congress Committee, Mandalam Committee etc. Elections were proposed to be held in Thrissur District also along with the election in the other Districts. Elections to Booth Committees and elections of the Presidents of those committees and delegates to block committees were conducted on 19-1-1992. The election to the D.C.C. and K.P.C.C. by the members of it block committees so elected was scheduled to be held on 28-1-1992. In the meantime revision petitioner filed the suit O.S. 149/92 before Sub Court, Thrissur seeking an injunction restraining the respsondent, the Returning Officer from conducting the elections to the K.P.C.C. and D.C.C. alleging that the list of elected members had not been published and plaintiff could not file his nomination as a candidate for such election. A mandatory injunction directing respondent to produce the list showing the names of the polling officers and observers and to publish the list of elected members was claimed apart from a prohibitory injunction restraining first defendant from conducting the elections to K.P.C.C. and D.C.C. A petition for temporary injunction was also moved by the plaintiff. An ad interim injunction was granted. Respondent - 1st defendant filed an application for advancement of hearing and hearing of the petition was advanced to 3-2-1992. According to the first defendant the election to K.P.C.C. was scheduled to be held on 31-1-1992 and the election process in Thrissur District had to be completed before that date. An appeal was therefore filed against the order of ad interim injunction before District Court, Thrissur. Revision petitioner took notice of the appeal and entered appearance. The District Court heard both sides and by order dated 30-1-1992 the appeal was allowed and the injunction granted by the Trial Court was vacated. That order is under challenge in this revision.

(3.) Before going to the merits of the contentions raised by both parties before the court below it has to be seen whether the court below was competent to hear the appeal and decide the same on merits. The contention is that the court has virtually heard the temporary injunction petition on merits and has thus exercised jurisdiction not vested in it by law. The order passed by the Subordinate Judge is an order of ad interim injunction under R.1 of Order XXXIX C.P.C. The court is competent to grant an injunction without giving notice to the opposite party though ordinarily the court shall direct notice of the application. The court is empowered to grant an injunction without notice where it appears that the object of granting the injunction would be defeated by the delay. Certain safeguards had been provided for in the amended R.3 of Order XXXIX. The court has to record reasons for its opinion that the object of granting the injunction would be defeated by the delay and has also to require the applicant 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 together with a copy of the affidavit filed in support of the application, a copy of the plaint and copies of documents relied on by the applicant. Either on the day on which the injunction was granted or on the day immediately following that day an affidavit stating that the copies aforesaid had been so delivered or sent has also to be filed by the applicant. This requirement has been introduced in the rule to enable the opposite party to appear and move the court to get the order of injunction discharged or varied or set aside on an application made thereto. By R.3A introduced in Order XXXIX by the amendment of 1976 it is provided that where an injunction has been granted without giving notice to the opposite party the court shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. In case the court is unable to do so it has to record its reasons for such inability. In the present case the court has not finally disposed of the application whereas the final disposal is seen done by the appellate court on the appeal filed against the order granting ad interim injunction.