JUDGMENT
1. This appeal is filed by respondents in I.A. No. 96 of 2002 in O.S. No. 55 of 2002 on the file of Vacation Civil Judge, Rangareddy District at L.B. Nagar. After summer vacation was over, the said suit was made over to Principal Senior Civil Judge, Rangaredy District at L.B. Nagar for disposal and it is now pending as O.S. No. 415 of 2002 on the file of the said Principal Senior Civil Judge.
2. The respondents – plaintiffs filed the suit seeking a decree for perpetual injunction against the appellants. They also filed a petition under Order XXXIX Rules 1 and 2 C.P.C., in I.A. No. 96 of 2002 requesting the trial court to grant temporary injunction order restraining the appellants herein from interfering with their peaceful possession of suit schedule lands. On 13.5.2002 after hearing the learned counsel for the plaintiffs and perusing the documents filed along with the plaint, the learned Vacation Civil Judge dispensed with prior notice to the appellants herein and granted ad-interim injunction and posted the interim application to 5.6.2002. Questioning the said ex parte order of injunction granted by the Vacation Civil Judge, this appeal is filed by the appellants.
3. The learned counsel for the respondents – plaintiffs contended that the present appeal is not maintainable at this juncture. According to the learned counsel, the appellants – defendants can file appeal against the impugned ex parte order of injunction if the trial court fails to dispose of the said application within thirty days from the date of grant of ad-interim ex parte injunction in favour of the respondents herein. The learned counsel for both parties placed reliance on a decision of the Supreme Court in A. VENKATASUBBIAH NAIDU Vs. S.CHELLAPPAN, . The learned counsel for respondents invited the attention of this court to the observations made by the Supreme Court in paras 19, 20 21 of its judgment. According to the Supreme Court a three-pronged protection was given by the provisions in Order XXXIX Rule 3 C.P.C., to the party against whom the ex parte injunction order was passed. The protections are (i) the court is obliged to give him notice before passing the order; (ii) the court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days; and (iii) if for any valid reasons the court could not finally dispose of the application within the aforesaid time, the court has to record the reasons thereof in
writing. According to the learned counsel as the present appeal is within the expiry of thirty days from the date of ex parte order of injunction, this appeal is not maintainable. I am unable to accept the said contention. In para 20 of its judgment, the Supreme Court was pleased to observe that it is only by way of a very exceptional contingency, the court is empowered to bypass the protective measure, namely, that the court is obliged to give him notice before passing the order. In para 21 of the judgment, the Supreme Court categorically held that under the normal circumstances the party can prefer an appeal only against an order passed under Order XXXIX Rules1, 2, 2-A, 4 or 10 C.P.C., in terms of Order XLIII Rule 1 of the Code. The Supreme Court further observed that in a case where the mandate of Order XXXIX Rule 3-A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force.
4. The learned counsel for the appellants relied upon a decision of a Division Bench of this court in VALLURU HEMALATHA Vs. SETTIPALLI LPANDURANGA RAO, 2001 (2) ALD 270. In that case, placing reliance on the decision of the Supreme Court in A. Venkatasubbiah Naidu’s case (1 supra), it was contended before this court that when an ex parte interim injunction order was made by the trial court and if the said petition is not finally decided within thirty days, then only the aggrieved is entitled to file an appeal but not otherwise. In the above decision, a Division Bench of this court did not accept that contention and held that the appeal is maintainable. A similar decision of a Division Bench of this court in NCL INDUSTRIES LTD. HYD. & ANOTHER Vs. M.S. RAJU, . was also relied upon by the learned counsel for the appellants. In view of the principles of law laid down by the two Division Benches of this court, I am satisfied that the present appeal is maintainable even though period of thirty days from the date of ex parte order of injunction did not expire by the date of filing of the present appeal.
5. It is not necessary to consider the disputed facts for the disposal of this appeal. In para 6 of the affidavit filed in support of the injunction petition, the plaintiffs pleaded that the present appellants appeared to have entered into a development agreement-cum-GPA on 31.1.2001 and that the said developers M/s Fortune Construction Pvt. Ltd., represented by its Director Pavan Kumar Agarwal filed a civil suit in O.S. No. 327 of 2002 on the file of
Principal Senior Civil Judge, Rangareddy District and obtained an injunction order in I.A. No. 708 of 2002 on 11.4.2002 i.e., after pronouncement of the orders by the R.D.O., on 6.4.2002.
6. In view of the above pleading, it is very clear that by the time the learned Vacation Civil Judge granted ex parte ad-interim injunction in favour of the respondents-plaintiffs, there was already an injunction order granted against the plaintiffs – respondents by a competent Civil Court in force. Unmindful of the said injunction order being in force, the learned Vacation Civil Judge dispensed with notice to the appellants-defendants and ordered ex parte injunction order against the appellants. The present impugned ex parte order of injunction granted by the learned Vacation Civil Judge will come into conflict with another interim injunction granted by a competent Civil Court against the present plaintiffs-respondents. In these circumstances, in my considered opinion, the learned Vacation Civil Judge should not have dispensed with notice to the appellants-defendants and passed an ex parte order of injunction. He should have ordered notice to the appellants-defendants and then only disposed of the interim injunction petition field before him after hearing the appellants-defendants.
7. It is the contention of the learned counsel for the respondents-plaintiffs that in O.S. No. 327 of 2002, there was no reference to proceedings dated 6.4.2002 of R.D.O., and the present suit was filed taking into consideration the orders passed by the R.D.O., on 6.4.2002. In my considered opinion, this circumstance does not make any difference for the disposal of this appeal.
8. Only in exceptional cases the Civil Court is entitled to dispense with notice to the respondents – plaintiffs in an interim injunction application and grant ex parte injunction. In view of the subsistence of a valid order of injunction granted by a competent civil court against the plaintiffs, the learned Vacation Civil Judge should not have dispensed with notice to the appellants – defendants before passing any order on the injunction application filed by the respondents – plaintiffs.
9. The learned counsel for the respondents-plaintiffs further contended that in the present case the injunction was not sought against the plaintiff in O.S. No. 327 of 2002. The plaintiff in O.S. No. 327 of 2002 claimed right over the present suit property by virtue of development agreement-cum-GPA executed in his favour by the present appellants-defendants. The source of title for the present appellants-defendants and the said plaintiff in O.S. No. 327 of 2002 is one and the same. Further, in that suit the injunction was granted against the plaintiffs-respondents herein. That makes a lot of difference. Even though the learned Vacation Civil Judge was made aware of the fact that another injunction order granted by another competent civil court was subsisting on the date of the suit instituted before him, the learned Vacation Civil Judge ignored that fact and passed the impugned order and thus gave scope for two conflicting orders to be in force at one and the same time. I am, therefore, satisfied that the ex parte order of injunction granted by the Vacation Civil Judge is liable to be set aside. The Principal Senior Civil Judge before whom the suit is pending has to dispose of the injunction application on merits in accordance with law after giving reasonable opportunity to both the parties to place the material in support of their rival contentions regarding their rights over the suit property.
10. Ins the result, I allow the appeal. I set aside the ex parte order of injunction granted against the appellants herein in I.A. No. 96 of 2002 in O.S. No. 55 of 2002 on the file of Vacation Civil Judge, Rangareddy District. The Principal Senior Civil Judge, Rangareddy District shall dispose of I.A. No. 859 of 2002 in O.S. No. 415 of 2002 pending on his file in accordance with law after giving reasonable opportunity to both the parties to place their respective material before the court as expeditiously as possible, preferably within four weeks from the date of receipt of a copy of this order by it. No costs.