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Thursday, October 9, 2014

Order 39 Rule 1 CPC - suit for permanent injunction along with interim injunction filed on 23-6-2014 - I. A. was heard on 22-8-2014 urgent notice was order and adjourn the case for 23-9-2014 - their Lordships held that When a prima facie case is made out, the Courts must grant temporary injunction and see that the plaintiff is not dispossessed in the meanwhile. The urgency of passing of orders under Order 39 Rule 1 CPC should be kept in mind. Even where the Court is not inclined to grant temporary injunction or decides to issue urgent notice in that case also the Court should issue urgent notice and post the matter to a shortest date. When there is urgency in the matter the attitude of the Courts in posting the matter to a longer date, in fact defeat the purpose of Order 39 Rule 1 CPC.= C.R.P. No. 2950 of 2014 03-09-2014 Smt. K. Vijaya Lakshmi.. Petitioner G. Nageshwara Reddy and others .. Respondents = 2014 Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11898

Order 39 Rule 1 CPC - suit for permanent injunction along with interim injunction filed on 23-6-2014 - I. A. was heard on 22-8-2014 urgent notice was order and adjourn the case for 23-9-2014 - their Lordships held that When a prima facie case is made out, the Courts must grant temporary injunction and see that the plaintiff is not dispossessed in the meanwhile.  The urgency of passing of orders under Order 39 Rule 1 CPC should be kept in mind. Even where the Court is not inclined to grant temporary injunction or decides to issue urgent notice in that case also the Court should issue urgent notice and post the matter to a shortest date.   When there is urgency in the matter the attitude of the Courts in posting the matter to a longer date, in fact defeat the purpose of Order 39 Rule 1 CPC.=

Order 39 Rule 1 CPC is as follows.
       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, 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.

When any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or where the defendant
threatens or intends to remove or dispose of his property with a view to
defrauding his creditors or where 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 grant a temporary
injunction.  Of course, the plaintiff has to establish prima facie case.  It
becomes the duty of the Courts to examine whether there is any urgency
in the matter or not.  The Courts should go through the averments made
by the party in the supporting affidavit and also the pleadings and
documents filed in support of the case of the plaintiff.  When a prima facie
case is made out, the Courts must grant temporary injunction and see
that the plaintiff is not dispossessed in the meanwhile.  The urgency of
passing of orders under Order 39 Rule 1 CPC should be kept in mind.
Even where the Court is not inclined to grant temporary injunction or
decides to issue urgent notice in that case also the Court should issue
urgent notice and post the matter to a shortest date.  The Court should
examine what is the reasonable time required to serve the notice upon
the respondents.  Where the plaintiff undertakes to serve the notice within
two or three days, the matter need not be adjourned to a longer date.  It
can be posted within four days or a week.  When there is urgency in the
matter the attitude of the Courts in posting the matter to a longer date, in
fact defeat the purpose of Order 39 Rule 1 CPC.

2014 Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11898

THE HONBLE SRI JUSTICE B. CHANDRA KUMAR        

C.R.P. No. 2950 of 2014

03-09-2014

Smt. K. Vijaya Lakshmi.. Petitioner

 G. Nageshwara Reddy and others .. Respondents  

Counsel for Petitioner:  Sri C. Hanumantha Rayudu

Counsel for respondents:     ---

<GIST:

>HEAD NOTE:  


?CASES REFERRED :    

THE HONBLE SRI JUSTICE B. CHANDRA KUMAR        

C.R.P. No. 2950 of 2014

Order:

      This CRP is filed against the docket order dated 22.08.2014 passed
in IA No.1122 of 2014 in OS No.361 of 2014 on the file of the Principal
Junior Civil Judge, Kurnool.
       The petitioner in this revision is the plaintiff in the suit.  She filed
the suit against the respondents herein for permanent injunction in
respect of the suit schedule property i.e., the land admeasuring 561.11
sq. yards bearing plot No.2 in Survey No.920/1, situated at Kallur village
and Mandal, Kurnool District, within Kurnool Municipal Corporation limits,
69th Ward with specific boundaries.  As seen from the stamps of the Court
below the said suit was filed on 23.06.2014.  Along with that suit the
petitioner herein filed IA No.1122 of 2014 under Order 39 Rules 1 and 2
read with Section 151 CPC praying the Court to grant ad interim injunction
restraining the respondents, their men etc., from interfering with her
peaceful possession and enjoyment over the suit schedule property
pending disposal of the suit.  The petitioner in her affidavit specifically
alleged that the defendants without having any right tried to dispossess
her from the suit schedule property on 20.05.2014.  It is also her case
that when the Government officials tried to interfere with her possession
she filed WP No.15041 of 2014 and obtained interim direction in WPMP
No.18639 of 2014 on 03.06.2014.  It is submitted that the said writ
petition is still pending.  IA No.1122 of 2014 was heard on 22.08.2014 and
the learned Principal Junior Civil Judge, Kurnool, passed orders as follows.
       Heard.  Issue urgent notice to the respondents.  Call on
23.09.2014.
      When the suit was filed on 23.06.2014 it is not clear under what
circumstances the matter was heard on 22.08.2014.  Now this revision is
filed challenging the order dated 22.08.2014 in ordering urgent notice to
the respondents.
      Learned counsel for the petitioner submitted that the lower Court
ought to have considered the urgency in the matter and that there is
threat of dispossession of the petitioner from the suit schedule property.
      Order 39 Rule 1 CPC is as follows.
       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, 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.

      The above referred provision enables the Court to grant temporary
injunction even without issuing notice to the respondents.  The above
provision has been made with an intention to preserve the property as it
is.  When any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or where the defendant
threatens or intends to remove or dispose of his property with a view to
defrauding his creditors or where 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 grant a temporary
injunction.  Of course, the plaintiff has to establish prima facie case.  It
becomes the duty of the Courts to examine whether there is any urgency
in the matter or not.  The Courts should go through the averments made
by the party in the supporting affidavit and also the pleadings and
documents filed in support of the case of the plaintiff.  When a prima facie
case is made out, the Courts must grant temporary injunction and see
that the plaintiff is not dispossessed in the meanwhile.  The urgency of
passing of orders under Order 39 Rule 1 CPC should be kept in mind.
Even where the Court is not inclined to grant temporary injunction or
decides to issue urgent notice in that case also the Court should issue
urgent notice and post the matter to a shortest date.  The Court should
examine what is the reasonable time required to serve the notice upon
the respondents.  Where the plaintiff undertakes to serve the notice within
two or three days, the matter need not be adjourned to a longer date.  It
can be posted within four days or a week.  When there is urgency in the
matter the attitude of the Courts in posting the matter to a longer date, in
fact defeat the purpose of Order 39 Rule 1 CPC.  In the above
circumstances, I am of the view that there is no need to issue notice to
the respondents in this revision.  The revision can be disposed of at the
admission stage giving following directions to the lower Court.
      The learned Principal Junior Civil Judge is directed to issue notice to
the respondents or their counsel and advance the matter to any date
within a period of seven (7) days from the date of receipt of a copy of this
order and hear the matter within a period of seven (7) days thereafter
and pass appropriate orders in accordance with law.  However, in the
meanwhile, both the parties are directed to main status quo obtaining as
on today with regard to possession.
      Accordingly, the CRP is disposed of.  However, in the
circumstances, no costs.
      As a sequel, the miscellaneous petitions, if any, pending in this
revision shall stand closed.

______________________  
B. CHANDRA KUMAR, J.    
Date: 03.09.2014

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