# Nizamuddin Khan @ Shabbu and another [U/A 227 ] v. A.D.J. Lucknow and others

- **Citation:** (2011) 3 ILRA 1339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-01
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nizamuddin-khan-shabbu-and-another-u-a-227-v-a-d-j-lucknow-and-others-42002
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order XXXIX
Rule 4-vacation of ex parte injunction
order-inspite
of
service
of
noticepetitioner failed to appear on date fixedTrail Court granted ex-parte injunction
order-application to vacate such ex-pate
interim
order-held-maintainable-Trail
Court directed to decide said application
within 6 month.

Held: Para 14

In view of the said facts, although the
notices were issued by the trial court on
an application for grant of injunction but
thereafter neither petitioners/defendants
had put their appearance in the matter in
question before the trial court nor they
filed objection to the application for grant
of injunction order, the same has been
granted ex-parte. Hence, I am of the
considered opinion that there is no legal
impediment or embargo on the part of
petitioners/defendants
to
move
an
application under Order 39 Rule 4 CPC for
vacation of the ex-parte injunction order,
as the said provision clearly lays down
that if an injunction order is passed, after
hearing counsel for the parties, the same
cannot be discharged, varied, modified or
set aside.
Case law discussed:
AIR 1985 NOC 59 (Orissa); AIR 1976 Mad 350

## Text

3 All] Nizamuddin Khan @ Shabbu and another [U/A 227 ] V. A.D.J. Lucknow and others 1339
provisions
may
be
considered
sympathetically.

28. With the aforesaid observations,
this jail appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2011

BEFORE
THE HON'BLE ANIL KUMAR,J.

Misc. Single No. - 7585 of 2010

Nizamuddin Khan @ Shabbu and another
[U/A 227 ]

 ...Petitioner
Versus
Additional District Judge Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri M.A.Khan

Counsel for the Respondents:
Sri Manish Kumar

Code of Civil Procedure-Order XXXIX
Rule 4-vacation of ex parte injunction
order-inspite
of
service
of
noticepetitioner failed to appear on date fixedTrail Court granted ex-parte injunction
order-application to vacate such ex-pate
interim
order-held-maintainable-Trail
Court directed to decide said application
within 6 month.

Held: Para 14

In view of the said facts, although the
notices were issued by the trial court on
an application for grant of injunction but
thereafter neither petitioners/defendants
had put their appearance in the matter in
question before the trial court nor they
filed objection to the application for grant
of injunction order, the same has been
granted ex-parte. Hence, I am of the
considered opinion that there is no legal
impediment or embargo on the part of
petitioners/defendants
to
move
an
application under Order 39 Rule 4 CPC for
vacation of the ex-parte injunction order,
as the said provision clearly lays down
that if an injunction order is passed, after
hearing counsel for the parties, the same
cannot be discharged, varied, modified or
set aside.
Case law discussed:
AIR 1985 NOC 59 (Orissa); AIR 1976 Mad 350

(Delivered by Hon'ble Anil Kumar,J. )

1. Heard Sri Mohd. Arif Khan,
learned Senior Counsel assisted by Sri
Mohd. Aslam Khan, learned counsel for
petitioner, Sri Nripendra Misrha, Advocate
holding brief of Sri Manish Kumar, learned
counsel for respondent Nos. 1 and 2 and Sri
Surendra Pratap Singh, learned counsel
appearing on behalf of respondent Nos. 3
and 4.

2. Facts in brief as submitted by Sri
Mohd. Arif Khan, Senior Advocate are that
respondent Nos. 3 and 4/plaintiffs filed a
suit for permanent injunction registered as
Regular Suit No. 50 of 2010,(Sri Shashi
Kant Bajpayee and another Vs. Sri
Nizamuddin and another) in the Court of
Civil Judge North (J.D.), Lucknow. In the
said suit, an application for grant of
temporary injunction has been moved on
behalf of plaintiffs/respondents and on
23.04.2010, a temporary injunction was
granted in favour of plaintiffs/respondents.
Subsequently, modified vide order dated
26.04.2010 (Annexure No. 4) by the trial
court.

3. On 02.05.2010, petitioners/defendants
moved an application under Order 39 rule 4 read
with Section 151 CPC for vacation of the exparte injunction order granted in favour of
plaintiffs/respondents(Annexure No. 5).
1340 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

4. Thereafter, an application for
amendment of the plaint was moved by the
plaintiff under Order VI Rule 17 CPC,
rejected
by
order
dated
18.05.2010
(Annexure No. 6). Aggrieved by the same,
plaintiffs/respondents filed Civil Revision
No. 73 of 2010, (Shashi Kant Bajpai and
another Vs. Nizamuuddin and another), in
whivh District Judge, Lucknow passed an
order dated 26.05.2010 (Annexure No. 12),
however, the same was dismissed by order
dated 29.01.2011.

5.

In
the
intervening
period
plaintiffs/respondents approached this Court
by filing writ petition No. 3533 of 2010,
Shashi Kant Bajpai and another Vs. District
Judge, Lucknow and others, allowed partly
by order dated 08.06.2010, the operative
portion of the same reads as under:-

"It is also clarified that apart from the
disputed land with regard to which the
injunction order of status quo was granted
the opposite parties no.5 and 6 will be at
liberty to carry on their finishing work, if at
all is needed and the authorities will not
create any hindrance in the aforesaid action
of the opposite parties no.5 and 6.

Writ petition is party allowed to that
extent. "

6. As per the submission made by the
learned counsel for petitioner in the said
matter this Court has given a finding, the
same is as under:-

"The submission is that either the
injunction vacation application of the
opposite parties no.5 and 6 should be
disposed of first and thereafter the
amendment application was ordered on
17.5.2010. Against this order an application
for recalling the said order was preferred
but the said application was rejected by
means of order dated 18.5.2010. The order
dated 18.5.2010 has been subjected to
challenge in revision before the revisional
court. During the pendency of the revision,
an application was given by the opposite
parties no.5 and 6 for remitting the record
to the trial court and in the meantime the
case was transferred to the court of
Additional District Judge-II, Lucknow and
it is stated that no notice was given to the
petitioners either prior to the transfer or
after the transfer and the revisional court
proceeded to pass the order on application
of the opposite parties no.5 and 6 remitting
the record back to the trial court with a
view to get the injunction vacation
application decided."

7. In addition to the abovesaid facts,
plaintiffs/respondents also approached this
Court by filling writ petition No. 5821
(MB) of 2010 (Sri Shashi Kant Bajpayee
and another Vs. State of U.P. and others),
disposed of by order dated 17.06.2010,
operative portion of the same is as under:-

"Accordingly, there is no ground to
interfere in writ jurisdiction under Article
226. However, it is provided that in case
any application is moved under Section 151
C.P.C. within one week from today, that
shall be adjudicated by the trial court. In
the absence of trial court, concerned
Magistrate shall look into the matter as
urgent during the course of vacation,
nominated by the District Judge. "

8. In view of the abovesaid facts, Sri
Mohd. Arif Khan, Senior Advocate in brief
has made a submission on behalf of
petitioners/defendants that the application
dated 02.05.2010 for vacation of the exparte interim order, initially granted on
23.04.2010
subsequently
modified
on
3 All] Nizamuddin Khan @ Shabbu and another [U/A 227 ] V. A.D.J. Lucknow and others 1341
26.04.2010, by the trial court is still
pending, not adjudicated on merit, till date
without any reasonable justification or
reason, rather the same is lingering on one
or other pretext with dilatory tactic adopted
by the plaintiffs/respondent Nos. 3 and 4
with
oblique
motive
and
purpose.
Accordingly, he submits that a direction
may be issued to the trial court to decide the
said application expeditiously.

9. Sri S.P. Singh, learned counsel
appearing on behalf of respondents submits
that initially when a suit for permanent
injunction
has
been
filed
by
the
plaintiffs/respondents, on 01.04.2010 the
trial
court/Civil
Judge
North
(J.D.),
Lucknow has issued a notice to the
defendants. Aggrieved by the said facts,
plaintiffs approached this Court by filling
Writ Petition No. 1938 (MS) of 2010, on
07.04.2010 a direction was issued by this
Court, thereby directing the trial court to
pass an appropriate order on the application
for temporary injunction either on the next
date fixed or on another date which shall be
fixed within next one month. In view of the
abvoesaid facts, the trial court after hearing
the plaintiffs/respondents granted temporary
injunction on 23.04.2010 subsequently
modified on 26.04.2010.

10. Accordingly it is submitted by Sri
S.P. Singh, learned counsel for respondents
that once a notice has been issued by the
trial court to the petitioners/defendants,
thereafter in view of the order passed by this
Court, temporary injunction granted in
favour of the plaintiffs/respondents on
23.04.2010 modified on 26.04.2010, the
same is not an ex-parte order, thus the
application
filed
by
the
petitioners/defendants under Order 39 Rule
4 read with Section 151 CPC is not
maintainable, hence present writ petition,
liable to be rejected.

11. After hearing learned counsel for
the parties and going through the material
on record, the core question which is to be
considered and decided in the present case
is whether any opportunity of hearing is
given to the petitioners/defendants to put
forward their defence for vacation of the
injunction order granted in favour of the
plaintiffs/respondents
on
23.04.2011/26.04.2011 or not and by
merely issuing notice to the defendant prior
to the granting temporary injunction by the
trial court and thereafter granting the same
to the plaintiffs when defendants have not
put appearance and filed their objection in
that circumstances the application moved by
the petitioners for vacation of injunction
order is maintainable under the provisions
of order 39 Rule 4 CPC or not.

12. In order to decide the controversy
which is involved in the present case, it is
necessary to have a glance to the provisions
as provided under Order 39 Rule 4, from
the perusal of the same, it is crystal clear
that if a temporary injuction is granted
under Order 39 Rule 1 and 2 CPC. After
hearing counsel for parties concerned, the
same cannot said to be an ex-parte and
cannot be discharged, varied or set aside.

13. In the instant case, on an
application moved by plaintiffs/respondents
for grant of temporary injunction, initially
the trial court has issued notice. Aggrieved
by the said fact they approached this Court
by filing Writ Petition No. 5821 (MB) of
2010 ( Sri Shashi Kant Bajpayee and
another Vs. State of U.P. and others)
disposed of vide order dated 17.06.2010 and
in terms of the same, the trial court has
considered the application for grant for
1342 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
temporary
injunction
granted
on
23.04.2011,
thereafter
modified
on
26.04.2010.

14. In view of the said facts, although
the notices were issued by the trial court on
an application for grant of injunction but
thereafter neither petitioners/defendants had
put their appearance in the matter in
question before the trial court nor they filed
objection to the application for grant of
injunction order, the same has been granted
ex-parte. Hence, I am of the considered
opinion that there is no legal impediment or
embargo
on
the
part
of
petitioners/defendants
to
move
an
application under Order 39 Rule 4 CPC for
vacation of the ex-parte injunction order, as
the said provision clearly lays down that if
an injunction order is passed, after hearing
counsel for the parties, the same cannot be
discharged, varied, modified or set aside.

15. In the case of Purna Chandra
Das v. Smt. Bishnu Priya Mahapatra,
AIR 1985 NOC 59(Orissa) ad interim
order of injunction was made absolute on
the failure of the defendant to appear on
date fixed for showing cause, application
for recalling was filed. It has been held that
application was maintainable.

16. In the case of Abdul Shakoor
Sahib v. Umachander, AIR 1976 Mad
350 the question was where an ex parte
interim injunction is granted by court, then
appeal is the only remedy or an application
under Order 39, Rule 4 will lie. It was held
that "no appeal will lie against an ex parte
ad interim injunction, but the specific
remedy available in Order 39, Rule 4, CPC
has to be availed of by the party who is
affected by the injunction, so that a final
reasoned order could be obtained in the trial
Court itself against which the Code has
provided an obvious appeal under Order 43,
Rule 1(r), C.P.C.

17. For the foregoing reasons, the
application moved by petitoiners/defendants
dated 02.05.2010 under Order 39 Rule 4 rad
with Section 151 C.P.C. for vacation of
temporary injunction granted in favour of
plaintiffs/respondents is maintainable.

18. Further, Sri Mohd. Arif Khan,
learned Senior Advocate, at this stage,
submits that as the revisions No. 73 of 2010
filed by plaintiffs/respondents has already
been decided, so he does not press the relief
for early disposal of the same, as prayed in
the instant writ petition.

19. Accordingly, the writ petition is
allowed, a direction is issued to Civil Judge
North (J.D.), Lucknow to decide the
petitioner's application dated 02.05.2010
moved under Order 39 Rule 4 read with
Section 151 CPC for vacation of the
temporary injunction granted in favour of
the plaintiffs/respondent No. 3 and 4
expeditiously preferably within a period of
six weeks form the date of receiving a
certified copy of this order after hearing
counsel for parties in question in accordance
with law
--------
3 All] Deo Nath Yadav V. Registrar General, High Court of Judicature at Allahabad & others
1343
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2011

BEFORE
THE HON'BLE ANIL KUMAR,J.

SERVICE SINGLE No. - 8239 of 2011

Deo Nath Yadav S/O Bajrangi Yadav

 ...Petitioner
Versus
Registrar General, High Court of Judicature
at Allahabad & others
 ...Respondents

Counsel for the Petitioner:
Sri Qamrul Hasan

Counsel for the Respondents:
Sri Manish Kumar

Constitution
of
India-Article
226Transfer-petitioner
working
as
Chowkidaar
in
Judgeship
Lakhimpur
Khiri-Transferred to judgeship Mahoba
mala fide allegation against District Judge
who
being
annoyed
with
personal
allegations-dealing
with
promotionpassed impugned order of transfer heldtransfer being exigency of service-can not
be
interfered
unless
mala-fide
or
contravention
of
rules-found-no
interference called for.

Held: Para 8

The law is well settled that transfer being
exigency of service can be effected by the
employer concerned in accordance with
administrative exigency, in the interest of
administration and public interest at any
point
of
time
and
that
cannot
be
monitored and guided by this Court
unless it may be shown that transfer
order is vitiated on account of the
contravention of the statute , or lacks
jurisdiction or mala fide.
Case law discussed:
1991 Supp (2) SCC 659; 1993 Supp (1) SCC
04; (1994) 6 SCC 98; (1995) 2 SCC 532; AIR
1993 SC 2444; (1993) 1 SCC 148; 1992 (1)
SCC 306; AIR 2001 SC 3309; 2005 (2) ESC
1224; 1996 (1) UPLBEC 347; 2006 (5) AWC
4755; (2009) 3 UPLBEC 2338

(Delivered by Hon'ble Anil Kumar,J. )

1. Heard Sri Qamrul Hasan,learned
counsel
for
petitioner
and
Sri
S.P.
Srivastava, learned Standing Counsel.

2. By means of the present writ
petition, the petitioner has challenged the
impugned
order
of
transfer
dated
05.11.2011 (Annexure No. 1) passed by
O.P. No. 1/Registrar General, High Court of
Judicature at Allahabad, Allahabad.

3. Facts of the present case as
submitted by learned counsel for petitioner
are that the petitioner appoint on the post of
Chowkidar/Faras by order dated 01.1.1998
under Judgeship of Lakhimpur Kheri, a
Class-IV post, still working and discharging
in the said capacity.

4. Learned counsel for petitioner
further submits that for redressal of his
grievances in respect to the promotion to
next higher post, he had filed a Writ Petition
No. 7114 of 2010 before this Court
impleaded the then District Judge, Kheri/Sri
Amar Singh Chauhan (now presently
posted as District Judge, Bulandshahar)
O.P. No. 2 and also alleged certain
allegations against him. When the said fact
come to knowledge of the O.P. No. 2, he
hurriedly on 27.09.2010 made a complaint
against the petitioner to Hon'ble the Chief
Justice, Allahabad High Court.

5. Sri Qamrul Hasan,learned counsel
for petitioner submits that in view of the
said compliant, the order dated 05.11.2011
has been passed by which the petitioner