NAGAR NIGAM Vs. GORAKHPUR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Impugned herein is the order dated 16.6.2004, passed by the District Judge, Gorakhpur in Civil Revision No. 128 of 2004 by which parties were directed to maintain present position till the' date fixed (11.7.2004) for disposal of injunction application.

(2.) From a perusal of the record, it transpires that O.S. No. 292 of 2004 was instituted by the plaintiff respondents for the relief of permanent injunction to restrain the defendants from interfering with the possession of the plaintiffs over the property described in the plaint map by letters Ka, Kha, Ga, Gha, Cha. The boundaries of the property have also been enumerated in the plaint. It would further transpire that trial court, i.e.. Civil Judge (S.D.) Gorakhpur on 16.6.2004, merely issued notices to the opposite parties fixing 11.7.2004 for disposal of injunction application and aggrieved by the order, a revision was preferred the same day before the District Judge who passed the order impugned herein. It is in the above backdrop that the present petition has been instituted for the relief.

(3.) The learned counsel appearing for the petitioner assailed the order canvassing that on a careful consideration of the materials brought on record, the trial court opined not to grant ad interim injunction sans opportunity of hearing to the defendants and therefore, merely issued notices to the opposite parties but the revisional court without observing in compliance the mandatory requirements of Order XXXIX, proviso to Rule 3, proceeded to pass order of injunction without recording any reasons. The learned counsel further canvassed that the order having been passed in utter disregard of mandatory provisions of Order XXXIX, proviso to Rule 3, is manifestly erroneous in law and is liable to be quashed. The learned counsel lastly submitted that no revision lay as there was no order passed by the trial court rejecting application for injunction and merely notices had been issued Per contra, learned counsel appearing for opposite parties tried to prop up the Impugned order contending that reasons in Justification of the order have to be gleaned from the memo of revision itself, which clearly vouched for extreme urgency of passing injunction in the matter. He further contended that the order was rightly passed considering the facts and circumstances and sltuational urgency and no interference is, therefore, called for in the matter. The learned counsel for the respondents also canvassed that once an application is moved praying for interim injunction attended with a statement of certain exigencies, refusal to pass any order of injunction and merely directing to issue notices, would amount to refusal to pass order at that stage and as such the said order could be challenged by the superior court.