ISRAR Vs. DISTRICT JUDGE SAHARANPUR

JUDGEMENT

(1.) The petitioner Nos. 1 and 2 filed Original Suit No. 610 of 1987, against the opposite party No. 4 Mohammad Shafique. While the opposite parties Nos. 4 to 8 had filed Original Suit No. 509 of 1997 against the petitioners. Both the suits were filed against each other by the parties and claiming for injunction, concerning the same suit property. In both the suits application for temporary injunction was filed by the respective plaintiffs. Learned trial court directed for issuance of notice in both the cases. Being aggrieved both the parties preferred two civil revisions being Civil Revision No. 167 of 1997 and Civil Revision No. 200 of 1997. Both the civil revisions were disposed of by a common order dated 6th March. 1998 passed by the learned District Judge, Saharanpur, dismissing both the civil revisions and directing the trial court to decide the application for temporary injunction after affording opportunity to the parties. These orders have been challenged by the petitioners in the present writ petition.

(2.) Sri Vikram Nath, learned counsel for the petitioners points out that under Rule 3 it is incumbent on the Court to record reasons as to why it is not granting ex-parte injunction while issuing notices only. In the present case the trial court had failed to exercise its jurisdiction in directing for issue of notice only without granting ad interim injunction having applied its mind to the facts and circumstances of the case. He further contends that the learned revisional court has dismissed both the civil revisions without coming to the finding that the order passed by the trial court was correctly passed and was valid and legal and without coming to any finding that this was not a case where injunction should have been granted only after issue of notice and not before. According to him, without any such finding simply because the parties are appearing against each other in the respective suits, civil revision was dismissed, is altogether a misplaced ground. Therefore, both the orders passed by the trial court and the revisional court should be set aside and injunction order should be granted. In support whereof he contends that the revisional court has granted ad interim injunction after having found that the delay would defeat the object and, therefore, it is a fit case where injunction should have been granted by the revisional court when once it had found that it is a fit case for grant of injunction.

(3.) Sri C.B. Singhal, learned counsel for the respondents on the other hand contends that the order that was passed is under Order XXXIX. Rules 1 and 2 and therefore, the same is appealable and the revision was not maintainable. Therefore it is not open to the learned counsel for the petitioners to challenge the said order passed in the revision. He also contends that even on merit also there is nothing which will entitle the petitioners for an injunction order. He then contends that by this time both the parties have received notices and therefore the question of grant of ad interim injunction, without notice has become redundant and, therefore, the order passed by the revisional court is legal and valid.