# Upendra Nath Srivastava v. Addl. District & Sessions Judge/Special Judge, Pocso Act, Court No. 1, Lko & Ors

- **Citation:** (2023) 2 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-13
- **Case number:** Matters Under Article 227 No. 4239 of 2023
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-nath-srivastava-v-addl-district-sessions-judge-special-judge-pocso-act-51097
- **Pages:** 10

## Headnote

Civil Law - Code of Civil Procedure,1908Order 39 Rule 3-Private respondent no.3 had
instituted the suit for permanent injunction- also
moved an application under Order 39 Rule 1
and Sectiontion2 C.P.C.- sham compliance of
Order 39 Rule 3 C.P.C. was made by the private
respondent no.3-private respondent has not
given specific reply to indicate that compliance
has been made-the impugned orders set asidePetition allowed. (E-9)

Cases cited:

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES
section of the law against an Inspector or
sub Inspector, the concurrence of the
Deputy
Inspector
General
must
be
obtained. Prosecution under Section 29
should rarely be instituted and only when
the offence cannot be adequately dealt
with under Section 7."

18. The aforesaid provision also
indicates that the matter shall be taken up
by
the
Superintendent
of
Police
departmentally or by the District Magistrate
in manner indicated above. In the event the
Magistrate himself takes notice of it then in
view of the provisions of Section 190
Criminal procedure Code as referred to
therein, the matter will have to be sent to
another Magistrate for conducting the
enquiry after putting the Officer to notice.

19. The procedure therefore makes it
amply clear that the same Magistrate
cannot be the witness and the judge
himself. The procedure adopted by the
learned Magistrate to proceed against the
petitioner was therefore not in conformity
with the provisions of Section 29 of the
Police Act 1861 read with the Regulations
referred to hereinabove.

20. The learned A.G.A.-I has not been
able to point out any contrary provision or
conferment of power on the Magistrate so
as to allow him to proceed to convict the
petitioner in the circumstances indicated
above.

21. Accordingly, the order dated
19.01.2024
passed
in
Misc.
Case
No.554/2023 (State Vs. S.H.O. Mankapur,
Gonda) by the Court of learned Additional
District and Sessions Judge, Court No.3,
Gonda is hereby set aside leaving it open
to the competent authority to proceed in
accordance with the provisions as indicated
above in the event such powers can be
invoked on the facts of the present case.

22. The writ petition is accordingly
allowed.

23. No order as to the costs.
----------
(2023) 2 ILRA 202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2024
BEFORE

THE HON'BLE JASPREET SINGH, J.

Matters Under Article 227 No. 4239 of 2023

Upendra Nath Srivastava ...Petitioner
Versus
Addl. District & Sessions Judge/Special
Judge, Pocso Act, Court No. 1, Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
Ravi Shanker Tewari, Anant Tewari

Counsel for the Respondents:
Lalit Kishore Pandey, Pankaj Shukla

Civil Law - Code of Civil Procedure,1908Order 39 Rule 3-Private respondent no.3 had
instituted the suit for permanent injunction- also
moved an application under Order 39 Rule 1
and Sectiontion2 C.P.C.- sham compliance of
Order 39 Rule 3 C.P.C. was made by the private
respondent no.3-private respondent has not
given specific reply to indicate that compliance
has been made-the impugned orders set asidePetition allowed. (E-9)

Cases cited:

1. U.P. Pasi Jagriti Mandal, Lucknow & ors. Vs
Devi Dayal Chauhan & ors. 1997 (1) ARC 518

2. Shiv Kumar Chadha Vs Municipal Corporation
of Delhi & ors.; (1993) 3 SCC 161

(Delivered by Hon'ble Jaspreet Singh, J.)
2 All. Upendra Nath Srivastava Vs. Addl. District & Sessions Judge/Special Judge,
 Pocso Act, Court No. 1, Lko & Ors.
203

1. Heard Shri Ravi Shanker Tewari,
learned counsel for the petitioner and Shri
Lalit Kishore Pandey, learned counsel for
private respondent no.3.

2. Under challenge is the order dated
26.05.2023 passed by the Additional
District Judge / Special Judge, POCSO Act,
Court
No.1,
Lucknow,
whereby
it
dismissed the appeal of the petitioner and
affirmed the grant of ex parte interim
injunction order dated 06.09.2022 passed
by
Civil
Judge
(Senior
Divsion),
Malihabad, Lucknow in Regular Suit
No.1732 of 2022.

3. The controversy before this Court
is limited to an extent inasmuch as it is the
case of the petitioner that the private
respondent no.3 had instituted the suit for
permanent injunction before the Civil
Judge
(Senior
Division)
Malihabad,
Lucknow bearing Regular Suit No.1732 of
2022. Along with the plaint in suit, the
private respondent no.3/ plaintiff also
moved an application under Order 39 Rule
1 and 2 C.P.C. duly supported by an
affidavit.

4. It is the case of the petitioner that
on 06.09.2022 the trial court while
admitting the suit had also heard ex parte
on the application under Order 39 Rule 1
and 2 C.P.C. and the trial court passed an
ex parte interim order dated 06.09.2022
directing the parties to maintain status quo.
By the said order itself the plaintiff was
required to comply with the provision of
Order 39 Rule 3 C.P.C. within 24 hours.

5. It is the case of the petitioner that a
sham compliance of Order 39 Rule 3 C.P.C.
was made by the private respondent no.3 as
a result the said injunction order could not
have subsisted nor could have been
extended, as any person who approaches
the Court must approach the Court with
clean hand. In this regard, the counsel for
the petitioner had drawn the attention of the
Court to paragraph 12 of the petition
wherein specific averments have been
made to indicate that the compliance as
alleged to have been done by the private
respondent no.3 could not be treated as a
valid compliance in terms of Order 39 Rule
3 CPC. Thus, for the aforesaid reason, the
injunction order was liable to be recalled.

6. It is further submitted that even
otherwise, if a court passes an ex parte
interim order, then as per the legislative
mandate, it is required to assign reasons,
even though briefly to indicate that in case,
if the said ex parte injunction order is not
granted, it may entail frustration of the suit
itself and on this count as well the order
falls foul.

7. It is further submitted that the
petitioner had filed an appeal and the lower
appellate court also did not find favour with
the reason that since the petitioner has
adequate remedy of filing objections
against the application under Order 39 Rule
1 and 2 C.P.C. which partakes the nature of
an objection in terms of Order 39 Rule 4
C.P.C., hence, it would be appropriate for
the petitioner to get the matter decided on
merits as he had already put an appearance.
Thus, it is submitted that the basic
ingredients of Order 39 Rule 3 C.P.C.,
having been blatantly violated, yet this
aspect has not been noticed either by the
trial court or the lower appellate court,
hence the both the orders are bad and
interim order cannot subsist perpetuateory
wrong.

8. Shri Lalit Kishore Pandey, learned
counsel
appearing
for
the
private
204 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.3 has filed his counter
affidavit, which is taken on record after
serving a copy on the counsel for the
petitioner, who submits that he does not
wish to file any rejoinder affidavit as the
facts in the instant case are not in dispute
and only a short but a legal question is
involved.

9. Shri Lalit Kishore Pandey, learned
counsel
appearing
for
the
private
respondent
no.3
submits
that
the
compliance of Order 39 Rule 3 C.P.C., was
duly made. It is further urged that once the
compliance is made, whether it is adequate
or inadequate would be an issue which can
be considered by the trial court while
considering the application Order 39 Rule 1
and 2 C.P.C. on its own merits and
specially once the order of status quo has
been passed which does not in any manner
create any prejudice for either parties as the
same is only for the protection of the
property in question. In the aforesaid
circumstances, it would appropriate for the
court to pass an order even though directing
the trial court to consider and decide the
application Order 39 Rule 1 and 2 C.P.C.
on its own merits finally rather than to
procrastinate the proceedings before this
Court. Shri Pandy has also relied upon a
decision of this Court in the case of U.P.
Pasi Jagriti Mandal, Lucknow and others
Vs. Devi Dayal Chauhan and others 1997
(1) ARC 518 and specific attention has
been drawn to Paragraph 12 of the said
report, which reads as under:-

"12. I have considered the above
submissions of the learned Counsel of the
parties and gone through the decisions that
have been relied upon by the learned
Counsel for the parties. The submissions of
the learned Counsel of the petitioner in
respect of non-compliance of the Rule 3 of
Order XXXIX, has lost its significance in
view of that fact that the petitioner had put
in appearance before the trial Court and
had been heard. In such a case the
provisions of Rule 4 of Order XXXIX,
comes in to play. After the petitioners were
heard by the trial Court and even after
hearing, the ad-interim injunction has been
allowed to continue then, the ground of
non-compliance of Rule 3 relevance loses, I
am, therefore, unable to agree with the
learned Counsel of the petitioners on this
part of the submissions.

10. The Court has heard the learned
counsel for the parties and also perused the
material on record.

11. In order to appreciate the
respective contentions, it will be worth
while to take a glance at the provisions of
Order 39 Rule 1,2 and 3 C.P.C. which read
as under:

1. Cases in which temporary
injunction may be granted.-[* * *] Where
in any suit it is proved by affidavit or
otherwise?

(a) that any property in dispute in
a suit is in danger of being wasted,
damaged or alienated by any party to the
suit, or wrongfully sold in execution of a
decree, or

(b) that the defendant threatens,
or intends, to remove or dispose of his
property with a view to [defrauding] his
creditors,

(c) that the defendant threatens to
dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any
property in dispute in the suit,]

the Court may by order grant a
temporary injunction to restrain such act,
or make such other order for the purpose of
staying
and
preventing
the
wasting,
2 All. Upendra Nath Srivastava Vs. Addl. District & Sessions Judge/Special Judge,
 Pocso Act, Court No. 1, Lko & Ors.
205
damaging, alienation, sale, removal or
disposition
of
the
property
[or
dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to
any property in dispute in the suit] as the
Court thinks fit, until the disposal of the
suit or until further orders.

2.
Injunction
to
restrain
repetition or continuance of breach.?(1)
In any suit for restraining the defendant
from committing a breach of contract or
other injury of any kind, whether
compensation is claimed in the suit or not,
the plaintiff may, at any time after the
commencement of the suit, and either
before or after judgment, apply to the
Court for a temporary injunction to
restrain the defendant from committing
the
breach
of
contract
or
injury
complained of, or any breach of contract
or injury of a like kind arising out of the
same contract or relating to the same
property or right.

(2) The Court may by order grant
such injunction, on such terms as to the
duration of the injunction, keeping an
account, giving security, or otherwise, as
the Court thinks fit.

(3) [* * *]

(4) [* * *]

3. Before granting injunction,
Court to direct notice to opposite party.-

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:

[Provided that,
where
it
is
proposed to grant an injunction without
giving notice of the application to the
opposite party, the Court shall record the
reasons for its opinion that the object of
granting the injunction would be defeated
by delay, and require the applicant?

(a) to deliver to the opposite
party, or to send to him by registered post,
immediately after the order granting the
injunction has been made, a copy of the
application for injunction together with?

(i) a copy of the affidavit filed in
support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on
which the applicant relies, and

(b) to file, on the day on which
such injunction is granted or on the day
immediately following that day, an affidavit
stating that the copies aforesaid have been
so delivered or sent.

12. It is no doubt true that a Court is
vested with the power to grant an ex parte
injunction order in a befitting case. The
scheme of Order 39 is such that primarily
as far as possible the application must be
heard bi parte and for which notices to the
defendants have to be issued in terms of
Rule 3. However, in cases, where the Court
is of the opinion that unless an ex parte
interim order is granted the basic purpose
of filing the suit would be frustrated hence,
as exception, the trial court can grant an ex
parte injunction and in such circumstances,
the provisions of Order 39 Rule 3 C.P.C.
assumes significance.

13. From the perusal of the provisions
which have been reproduced hereinabove,
it would indicate that a party in whose
favour an ex parte injunction is granted
must comply with the provisions that is to
say that by the next day, the compliance
affidavit has to be filed before the Court
indicating that the copy of the plaint, the
application under Order 39 Rule 1 and 2
CPC and affidavit in its support and the
documents upon which the plaintiff has
relied have been sent to the defendants. The
consequence of non-compliance would be
206 INDIAN LAW REPORTS ALLAHABAD SERIES
that as the injunction granted ex parte being
subject to the aforesaid condition, hence
unless and until the compliance is made,
the ex parte injunction order cannot subsist
or be extended.

14. At this stage, it will also be
relevant to notice the specific pleading
made by the petitioner in Paragraph 12 of
the petition which reads as under:

12. that upon grant of the exparte interim injunction order dated
06.09.2022,
the
opposite
party
no.3/plaintiff made a sham compliance of
the provisions of Order 39 Rule 3 Code of
Civil Procedure.

12.1 On 07.09.2022 an affidavit
was filed before the trial court by one
Triloki Nath Srivastava claiming to be clerk
of Shri Pankaj Shukla, Advocate stating
that a copy of the plaint, application along
with affidavit and documents have been
sent to the defendants. The rigors of the
proviso to Order 39, Rule 3 specifically.
require the "applicant" to file an affidavit
of compliance of the provisions of Order
39, Rule 3 and 3(a) and (3b). The opposite
party No.3 never filed the affidavit of
compliance. A true copy of the affidavit
sworn by the clerk of Shri Pankaj Shukla,
Advocate in alleged compliance of the
provisions of Order 39, Rule 3 of Code of
Civil Procedure is annexed as Annexure
No.8 to this petition.

12.2. Pursuant to this sham
compliance the petitioner received a small
envelope containing only the bare tanki
summon. The plaint, application, affidavit
and documents were not there in the small
envelope. As per the postal departments
endorsement the weight of the envelope (84
inches) was a mere 20 grams as evidenced
in the postal receipt affixed thereto. The
petitioner thereafter obtained copies of the
plaint, application, affidavit and documents
and got them weighed from the postal
department and found that the entire packet
could fit only in a large envelope and
weighed approximately 390 grams. A true
copy of the envelope received by the
petitioner in sham compliance of the
provisions of Order 39, Rule 3 of Code of
Civil Procedure is annexed as Annexure
No.9 to this petition.

15. The respondent has disputed the
aforesaid contents by filing the counter
affidavit but has not specifically
replied
as
shall
be
seen
from
Paragraph 8 of the counter affidavit,
which reads as under:-

8. That the contents of para 12
and 13 of the petition under reply are
emphatically denied and it is further stated
that the deponent through the clerk of
counsel for deponent got complied the
provisions of Oder 39-Rule 3. C.P.C. apart
from that on the mere perusal of averments
made by the petitioner in para 12.2 of this
petition that he has received an envelope
containing bare tanki summon on other
hand in the petitioner himself stated in his
counter affidavit dated 07.10.2022 that he
has
received
a
Blank
Sheet
this
contradictory averments by the same
person on oath constitute the fact that he
wants to deprive the deponent to enjoy her
property by all means and wants to get
delay the final disposal of the application
under order-39 Rule 1 & 2 read with
section 151 C.P.C. by this way or that.
Moreover it is also stated that if the copies
of the preferred suit will not be supplied to
the petitioner then without demanding the
copies of the preferred petition by the
deponent the petitioner by how filed his
reply on very first day of hearing, this also
seems that the entire copy of the preferred
2 All. Upendra Nath Srivastava Vs. Addl. District & Sessions Judge/Special Judge,
 Pocso Act, Court No. 1, Lko & Ors.
207
petition will be supplied to the petitioner of
this petition.

16. Noticing the aforesaid, it would
indicate that the private respondent has not
given specific reply rather an evasive reply
has been given to indicate that compliance
has been made. There is nothing on record
in shape of the counter affidavit whereby
the private respondent no.3 has stated that
the compliance which has been made and
the registered cover sent to the defendants
of the suit also accompanied the pleadings
as well as the documents.

17. Certain discrepancies have been
pointed out in Paragraph 8 of the counter
affidavit that the petitioner at one stage
stated that the compliance has not been
made whereas on the other hand, it is stated
that he had received two blank pages, thus
the learned counsel for the respondent
submits that apparently the contention of
the learned counsel for the petitioner is not
correct.

18. Be that as it may, the fact remains
that even if two pages have been received
yet there can be no denial of the fact that
the copy of the plaint, the affidavit and
application under Order 39 Rule 1 and 2
C.PC. and its accompanying affidavit with
the necessary documents filed by the
private respondent no.3 could not be
encapsulated within two pages nor the
registered cover could contain all such
material and the charges of postal cover is
of 20 grams. Thus, there is apparently, no
way that the compliance in terms of Order
39 Rule 3 CPC has been done correctly.

19. In the aforesaid circumstances, it
is clear that the private respondent no.3 did
not comply with the direction of the Court
vide order dated 06.09.2022 and two courts
have also ignored the fact that their order of
injunction was subject to the compliance
and if the compliance is wanting in
substance then there is no compliance in
the eyes of law.

20. At this stage, it will also be
relevant to notice that an injunction is a
purely discretionary relief and therefore, if
a person comes to court, he must come with
clean hands. A party is not entitled to
persuade the court to pass an order in his
favour while on the other hand the
condition attached to the said order is
violated. Moreover if the legislature has
provided for an act to be done then it must
be done in its letter and spirit.

21. At this stage, the decision of the
Apex Court in Shiv Kumar Chadha Vs.
Municipal Corporation of Delhi and
other; (1993) 3 SCC 161 will be
worthwhile to be noticed and paras 31 to 35
reads as under:-

31.
Under
the
changed
circumstance with so many cases pending
in courts, once an interim order of
injunction is passed, in many cases, such
interim orders continue for months; if not
for years. At final hearing while vacating
such interim orders of injunction in many
cases, it has been discovered that while
protecting the plaintiffs from suffering the
alleged injury, more serious injury has been
caused
to
the
defendants
due
to
continuance of interim orders of injunction
without final hearing. It is a matter of
common knowledge that on many occasions
even public interest also suffers in view of
such interim orders of injunction, because
persons in whose favour such orders are
passed are interested in perpetuating the
contraventions made by them by delaying
the final disposal of such applications. The
208 INDIAN LAW REPORTS ALLAHABAD SERIES
court should be always willing to extend its
hand to protect a citizen who is being
wronged or is being deprived of a property
without any authority in law or without
following
the
procedure
which
are
fundamental and vital in nature. But at the
same time the judicial proceedings cannot
be used to protect or to perpetuate a wrong
committed by a person who approaches the
court.

32.Power to grant injunction is
an extraordinary power vested in the court
to be exercised taking into consideration
the facts and circumstances of a particular
case. The courts have to be more cautious
when the said power is being exercised
without notice or hearing the party who is
to be affected by the order so passed. That
is why Rule 3 of Order 39 of the Code
requires that in all cases the court shall,
before grant of an injunction, direct notice
of the application to be given to the
opposite-party, except where it appears that
object of granting injunction itself would be
defeated by delay. By the Civil Procedure
Code (Amendment) Act, 1976, a proviso
has been added to the said rule saying that
?where it is proposed to grant an injunction
without giving notice of the application to
the opposite-party, the court shall record
the reasons for its opinion that the object of
granting the injunction would be defeated
by delay??.

33.It has come to our notice that
in
spite
of
the
aforesaid
statutory
requirement, the courts have been passing
orders of injunction before issuance of
notices or hearing the parties against
whom such orders are to operate without
recording the reasons for passing such
orders. It is said that if the reasons for
grant of injunction are mentioned, a
grievance can be made by the other side
that court has prejudged the issues involved
in the suit. According to us, this is a
misconception about the nature and the
scope of interim orders. It need not be
pointed out that any opinion expressed in
connection
with
an
interlocutory
application has no bearing and shall not
affect any party, at the stage of the final
adjudication. Apart from that now in view
of the proviso to Rule 3 aforesaid, there is
no scope for any argument. When the
statute itself requires reasons to be
recorded, the court cannot ignore that
requirement by saying that if reasons are
recorded, it may amount to expressing an
opinion in favour of the plaintiff before
hearing the defendant.

34.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
2 All. Upendra Nath Srivastava Vs. Addl. District & Sessions Judge/Special Judge,
 Pocso Act, Court No. 1, Lko & Ors.
209
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
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
ofTaylorv.Taylor[(1875) 1 Ch D 426 : 45 LJ
Ch 373] andNazir Ahmedv.Emperor[AIR
1936 PC 253 (2) : 63 IA 372 : 37 Cri LJ
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 Adkev.Govind Joti
Chavare[(1975) 1 SCC 559 : AIR 1975 SC
915] .

35.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 theSupreme Court
Practice1993, 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...."

22. Insofar as decision cited by the
counsel
for
private
respondent
is
concerned, it would reveal that the facts of
the said case are quite different inasmuch
as the issue of Order 39 Rule 3 was not
directly in question in the said case as the
defendant has put in appearance and at the
said stage of inception the objections was
not pressed rather it was raised alongwith
the merits and once the application under
Order 39 Rule 1 and 2 CPC was decided on
merits, and affirmed in appeal, the said
ground was raised before the High Court.
However, in the instant case, the petitioner
has come up before this Court by raising
the issue at the inception and the
210 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Order 39 Rule 1 and 2
CPC has yet not been decided on merits.
Hence, the said decision may not come to
the aid of the private respondent and it does
not consider the decision of the Apex Court
in Shiv Kumar Chaddha (supra).

23. In view of the aforesaid, this
Court is of the clear opinion that both the
courts were not justified in brushing aside
the issue before it solely on the ground that
the petitioner had already put in appearance
before the court and all the objections can
be heard by the court concerned.

24. This matter requires to be seen
from another angle inasmuch as once an
order of ex parte injunction has been passed
which requires the plaintiff to comply with
the provisions of order 39 Rule 3 and even
though, if the defendant gets the knowledge
and puts in appearance and may file his
objections in terms Order 39 Rule 4 CPC
but the fact remains that it is the plaintiff,
who is required to adhere to the legislative
mandate of order 39 Rule 3 CPC and in the
instant case the order of ex parte injunction
dated
06.02.2022
which
categorically
required the plaintiff to comply with the
said provision within 24 hours. Having
failed to do so, it is not open for the
plaintiff to take advantage of his own
wrong or else it will give a very unfair
message that a person who gets an order
from the count subject to conditions yet he
can take benefit of it even without
complying with the said conditions then it
will
amount
to
rewarding
such
unscrupulous plaintiff for his own wrong
and will also amount to perpetuating the ex
parte injunction which may operate harshly
against the other party.

25. The trial courts must look into the
issue regarding the non-compliance of the
conditions upon which an injunction order
is granted by the court. Illustratively if an
injunction order is granted ex parte subject
to certain terms or conditions imposed as
provided under Order 39 Rule 2 Sub-Rule
(2) or even relating to the compliance of
Order 39 Rule 3, and later after service if it
is brought to the notice of the court that the
party in whose favour the interim order
subsists has got the same on the basis of
false, misleading or vexatious pleadings or
documents or it is informed to the Court
that the mandatory compliance of Order 39
Rule 3 has not been done as per law then
the trial court must be prompt in vacating
such interim order or refuse to extend it so
that a party should not be rewarded for his
sharp tactic. The Court if it is quick in
granting incongruous ex parte, it must be
equally quick on vacating it or refusing to
extent it, if it finds a party misusing it.

26. There is no justification that once
a party has put in appearance then the
matter be decided on merits and the issue
of non-compliance or adoption of sharp
tactic to gain the order must not go
unnoticed and must be addressed by the
trial courts at the first given opportunity.
This attitude of the trial courts does more
harm then good and must be eschewed.

27. In view of the aforesaid, this
Court
considering
the
facts
and
circumstances finds that the order dated
06.09.2022 in so far as it grants and
continues to extend the ex parte injunction
order is concerned cannot be sustained and
the ex parte injunction order shall stand
discharged and the order of the appellate
court dated 26.05.2023 shall also stand set
aside. It is directed that the parties shall
appear before the trial court on 15.02.2024
[which as per the parties is the date fixed]
and the trial court after hearing the parties
2 All. Jagat Singh Vs. State of U.P. & Anr.
211
shall decide the application for injunction
expeditiously on merits without granting
any unnecessary adjournment to either of
the parties and endeavour be made to
decide the said application, preferably
within a period of two weeks from the date
fixed i.e. 15.02.2024. It is further clarified
that the injunction order granted ex parte
has been discharged solely on the ground of
non-compliance of Order 39 Rule 3 CPC
and not on merits, hence the trial court shall
decide the application on its own merits.

28. With the aforesaid, the petition is
allowed. Costs are made easy.
----------
(2023) 2 ILRA 211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 6225 of 2022

Jagat Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Kumar Dwivedi, Sri Gaurav
Dwivedi

Counsel for the Respondents:
G.A.

Information Technology ACT-Section 66A,
67A-Application for discharge preferred on
behalf of the petitioner- rejected and the order
was
affirmed
by
the
appellate
court-
chargesheet
was
submitted
only
under
Sectiontion 66 A of the I.T. Act-cognizance was
taken for that offence only -evidence was
collected -accused sent obscene message -text
message not come within the meaning of
"sexually explicit act or conduct" as given under
Sectiontion 67A of the I.T. Act- trial court
definitely need not go into evidentiary value of
the material collected at this stage- need not
conduct any roving enquiry-impugned order set
aside. Petition disposed. (E-9)

Cases cited:

1. Shreya Singhal Vs U.O.I.& ors. reported in
AIR 2015 SC 1523

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

01. Heard Sri Kamlesh Kumar
Dwivedi, learned counsel for the petitioner
and Sri O. P. Mishra, learned A.G.A. for the
State-respondent.

02. This petition under Article 227 of
the Constitution of India has been moved
with a prayer to set aside the orders dated
13.05.2022 and 12.02.2019 passed by the
revisional
court
and
the
trial
court
respectively whereby the application for
discharge preferred on behalf of the
petitioner was rejected and the order was
affirmed by the appellate court in a case
arising out of case crime no.209 of 2016,
under Section 66 A of I.T.Act.

03. The facts relevant for the purpose
of this petition are as below:-

A F.I.R. was lodged against
unknown persons with the allegation that
some unknown person was transmitting
obscene messages from a particular mobile
number (as given in the F.I.R.) to the
mobile of "would be husband" of the sister
of the informant. On the basis of this F.I.R.
investigation
was
conducted
and
chargesheet under Section 66-A of the
I.T.Act was submitted against the petitioner
and cognizance was taken. An application
was moved on behalf of the accused that no