M B RATNAM Vs. N ASHOK KUMAR

JUDGEMENT

(1.) This appeal is filed by respondents in I.A.NO. 96 of 2002 in O.S.No. 55 of 2002 on the file of Vacation Civil Judge, Rangareddy District at L.B. Nagar. After summer vacation was over, the said suit was made over to Principal Senior Civil Judge, Rangareddy District at L.B. Nagar for disposal and it is now pending as O.S. No. 415 of 2002 on the file of the said Principal Senior Civil Judge.

(2.) The respondents - plaintiffs filed the suit seeking a decree for perpetual injunction against the appellants. They also filed a petition under Order XXXIX Rules 1 and 2 C.P.C., in I.A.No. 96 of 2002 requesting the trial court to grant temporary injunction order restraining the appellants herein from interfering with their peaceful possession of suit schedule lands. On 13-5-2002 after hearing the learned counsel for the plaintiffs and perusing the documents filed along with the plaint, the learned Vacation Civil Judge dispensed with prior notice to the appellants herein and granted ad interim injunction and posted the interim application to 5-6-2002. Questioning the said ex parte order of injunction granted by the Vacation Civil Judge, this appeal is filed by the appellants.

(3.) The learned counsel for the respondents - plaintiffs contended that the present appeal is not maintainable at this juncture. According to the learned counsel, the appellants defendants can file appeal against the impugned ex parte order of injunction if the trial court fails to dispose of the said application within thirty days from the date of grant of ad-interim ex parte injunction in favour of the respondents herein. The learned counsel for both parties placed reliance on a decision of the Supreme Court in A. Venkatasubbaiah Naidu v. S.Chellappan. The learned counsel for respondents invited the attention of this court to the observations made by the Supreme Court in paras 19, 20 21 of its judgment. According to the Supreme Court a three pronged protection was given by the provisions in Order XXXIX Rule 3 C.P.C., to the party against whom the ex parte injunction order was passed. The protections are (i) the court is obliged to give him notice before passing the order; (ii) the court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days; and (iii) if for any valid reasons the court could not finally dispose of the application within the aforesaid time, the court has to record the reasons thereof in writing. According to the learned counsel as the present appeal is within the expiry of thirty days from the date of ex parte order of injunction, this appeal is not maintainable. I am unable to accept the said contention. In para 20 of its judgment, the Supreme Court was pleased to observe that it is only by way of a very exceptional contingency, the court is empowered to bypass the protective measure, namely, that the court is obliged to give him notice before passing the order. In para 21 of the judgment, the Supreme Court categorically held that under the normal circumstances the party can prefer an appeal only against an order passed under Order XXXIX Rules 1,2,2-A, 4 or 10 C.P.C., in terms of Order XLIII Rule 1 of the Code. The Supreme Court further observed that in a case where the mandate of Order XXXIX Rule 3-A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force.