BLACK MARBLE GRANITES Vs. BIJU

JUDGEMENT

(1.) This C.R.P. is filed against the order dated 2.7.1998 in I.A. 729 of 1998 in O.S. 151 of 1998 of the Munsiffs Court, Aluva. Defendants 2, 3, 5 and 6 are the petitioners. I.A. 729 of 1998 was filed by the plaintiff to restrain the defendants from entering into the plaint schedule property and from destroying the boundary and from constructing a new boundary. The interim injunction was granted on 26.2.1998. The plaintiff had filed an application for appointment of Commissioner and the Commissioner inspected the plaint schedule property and filed report. It seems from the report of the Commissioner that he was not able to identify the property. Thereafter the petitioners therein entered appearance for vacating the injunction. The Court heard the matter on 10.6.1998. No order was pronounced. It was re - opened and posted on 15.6.1998. The matter was reheard on the same day. Again the matter was heard on 22.6.1998 and adjourned for orders on 26.6.1998. Again it was adjourned to 2.7.1998 for orders. On 2.7.1998, the Court suo - moto re - opened the case and directed the plaintiff to deposit Commission batta and Surveyor batta under R.151 of the Civil Rules of Practice, then posted the case to 13.7.1998 for production of treasury receipt for preparation of proper plan. It is challenging that order the present C.R.P. is filed.

(2.) It is most distressing to note that the Court below has not passed orders on the interlocutory application. The Court below has forgotten the mandate of O.39 R.3A CPC that Court shall make endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted. An order of injunction granted ex parte causes injury to the person against whom the order is granted. At the time when the Court originally grants injunction, the order is issued on the basis of the records produced by the plaintiff. The Court does not have an opportunity to see the other side of the picture. But even then extraordinary power to grant an injunction ex parte is granted to the Court in the circumstances of the case. It is the duty of that Court when it issues an ex parte order to comply with its obligations in O.39. In passing an order of injunction, the Court has to satisfy on the basis of the records produced before it. Always it may not be that a person in whose favour an injunction has been granted may finally succeed in the suit. I am not at all satisfied with the proceedings taken by the lower court in adjourning the case from time to time and re - opening it. The Court has now invoked R.151 of the Civil Rules of Practice. Probably, the Court was not satisfied with the report of the original Commissioner, but that does not enable the Court to procrastinate the decision making process till the Commissioner files his report. After the Commissioner files his report, the parties may be filing objections, they may be wanting to examine the Commissioner and why don't the application be posted along with the suit till the Munsiff is satisfied what is the just cause

(3.) After hearing the counsel for the parties, I direct the Court below to consider I.A. 729 of 1998 and pass orders thereon on or before September 10, 1998. I am told that the Commissioner has not inspected the property so far. Hence, it is not necessary to await for the report of the Commissioner.