RAJENDRA SINGH Vs. BRIJ MOHAN AGARWAL

JUDGEMENT

(1.) The Additional Civil Judge (Senior Division), Agra by his order dated 30-9-2002 impugned in this revision has issued notice on the injunction application filed by the plaintiffs/applicants but has not granted any ex parte temporary injunction. The Suit No. 937 of 1993 from which this revision arises was filed by the plaintiffs/applicants for permanent injunction restraining the defendants from alienating the land in suit and from raising constructions over it.

(2.) . Sri P.C. Jain, learned counsel for the defendants/opposite parties has raised a preliminary objection relating to the maintainability of this revision. It is submitted by him that under the proviso of Section 115 C.P.C. as it now stands after the amendment the High Court has been precluded from exercising its revisional power unless the order challenged if passed in favour of the party filing the revision would have disposed of the suit itself or other proceedings. An order issuing notice on an injunction application does not terminate the suit or proceeding.

(3.) . On the other hand Sri Ratnakar Bharti, learned counsel for the applicant submitted that by not passing an ex parte injunction order the Court in effect had dismissed the application. Reliance was placed upon H. Bevis and Co. v. Ram Behari, AIR 1951 All 8 in support of this proposition. In that case the question which fell for consideration was whether an order issuing notice on an injunction application refusing the grant of temporary injunction ex parte could be challenged in revision. It was observed that under Order 39, Rule 3, C.P.C. the Court had to see whether the object of granting the injunction would be defeated by the delay and by not passing an ex parte order the Court in effect had dismissed the application which was likely to become infructuous. It was held that if the Court does not apply mind to the provisions of Order 39, Rule 3, C.P.C. it acts illegally or with material irregularity and a revision may lie. Reliance was placed upon Ajaibul Hassan v. Chiranjee Lal, AIR 1951 All 564 in which it was held that there could be no doubt that where an order has been passed in a proceeding which is separate and independent of the suit or appeal, as the case may be, it would be a 'case decided'. The words separate and independent indicate, it was held, that the proceeding is not part of the main process which leads to the termination of the suit or appeal, but is something detached from the same in the sense that the suit or appeal can be disposed of even without there having been such a proceeding. An application for injunction pending a suit or an application for stay of the order of the trial Court pending an appeal would certainly be a separate and independent proceeding in the sense that it is not a part of the proceeding leading to the termination of the suit or proceeding. Learned counsel for the applicants also relied upon S. S. Khanna v. F. J. Dillon, AIR 1964 SC 497 in which it was held that the expression 'case' is a word of comprehensive import. It includes Civil proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceeding in a civil Court and to interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The observations of which reference has been made in the cases of Ajaibul Hasan and S. S. Khanna above cited were made in the context of the question involved in those cases whether the order under challenge is those cases was a 'case decided' within the meaning of that expression in Section 115, C.P.C.