# Limited v. Jawala Engineering Private

- **Citation:** (2012) 3 ILRA 1545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-19
- **Case number:** Civil Misc. Writ Petition No. 2746 of 2012
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/limited-v-jawala-engineering-private-42358
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
227readwith Order 43 Rule 1(r)-Appeal
against
order
granting
temporary
Injunction
ex-parte-either
can
be
challenged in appeal on to get ex-parte
Decree
set-a-side-writ
against-not
maintainable-in
view
of
Full
Bench
decision.

Held: Para-6

In view of the law laid down by the Full
Bench this writ petition is not maintain
able and is accordingly dismissed.
Case Law discussed:
AIR 1970 Allahabad 376; 1996 (27) ALR 149

## Text

3 All] Jawla Engineering Pvt. Ltd. and others V. M/S Uflex limited
1545
appellants shall stand modified as ordered
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 2746 of 2012
(Matters under Article227)

Jawla Engineering Pvt. Ltd. And Others

 ...Petitioner
Versus
M/S Uflex Limited
 ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar

Counsel for the Respondents:
Sri Samit Gopal
Sri M.K. Gupta

Constitution
of
India,
Article
227readwith Order 43 Rule 1(r)-Appeal
against
order
granting
temporary
Injunction
ex-parte-either
can
be
challenged in appeal on to get ex-parte
Decree
set-a-side-writ
against-not
maintainable-in
view
of
Full
Bench
decision.

Held: Para-6

In view of the law laid down by the Full
Bench this writ petition is not maintain
able and is accordingly dismissed.
Case Law discussed:
AIR 1970 Allahabad 376; 1996 (27) ALR 149

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This writ petition has been filed
for a direction to reject the plaint of the
original suit no.1529 of 2012 (M/s Uflex
Limited vs. Jawala Engineering Private
Limited and others) and further to set
aside the impugned ex-parte stay order
granted by the Civil Judge (Senior
Division) dated 23.11.2012 in the said
suit.

2. Sri M.K.Gupta and Sri Samit
Gopal have filed their appearance today
on behalf of the respondent and have
raised a preliminary objection that this
writ petition is not maintainable in view
of the provisions of Order 43 Rule 1(r)
C.P.C.

3. Sri Sunil Kumar, learned counsel
for the petitioner has raised a objection
that appeal under Oder 43 Rule 1(r) is not
maintainable.

4. Replying to this objection Sri
M.K.Gupta has placed a reliance on a Full
Bench decision of this Court reported in
AIR 1970 Allahabad 376 Zila Parishad
Budaun and others vs. Brhma Rishi
Sharma. The relevant portion of the Full
Bench is contained in paras 16 and 18 of
the judgement which reads as follows:-

"16. The language and the object of
Rule 1(r) of Order 43 and the scheme of
Rules 1 to 4 of Order 39 show that an
appeal also lies against the ex parte order
of injunction. As soon as an interim
injunction is issued and the party affected
thereby is apprised of it, he has two
remedies: (1) he can either get the ex
parte injunction order discharged or
varied or set aside appeal as provided for
under Order 43, Rule 1( r), or (2)
straightway file an appeal under Order
43, Rule 1 ( r) against the injunction
order passed under Rules 1 and 2 of
Order 39, C.P.C. It is not unusual to
provide for alternative remedies. For
instance, when an ex parte decree is
passed against a person, he has two
1546 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
remedies: either he may go up in appeal
against the ex parte decree or he may
seek to get the ex parte decree set aside
by the same court.

17.....................................

18. We are unable to accept this
submission of the learned counsel for the
respondents. As already discussed above,
once the Court, after perusing the
application and affidavit, comes to the
conclusion that the case is a fit one in
which temporary injunction should be
issued ex parte the Court takes a final
decision in the matter for the time being
and the expression of this decision in our
opinion is a final order for the duration it
is passed. Such an order is contemplated
by Rules 1 and 2 of Order 39, C.P.C.. We
have looked into the authorities referred
to above, but they are not applicable to
the facts of this case and they have little
bearing on the precise point raised by the
learned counsel for the respondents."

5. Subsequently the above Full
Bench decision has been followed by this
Court in the case reported in 1996 (27)
ALR 149 Mohd. Rafi Khan (Dr.) v.
District Judge, Aligarh. The relevant
paragraph is para-5 which reads as
follows:-

"5. I have considered the contention
of the learned counsel for `the petitioner
and have also carefully perused the
aforesaid decisions cited by him. In the
case of Zila Parishad (Supra) (F.B.) the
question which was referred for the
decision was to the effect whether an Exparte order issuing injunction against the
defendant was appealble in the Full
Bench was whether a miscellaneous
appeal under Order 43 Rule 1 (r ) lay
against an ex-parte ad-interim injunction
order or only against the final order
passed by the trial court after hearing the
defendants. It was held that even against
an ex-parte order issuing temporary
injunction it was open to the defendants to
file an appeal straightway under Order 43
Rule 1 ( r) C.P.C. While considering the
argument in the said case the following
observations were made in paragraph 16
of the judgement:-

"16. The language and the object of
Rule 1(r) of Order 43 and the scheme of
Rules 1 to 4 of Order 39 show that an
appeal also lies against the ex parte order
of injunction. As soon as an interim
injunction is issued and the party affected
thereby is apprised of it, he has two
remedies: (1) he can either get the ex
parte injunction order discharged or
varied or set aside under Rule 4 of O.39
and if unsuccessful avail the right of
appeal as provided for under Order 43,
Rule 1( r), or (2) straightway file an
appeal under Order 43, Rule 1 ( r)
against the injunction order passed under
Rules 1 and 2 of Order 39, C.P.C. It is not
unusual
to
provide
for
alternative
remedies. For instance, when an ex parte
decree is passed against a person, he has
two remedies: either he may go up in
appeal against the ex parte decree or he
may seek to get the ex parte decree set
aside by the same court.

6. In view of the law laid down by
the Full Bench this writ petition is not
maintain
able
and
is
accordingly
dismissed.
---------
3 All] Maya V. State of Uttar Pradesh and others
1547
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2012

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 3129 (S/S) of 2008

Maya

 ...Petitioner
Versus
State of Uttar Pradesh through its Chief
Secretary Chief Secretariat, Lucknow and
others

 ...Opposite Parties

Constitution of India, Article 14-Right to
get appointment-Petitioner applied for
selection
under
special
recruitmentderive for SC/ST under backlog quotagot selected after facing written as well
as interview-government canceled the
entire selection-again selection process
started with the under chairmanship of
another officer-petitioner also applied
but
could
not
succeeded-claim
the
appointment on the basis of earlier
selection-petition
dismissed
as
the
petitioner participated in subsequent
selection without any protest-after being
unsuccessful-held-could not question of
validity of selection process-in view of
law laid down by the Apex Court-Court
declined to interfere-petition dismissed.

Held: Para-31

In the light of the decisions discussed,
herein above, I am of the considered
opinion that even the petitioners being
empanalled in the select list have no
right to claim appointment save violation
of Article 14 of the Constitution of India.
In the instant case no element of
discrimination exists.
Case Law discussed:
(2000) 1 Supreme Court Cases 600; (2003) 7
Supreme Court Cases 285; (2008) 4 Supreme
Court Cases 171; (1998) 3 SCC 45; 1993 supp.
(2) Supreme Court Cases 600; (1995) 3
Supreme Court Cases 486; (1991) 3 Supreme
Court Cases 47

(Delivered by Hon'ble Shri Narayan
Shukla, J.)

1. Heard Sri Rakesh Srivastava,
learned counsel for the petitioner, Shri S.C.
Yadav, learned counsel for opposite parties
no. 6 to 14 and Mr. Rohit Verma, learned
Standing Counsel.

2. In substance the petitioners are
aggrieved with the constitution of the
Selection
Committee
under
the
Chairmanship of Mr Arun Kumar Khare as
well as against non implementation of the
recommendations
of
the
Selection
Committee
constituted
under
the
chairmanship of Mr S.S. Singh Yadav.

3. Briefly stated, facts of the case are
that the State Government took a decision
to fill up the vacancies of different posts of
the Scheduled Caste and Scheduled Tribes
category under the back log quota.The
advertisements
were
issued
inviting
applications. The Director, Ground Water
Department, U.P., i.e. opposite party No. 3
constituted a selection committee on 19th
September, 2007. One Sri C.S. Agarwal,
Executive Engineer was nominated as
Chairman of the said committee along with
four other persons as members of the
committee. The petitioners applied against
the different posts.

4. Since Selection Committee
constituted under the chairmanship of Mr
Agrawal was not proceeding speedily, the
O.P. 3 replaced Mr Agrawal by Sri S.S.
Singh Yadav. This Selection Committee
held written examination as well as
interview for some post advertised through
different advertisements.

5. The petitioners claim that they
appeared in the examination and interview