ASTRAL TRADERS Vs. HAJI MOHD SHABAN DAR

JUDGEMENT

(1.) THIS revision petition which should have been normally heard by a Single Judge is before the Full Bench on a reference made to it by one of us, namely, Honble the Acting Chief Justice. Necessity to make the reference arose because of the cleavage in Judicial opinion on the point as to whether an exparte ad -interim injunction order issued under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure is appealable under 43 Rule 1 r of the Code.

(2.) THE petitioner brought a suit for declaration to the effect that it alone was entitled to use for vehicular traffic the road leading to Compartments Nos: 28 b and 29 c Boniar, with a consequential relief of permanent injunction restraining the respondents from using that road for vehicular traffic. Alongside, an application was made under Rules 1 and 2 of Order 39 for an ad -interim injunction restraining the respondents from plying their vehicles on this road. Sub Judge, Baramulla, in whose court the suit was filed, passed an exparte ad -interim injunction order in these terms.: "I have heard the learned counsel for the plaintiff applicant, perused the documents such as payments made by him to different land owners to use the land for path and also perused the clause 35 of the agreement deed. The application is also supported by an affidavit. Issue notice to other party meanwhile issue temporary injunction as prayed for. The order shall be subject to objections of the other side. Put up the case on due date."

(3.) THE respondents, instead of filing objections challenged the aforesaid order in an appeal before District Judge, Baramulla, who on hearing both the parties, accepted the same by passing a meticulously lengthy and detailed order, the operative part whereof reads as under: ".. .........I have discussed above in para 3 and 20 that there was no material available with the trial court on the basis of which the impugned order could be justified. The order as such is liable to be set aside and I set it aside and remand the case back to the trial court with this direction that it will allow the parties to produce such documents, in a legal manner, on which they rely, obtain the written statement of the defendant, hear the parties afresh and then see whether on the guide lines indicated in para 21 above a case for grant of temporary injunction in terms of the prayer is made out or not........."