# Ramji Singh v. Anuj Kumar Singh

- **Citation:** (2012) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-11
- **Bench:** Rajes Kumar, Anil Kumar Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramji-singh-v-anuj-kumar-singh-42300
- **Pages:** 7

## Headnote

Sri Sankatha Rai
Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondent
........................................

C.P.C.-order XXXIII, Rule I-first appeal
from order-against order passed under
order 39 rule 3A-on ground Trail Court
failed to finally pass order within 30
days-from order sheet within 30 days
objection filed and on subsequent date
with
consent
of
both
parties
adjournment granted-as such there is no
fault on part of presiding Judge-no doubt
the provision of order 39-Rule-3-A are
mandatory-but in present case neither
any omission on part of Trail Judge
found-not appeal maintainable-Registrar
General to conscious to all Judicial Office
regarding grant of ex-parte interim order
and mandatory provisions.
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 10 and 11

The result of the foregoing discussion is
that no interference in the impugned
order is required by this Court in the
instant
appeal,
which
is
also
not
maintainable, as there was no inaction
by the Judicial Officer in expeditiously
hearing/disposing of the application for
ad interim injunction. We were informed
that the trial Court had fixed 7.5.2012
for
hearing/disposal
of
ad
interim
injunction application in the case, we
hope that by now the said application
should have been heard and decided.
However, if it has not been done, we
direct the trial Court to positively dispose
of the application within three weeks
from receipt of this order. In this event,
we direct the appellant to file the
certified copy of this order before the
trial Court within three days from today.
With the above observation, the appeal
is dismissed.

Before parting with the case, we would
like to remind the Judicial Officers of the
State
to
sensitize
themselves
in
following the mandate of provisions of
Order XXXIX Rule 3 and 3-A CPC in letter
and spirit whenever they intend to pass
exparte ad interim injunction order
without giving notice to the defendant.
Let a copy of the order be placed before
Hon'ble Chief Justice by the Registrar
General for circulating it among all the
Judicial Officers for future guidance.
Case law discussed:
(2007) 7 Supreme Court Cases 695; 2006 (3)
AWC 2573; 2003 (1) ARC 35; 1999 (36) ALR
198; AIR 1990 Allahabad 134; JT 1993 (3) SC
238; 2007 (3) AWC 3036

## Text

2 All] Ramji Singh V. Anuj Kumar Singh
547
culpability. If there was no evidence
then
there
could
not
be
any
circumstance appearing from evidence
against any of the accused and as such
there could not be any legal requirement
for any court to examine an accused
under Section 313 Cr.P.C. We are
saddened to find that the highest court
of the District was acting mechanically
to observe the formality of law as it was
never required to be observed in
absence of any evidence. The F.I.R. is
not the evidence. It might be a
document value thereof has repeatedly
been pointed out of as being a mere
statement which could be used for
corroborating or contradicting of the
maker of document. The contents of
such a document could not be utilised to
infer
the
circumstances
appearing
against the accused from evidence,
because a mere statement and evidence
are two different things as per the
simple definition of the terms. Evidence
is defined by section 3 of the Indian
Evidence Act. We, as such, find that
that particular exercise of the learned
Sessions Judge was not required to be
made by law.

5. We have already pointed out
that no witness was present. As such,
there was no evidence and there could
not have been any other result as was
recorded by the learned Trial Judge. We
do not find any merit in the application
filed under Section 5 of the Indian
Limitation Act and in the present
appeal. The two are dismissed.

6. Before we part with the
judgment, we feel that it was completely
an unnecessary exercise by the State of
U.P. to process the appeal for being
presented before this Court as it has not
only wasted public time in the law
department or other sections of the
Government, it also wasted public time
of this court also. We desire such
frivolous appeals should not be filed by
the Government and for that purpose,
we direct that a copy of the present
judgement be sent to the Principal
Secretary (Law), Government of U.P.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

First Appeal From Order Defective No. - 673
of 2012

Ramji Singh

 ...Petitioner
Versus
Anuj Kumar Singh
 ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondent
........................................

C.P.C.-order XXXIII, Rule I-first appeal
from order-against order passed under
order 39 rule 3A-on ground Trail Court
failed to finally pass order within 30
days-from order sheet within 30 days
objection filed and on subsequent date
with
consent
of
both
parties
adjournment granted-as such there is no
fault on part of presiding Judge-no doubt
the provision of order 39-Rule-3-A are
mandatory-but in present case neither
any omission on part of Trail Judge
found-not appeal maintainable-Registrar
General to conscious to all Judicial Office
regarding grant of ex-parte interim order
and mandatory provisions.
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 10 and 11

The result of the foregoing discussion is
that no interference in the impugned
order is required by this Court in the
instant
appeal,
which
is
also
not
maintainable, as there was no inaction
by the Judicial Officer in expeditiously
hearing/disposing of the application for
ad interim injunction. We were informed
that the trial Court had fixed 7.5.2012
for
hearing/disposal
of
ad
interim
injunction application in the case, we
hope that by now the said application
should have been heard and decided.
However, if it has not been done, we
direct the trial Court to positively dispose
of the application within three weeks
from receipt of this order. In this event,
we direct the appellant to file the
certified copy of this order before the
trial Court within three days from today.
With the above observation, the appeal
is dismissed.

Before parting with the case, we would
like to remind the Judicial Officers of the
State
to
sensitize
themselves
in
following the mandate of provisions of
Order XXXIX Rule 3 and 3-A CPC in letter
and spirit whenever they intend to pass
exparte ad interim injunction order
without giving notice to the defendant.
Let a copy of the order be placed before
Hon'ble Chief Justice by the Registrar
General for circulating it among all the
Judicial Officers for future guidance.
Case law discussed:
(2007) 7 Supreme Court Cases 695; 2006 (3)
AWC 2573; 2003 (1) ARC 35; 1999 (36) ALR
198; AIR 1990 Allahabad 134; JT 1993 (3) SC
238; 2007 (3) AWC 3036

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

1. The defendant of O.S. No. 170 of
2012 Anuj Kumar Singh Vs. Ram Ji Singh
pending in the Court of Civil Judge (SD),
Ballia has approached this Court by way of
instant appeal for setting aside exparte ad
interim injunction order passed by the
learned trial Court on 28.2.2012.

2. The Stamp Reporter of the Court
has noted that the instant first appeal from
order is not maintainable.

3. We have heard the learned counsel
for the appellant at length and perused the
impugned order and other papers filed along
with memo of appeal as well as the law
cited at the Bar.

4. The plaintiff-respondent has filed
suit (O. S. No. 170/12) in the Court of Civil
Judge (Sr.Div.), Ballia for permanent
injunction restraining the defendant from
carrying on business of brick-klin in the
year 2012 without paying his share in
profits amounting to Rs. 10.5 lakhs for the
year-2011, from selling 2.5 lakhs baked
bricks and 4.0 lakhs raw bricks; from using
15 tons coal lying at the brick klin and
interfering in plaintiff's egress and ingress in
the brick-klin bounded at the foot of the
plaint. The plaintiff relied upon an
unregistered
partnership-deed
dated
15.1.2011 executed between him and the
defendant for running brick-klin in the
name and style of 'M/s Yuva Shakti Eint
Bhatta', and its registration certificate with
the Commercial Tax Department. Ballia.
Along with the suit the plaintiff filed
application for ad interim injunction 6-C/2
supported with affidavit. The learned trial
Court after hearing plaintiff's counsel
through impugned order dated 28.2.2012
granted interim relief restraining the
defendant from running the brick-klin in the
year 2012 without paying Rs. 10.5 lakhs to
the plaintiff and further restrained him from
selling the baked and raw bricks, using 15
tons coal and from plaintiff's visit in the
brick-klin bounded at the foot of the plaint.
2 All] Ramji Singh V. Anuj Kumar Singh
549

5. Learned counsel for the appellant
has vehemently argued that the learned trial
Court has not followed the mandate of Rule
3 and 3-A of Order XXXIX Code of Civil
Procedure in as much as no reasons have
been recorded in the impugned order, so it
is bad in law and since the application for
ad interim injunction application has not
been disposed of within 30 days, the exparte
ad interim injunction order has become
final, so the instant appeal is maintainable.
He has placed reliance on the following
cases:

1. A. Venkatasubbiah Naidu Vs. S.
Chellappan and others (2000) 7 Supreme
Court Cases 695;

2. Ashok Prakashan (Regd.) and
another Versus Sunil Kumar and others
2006 (3) AWC 2573;

3. American Institute of English
Language Pvt. Ltd. Versus Nitin Saraswat
and another 2003 (1) ARC 35;

4. Laxmi Narain and another Versus
The District Judge, Lalitpur and another
1999 (36) ALR 198;

5. Road Flying Carrier and another
Versus The General Electric Company of
India Ltd. AIR 1990 Allaha bad 134; and

6.
Shiv
Kumar
Chadha
Versus
Municipal Corporation of Delhi and others
JT 1993 (3) SC 238.

6. In the facts of the case of A.
Venkatasubbiah Naidu (supra) the trial
Court has granted exparte ad interim
injunction straight away for two months
violating the provisions of Rule 3-A of
Order 39 of the Code, which provides that
where an injunction has been granted
without giving notice to the opposite party,
the Court shall make an endeavour to finally
dispose of the application within thirty days
from the date on which the injunction was
granted and where it is unable to do so, it
shall record its reasons for such inability.
The defendants challenged this order before
High Court by way of revision under
Article 227 of the Constitution. The learned
single Judge setting aside the order
observed that the trial Court ought not have
granted an order of injunction at the first
stage itself which could operate beyond
thirty days as the court had then no occasion
to know of what the affected party has to
say about it. Such a course is impermissible
under Order 39 Rule 3-A of the Code. On
these facts, the Apex Court in para-21 of the
report observed as under :

"21. It is the acknowledged position of
law that no party can be forced to suffer for
the inaction of the court or its omissions to
act according to the procedure established
by law. Under the normal circumstances the
aggrieved party can prefer an appeal only
against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms
of Order 43 Rule 1 of the Code. In such
circumstances the party which does not get
justice due to the inaction of the court in
following the mandate of law must have a
remedy. So we are of the view that in a case
where the mandate of Order 39 Rule 3-A of
the Code if flouted, the aggrieved party,
shall be entitled to the right of appeal
notwithstanding the pendency of the
application for grant of vacation of a
temporary injunction, against the order
remaining in force. In such appeal, if
preferred, the appellate court shall be
obliged to entertain the appeal and further
to take note of the omission of the
subordinate court in complying with the
provisions of Rule 3-A. In appropriate cases
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the appellate court, apart from granting or
vacating or modifying the order of such
injunction, may suggest suitable action
against the erring judicial officer, including
recommendation to take steps for making
adverse entry in his ACRs. Failure to decide
the application or vacate the ex parte
temporary injunction shall, for the purposes
of the appeal, be deemed to be final order
passed on the application of temporary
injunction, on the date of expiry of thirty
days mentioned in the Rule."

In para-22 of the report it was further
observed by the Apex Court -

"Now what remains is the question
whether the High Court should have
entertained the petition under Article 227 of
the Constitution when the party has two
other alternative remedies. Though no
hurdle can be put against the exercise of the
constitutional powers of the High Court it is
a well-recognized principle which gained
judicial recognition that the High Court
should direct the party to avail himself of
such remedies one or the other before he
resorts to a constitutional remedy. Learned
Single Judge need not have entertained the
revision petition at all and the party affected
by the interim exparte order should have
been directed to resort to one of the other
remedies. Be that as it may, now it is idle to
embark on that aspect as the High Court
had chosen to entertain the revision
petition."

7. In Shiv Kumar Chadha's case
(supra), the Hon'ble Supreme Court has
held as under:

"The imperative nature of the proviso
has to be judged in the context of Rule 3 of
Order 39 of the Code. Before the proviso
aforesaid was introduced, Rule 3 said 'the
Court shall in all cases, except where it
appears that the object of granting the
injunction would be defeated by the delay,
before granting an injunction, direct notice
of the application for the same to be given
to the opposite party'. The proviso was
introduced to provide a condition, where
Court proposes to grant an injunction
without giving notice of the application to
the opposite party, being of the opinion that
the object of granting injunction itself shall
be defeated by delay. The condition so
introduced is that the Court 'shall record
the reasons' why an ex parte order of
injunction was being passed in the facts and
circumstances of a particular case. In this
background, the requirement for recording
the reasons for grant of ex parte injunction,
cannot be held to be a mere formality. This
requirement is consistent with the principle,
that a party to a suit, who is being
restrained from exercising a right which
such party claims to exercise either under a
statute or under the common law, must be
informed why instead of following the
requirement of Rule 3, the procedure
prescribed under the proviso has been
followed. The party which invokes the
jurisdiction of the Court for grant of an
order of restraint against a party, without
affording an opportunity to him of being
heard, must satisfy the Court about the
gravity of the situation and Court has to
consider briefly these factors in the ex parte
order. We are quite conscious of the fact
that there are other statutes which contain
similar provisions requiring the Court or
the authority concerned to record reasons
before exercising power vested in them. In
respect of some of such provisions it has
been held that they are required to be
complied
with
but
non-compliance
therewith will not vitiate the order so
passed. But same cannot be said in respect
of the proviso to Rule 3 of Order 39. The
2 All] Ramji Singh V. Anuj Kumar Singh
551
Parliament has prescribed a particular
procedure for passing of an order of
injunction without notice to the other side,
under exceptional circumstances. Such ex
parte orders have far-reaching effect, as
such a condition has been imposed that
Court must record reasons before passing
such order. If it is held that the compliance
with the proviso aforesaid is optional and
not obligatory, then the introduction of the
proviso by the Parliament shall be a futile
exercise and that part of Rule 3 will be a
surplusage for all practical purposes.
Proviso to Rule 3 of Order 39 of the Code,
attracts the principle, that if a statute
requires a thing to be done in a particular
manner, it should be done in that manner or
not all. This principle was approved and
accepted in well known cases of Taylor Vs.
Taylor ((1875) 1 Ch D 426 : 45 LJ Ch 373)
and Nazir Ahmed Vs. Emperor (AIR 1936
PC 253 (2) : 63 IA 372 : 36 Crl.L.J. 897).
This Court has also expressed the same
view in respect of procedural requirement
of the Bombay Tenancy and Agricultural
Lands Act in the case of Ramchandra
Keshav Adke Vs. Govind Joti Chavare
((1975) 1 SCC 915 : AIR 1975 SC 915). As
such, whenever a Court considers it
necessary in the facts and circumstances of
a particular case to pass an order of
injunction without notice to other side, it
must record the reasons for doing so and
should take into consideration, while
passing an order of injunction, all relevant
factors, including as to how the object of
granting injunction itself shall be defeated if
an ex parte order is not passed. But any
such ex parte order should be in force up to
a particular date before which the plaintiff
should be required to serve the notice on the
defendant concerned. In the Supreme Court
Practice 1993, Vol.1 at page 514, reference
has been made to the views of the English
Courts saying : 'Ex parte injunctions are for
cases of real urgency where there has been
a true impossibility of giving notice of
motion....

An
ex
parte
injunction
should
generally be until a certain day, usually the
next motion day...."

8. In view of this legal preposition, it
need no emphasis that provisions of Rule 3
and 3-A of Order XXXIX of the Code of
Civil Procedure are mandatory in nature.
However, the factual position of the instant
case is some what different. Here the
learned trial Court fixing date of hearing
within thirty days in its impugned order has
discussed the facts of the case in brief and
has also noted the evidence filed by the
respondent in support of his contention and
has indicated the reasons for granting
exparte ad interim injunction order. It has
observed that as the partnership has not
been dissolved, so prima facie case in
favour of the plaintiff is found. No doubt in
so many words it has not been stated that
the object of granting the injunction would
be defeated by the delay, but in the facts and
circumstances of this case, we find that the
provisions of Rule 3 have been substantially
followed. In these circumstances, the cases
of Ashok Prakashan (Regd.), American
Institute of English Language Pvt. Ltd.,
Laxmi Narain and Road Flying Carrier
(supra) are not helpful to the appellant as in
all these cases no reasons were given by the
trial Court in the impugned orders while
granting exparte ad interim injunction
orders.

9. The interim order in the instant case
has been granted up to 25.3.2012 directing
the plaintiff to ensure compliance of Rule 3
of Order XXXIX of the Code, which was
also made. The defendant has filed
objections along with his affidavit against
552 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
plaintiff's
application
aforesaid
on
23.3.2012 i.e. before the date fixed for
hearing
the
ad
interim
injunction
application, but the trial Court has wrongly
fixed 22.4.2012 for hearing, as already
25.3.2012 was fixed for the purpose. As
25.3.2012 was Sunday, so the case was
taken up on 26.3.2012 and on that day with
the consent of the parties the hearing was
preponed for 2.4.2012. Along with the
memo of appeal the appellant has filed
certified copy of the order sheet of the case
as Annexure-11, but it does not contain
orders passed between 10.4.2012 and
18.4.2012. It was holiday on 2.4.2012, so
the case was put before the trial Court on
3.4.2012 and on that day 5.4.2012 was fixed
for hearing of the application. The ordersheet further indicates that on 5.4.2012 time
was not left with the trial court, so the
hearing was adjourned to 6.4.2012 and on
this day arguments in part were heard and
for rest arguments 9.4.2012 was fixed. The
plaintiff filed certain papers on 9.4.2012, so
10.4.2012 was fixed for plaintiff's rest
arguments.
Learned
counsel
for
the
appellant has supplied the uncertified copy
of the order sheet of the case, which also
contains orders passed by the learned trial
Court between 10.4.2012 and 18.4.2012.
The order sheet of 10.4.2012 shows that
arguments
of defendant were
heard,
however, plaintiff moved application for
adjournment. The learned trial Court fixed
13.4.2012 for orders directing the plaintiff
to address the Court positively on 11.4.2012
and on this day arguments were concluded.
On
13.4.2012,
the
plaintiff
sought
adjournment for a week seeking time to file
case-laws and the trial Court adjourned the
case to 18.4.2012 observing that if the caselaw is not filed, then vacation of exparte
order would be considered. In this context it
is noteworthy that this year the annual
transfers in the subordinate judiciary were
effective on 16.4.2012 and all the Judicial
Officers in the State who were under
transfer were directed to hand over charge
on 16.4.2012 (after-noon). On our query,
the Registry has informed that till 16.4.2012
Sri N. K. Singh was presiding the Court of
Civil Judge (SD), Ballia and thereafter his
jurisdiction was changed and Smt. Sarla
Dutta took over the charge of that Court,
although this change was within the district.
Experience shows that whenever an officer
is under transfer out of station or his
jurisdiction is changed within the district,
his mind is diverted to the future change and
the Bar also (particularly one of the party) is
not interested in having verdict from the
officer whose is being shifted. The history
of this case supports our view. As noted
above, this year in annual transfers of
Judicial Officers in the State, all the officers
under transfer were directed to be ready for
handing over charge in the after-noon of
16.4.2012 vide Officer Memorandum of
this Court dated 30.3.2012. The Presiding
Officer of the trial Court hearing the case
was likely to be shifted locally to another
Court and actually his jurisdiction was
changed in the after-noon of 16.4.2012 as
he became Chief Judicial Magistrate, Ballia.
In this back ground it cannot be held that
there was any inaction on the part of the
concerned Judicial Officer to expeditiously
decide the ad interim injunction application
filed in the case. The reasons for delay
could not be mentioned in the order-sheet of
the case due to change of Presiding Officer
of the Court as was required per Rule 3-A
of Order XXXIX CPC. Thus when the
appellant has already filed objections as are
required under Rule 4 of the above Order of
the Code, and the learned trial Court had
concluded hearing, the instant appeal filed
on 30.4.2012 should not be entertained by
this Court. In the case of GAIL (India) Ltd.
Vs.
Advance
Lamps
Component
&
2 All] Hari Lal Chaurasia (Dead) and others V. Smt. Krishna Devi and others
553
Tablewares (P) Ltd., Firozabad 2007 (3)
AWC 3036 a division bench of this Court in
similar fact situation has observed that when
application under Rule 4 Order XXXIX
CPC has already been moved by the
defendant-appellant in the Court below, two
simultaneous
proceedings,
i.e.
(i)
application and (ii) appeal cannot be
allowed
to
go
on.
Application
for
discharge/set aside/variation will be heard
first. The Apex Court has also highlighted
this legal position in para-22 of the report of
A. Venkatasubbiah Naidu's case (supra).

10. The result of the foregoing
discussion is that no interference in the
impugned order is required by this Court in
the instant appeal, which is also not
maintainable, as there was no inaction by
the
Judicial
Officer
in
expeditiously
hearing/disposing of the application for ad
interim injunction. We were informed that
the trial Court had fixed 7.5.2012 for
hearing/disposal of ad interim injunction
application in the case, we hope that by now
the said application should have been heard
and decided. However, if it has not been
done, we direct the trial Court to positively
dispose of the application within three
weeks from receipt of this order. In this
event, we direct the appellant to file the
certified copy of this order before the trial
Court within three days from today. With
the above observation, the appeal is
dismissed.

11. Before parting with the case, we
would like to remind the Judicial Officers of
the State to sensitize themselves in
following the mandate of provisions of
Order XXXIX Rule 3 and 3-A CPC in letter
and spirit whenever they intend to pass
exparte ad interim injunction order without
giving notice to the defendant. Let a copy of
the order be placed before Hon'ble Chief
Justice by the Registrar General for
circulating it among all the Judicial Officers
for future guidance.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Substitution Application N0.
262104 of 2010
IN
Second Appeal N0. 1162 of 2006

Hari Lal Chaurasia (Dead) and others

 ...Plaintiff/Appellants
Versus
Smt. Krishna Devi and others

 ...Defendants/Respondents.

Counsel for the Appellants:
Sri A.K. Srivastava
Sri Sumit Srivastava

Counsel for the Respondents:
Smt. Kamla Mishra

Code of Civil Procedure-Order XXII, Rule
10 A-Abatement-Respondents No. 1 died
during
pendency
of
1st
AppealDefendant by no point of time either
before court below or before this Hon'ble
Court
given
information-legal
hair
already on record-liberal view should be
taken-substitution allowed.

Held: Para 9

It appears that during the pendency of
1st suit, Munni Lal died and his daughter
Smt. Krishna Devi and son Sri Bhagwati
Prasad were substituted. In the appeal
also, they were made party. On the facts
and circumstances, the Court is of the
view that if respondent no. 1 died in the
year 2004, the pleader of respondent no.
1 should have informed the Court about
her death but it is not the case of any