When exparte interim injunction was obtained by suppressing the material facts, it can be asked to vacate or varied or modified under Or.39 rule 4 of CPC

 

as per Order 39 Rule 4 read with Order 9 Rule 7 CPC, which is as under:- CPK,J & DEV,J CMA_56_ 2020 3 “ORDER XXXIX: Temporary Injunctions and Interlocutory Orders: Rule 4:- Order for injunction may be discharged, varied or set aside. Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: 1 [Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice: ORDER IX: Appearance of Parties and Consequence of Nonappearance Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous nonappearance. Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” In the light of the above provision of law, the appellants are at liberty to make an application seeking to vacate the order of ad-interim injunction or set aside the same by raising necessary objections, in which event, the trial Court shall consider and pass a detailed order assigning reasons in accordance with law. 

AP HIGH COURT

HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

                              &

HON’BLE SRI JUSTICE BATTU DEVANAND

C.M.A. No. 56 of 2010

CHILLI MALLESH

Versus

SAMITHI PLOT OWNERS WELFARE ASSOCIATION

JUDGMENT:- (per Hon’ble Sri Justice C. Praveen Kumar)

 This appeal is filed under Order 43 Rule 1 CPC assailing

the order dated 10.01.2020 passed in I.A.No. 7 of 2020 in

O.S.No. 9 of 2020 on the file of the Court of the learned XII

Additional District Judge, Visakhapatnam.

 Heard Sri R.Siva Sai Swaroop, learned counsel for the

appellants, Smt. Naga Swetha Attili, learned counsel for the

1

st respondent and Sri Reddy Venkata Ramana, learned

counsel for respondent Nos.6 to 8 and perused the material

placed on record.

 A perusal of the record shows that the plaintiff – M/s.

Samishti Plot Owners Welfare Association, which is a

registered society, filed a suit against defendants 1 to 9

(appellants and respondents 2 to 8 herein) for declaration

and consequential relief of injunction. Along with the suit,

the plaintiff filed an Interlocutory Application i.e. I.A.No. 7

of 2020 seeking grant of ad-interim injunction against the

defendants, their men and agents from interfering with the

possession and enjoyment of the members of the plaintiffsociety over petition schedule property. The trial Court, by

the impugned order dated 10.01.2020, granted ex parte adinterim injunction as prayed for in favour of the plaintiff. 

 CPK,J & DEV,J

 CMA_56_ 2020 2

 The learned counsel for the appellants – defendants 2

and 3 would contend that the suit schedule property which is

the subject matter of O.S.No. 9 of 2020 is part and parcel of

the suit schedule property in O.S.No. 146 of 2017 wherein

the appellants obtained an order of injunction against the

plaintiff, but the trial Court, without looking into this aspect,

passed ex parte order of ad-interim injunction which is under

challenge. He further urged that any order of stay or

injunction passed by the trial Court without considering

material particulars and the true fact suppressed by the

plaintiff is non-est in the eye of law.

 In all fairness, the impugned order passed by the trial

Court, is bereft of assignment of any cogent reasons and it is

no doubt true that the same is a non-speaking order. Having

regard to the fact that the trial Court, while passing the

impugned order, directed the suit to be listed on 10.02.2020

for hearing, and in view of the fact that the plaintiff

obtained ad-interim injunction suppressing the true facts,

the appellants should have taken recourse to file an

application before the trial Court seeking to vacate the

ad-interim injunction or set aside the same as per Order 39

Rule 4 read with Order 9 Rule 7 CPC, which is as under:- 

 CPK,J & DEV,J

 CMA_56_ 2020 3

“ORDER XXXIX: Temporary Injunctions and Interlocutory

Orders:

Rule 4:- Order for injunction may be discharged, varied or set

aside.

 Any order for an injunction may be discharged, or varied, or set

aside by the Court, on application made thereto by any party dissatisfied

with such order:

1

[Provided that if in an application for temporary injunction or in any affidavit

supporting such application, a party has knowingly made a false or

misleading statement in relation to a material particular and the injunction

was granted without giving notice to the opposite party, the Court shall

vacate the injunction unless, for reasons to be recorded, it considers that it

is not necessary so to do in the interests of justice:

ORDER IX: Appearance of Parties and Consequence of Nonappearance

Rule 7. Procedure where defendant appears on day of

adjourned hearing and assigns good cause for previous nonappearance.

 Where the Court has adjourned the hearing of the suit, ex

parte, and the defendant, at or before such hearing appears and assigns

good cause for his previous non-appearance, he may, upon such terms as

the Court directs as to costs or otherwise, be heard in answer to the suit as

if he had appeared on the day fixed for his appearance.”

 In the light of the above provision of law, the

appellants are at liberty to make an application seeking to

vacate the order of ad-interim injunction or set aside the

same by raising necessary objections, in which event, the

trial Court shall consider and pass a detailed order assigning

reasons in accordance with law.

 With the above observation, the Civil Miscellaneous

Appeal is disposed of. No order as to costs.

 As a sequel, Miscellaneous Petitions, if any pending,

shall stand disposed of as infructuous.

 __________________

 C. PRAVEEN KUMAR, J

04.03.2020

 _________________

 BATTU DEVANAND, J

bcj