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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • N. K. Seth
  • Umeshwar Prasad
Judges
  • N.K Mehrotra, J.
Acts
  • provisions of S. 26-A(1)(2) of the U.P Urban Planning and Development Act, 1973.
  • S. 115, C.P.C by the Amendment Act
  • 2 of O. 39, C.P.C Section 115(2)
  • 3 of O. 39 of the Code. Rule 3
  • provisions of Rule 3 of O. 39.
  • Rules 1 and 2 of O. 39, C.P.C,
  • Development Act, 1993
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • N. K. Seth
  • Umeshwar Prasad
Judges
  • N.K Mehrotra, J.
Acts
  • provisions of S. 26-A(1)(2) of the U.P Urban Planning and Development Act, 1973.
  • S. 115, C.P.C by the Amendment Act
  • 2 of O. 39, C.P.C Section 115(2)
  • 3 of O. 39 of the Code. Rule 3
  • provisions of Rule 3 of O. 39.
  • Rules 1 and 2 of O. 39, C.P.C,
  • Development Act, 1993
See more information ...
Smart Summary

Structured Summary of the Opinion: Revision under Section 115, C.P.C.

Factual and Procedural Background

This is a revision under Section 115, C.P.C. against the order dated 22-8-2001 passed by the Civil Judge (Senior Division), Mohanlalganj, Lucknow, which issued notice on an injunction application filed by the applicants in Regular Suit No. 144 of 2001 (Smt. Urmila Devi v. Nagar Nigam, Lucknow). The trial court found there was no justification for granting an ex parte ad interim injunction in favour of the plaintiff and directed issue of notice fixing 7-9-2001 for disposal of application No. 6-C for ad-interim injunction.

The plaintiffs (revisionists) claimed long possession (over six decades) and ownership of premises No. 292/4-A at Tulsidas Marg (Victoria Street), Lucknow. Part of the premises houses the revisionists and part contains an oil mill run under the name "Narain Oil Mill" since 1945. Documents filed included sales-tax assessment, fire insurance from Phoenix Assurance Co. Ltd., and a telephone record. They stated that on 18-8-2001 officials of Lucknow Nagar Nigam arrived and asked them to vacate a portion of the factory premises and servant quarters (about 3500 sq. ft.), alleging Nagar Nigam ownership; the officials allegedly gave three days to remove effects and threatened demolition.

The plaintiffs filed a suit for permanent injunction and an application for ad interim injunction under Order 39 Rules 1 & 2 read with Section 151, C.P.C., supported by an affidavit of Kailash Chandra Agarwal. The plaintiffs also pleaded that Lucknow Nagar Nigam lacked authority under Section 26-A(1)(2) of the U.P. Urban Planning and Development Act (they contended the power under Section 26-A lay with the Development Authority under Section 4 of the Act applicable to the development area), and that Nagar Nigam, governed by Nagar Mahapalika Adhiniyam, could not resort to dispossessing them.

Legal Issues Presented

  1. Whether the trial court's order issuing notice on the injunction application amounted to an order under Order 39 Rules 1 or 2 (appealable) or under Order 39 Rule 3 (not appealable) of the Code of Civil Procedure.
  2. Whether Section 115(2), C.P.C. (bar on revision where appeal lies) precludes maintainability of the present revision against the impugned order.
  3. Whether the plaintiffs were entitled to an ad-interim injunction pending the suit, i.e., whether prima facie case, balance of convenience and risk of irreparable injury existed in their favour.

Arguments of the Parties

Plaintiffs / Revisionists' Arguments

  • The plaintiffs asserted long-standing ownership and possession of the premises (over six decades) and continuous operation of an oil mill since 1945, supported by documentary annexures and affidavit(s).
  • They alleged that Nagar Nigam officials attempted forcible dispossession on 18-8-2001, gave three days' notice to remove effects and threatened demolition, justifying the suit for permanent injunction and the application for ad-interim injunction.
  • They contended Nagar Nigam lacked jurisdiction under Section 26-A(1)(2) of the U.P. Urban Planning and Development Act to dispossess them, asserting that such powers belonged to the Development Authority under Section 4 for the development area.
  • They relied on documentary evidence and the unrebutted affidavit of Kailash Chandra Agrawal to establish a prima facie case, balance of convenience and irreparable injury.

Opposite Party's Arguments

  • The learned counsel for the opposite party argued that the revision is not maintainable because the impugned order was an order under Rules 1 and 2 of Order 39, C.P.C., against which an appeal lies under Order 43 Rule 1(r), and thus Section 115(2) bars the High Court from entertaining a revision.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Ram Mahale v. Smt. Shobha Venkat Rao, (1989) 4 SCC 131 : AIR 1989 SC 2097 Principle that a person in settled possession of property cannot be dispossessed by the owner except by recourse to law. The court relied on this Apex Court decision to support the proposition that the plaintiffs' settled possession entitled them to protection and reinforced the finding of a prima facie case for injunction.
Khushi Lal v. Gore Lal, AIR 1986 Madh Pra 47 Illustration that a trial court should not grant an ex parte injunction without hearing the opposite party and that in such circumstances the court may proceed under Order 39 Rule 3. The court cited this decision for the proposition that issuance of notice (rather than granting ex parte injunction) can properly be characterized as proceeding under Order 39 Rule 3.
Lakhai v. Ram Niwas, AIR 1987 All 345 Holding that an order issuing notice on an application for injunction falls under Rule 3 of Order 39 and that an order under Rule 3 is not appealable under Order 43 Rule 1(r). The court applied this authority to determine that the impugned order issuing notice was an Order 39 Rule 3 order and therefore not appealable, affecting the maintainability analysis under Section 115(2).
Arya Pratinidhi Sabha v. Man Mohan Tiwari, (1993) 2 LCD 595 (relying on H. Bevis & Company v. Ram Behari, AIR 1951 All 8) Proposition that against an order refusing to grant an ex parte injunction a revision is maintainable and such an order can be treated as under Order 39 Rule 3. The court relied on this to support the view that an order issuing notice (refusing ex parte ad interim relief) is revisable and should be treated under Order 39 Rule 3 (not appealable).
Sukh Vir Singh v. IIIrd Addl. District Judge, (2000) 1 JCLR 423 (All) Held that an order for issuing notice under Rule 3 of Order 39 without grant of ad interim injunction is revisable and not appealable. The court cited this decision to reinforce the proposition that the impugned order was revisable under the High Court's jurisdiction and not subject to appeal under Order 43 Rule 1(r).

Court's Reasoning and Analysis

The court's analysis proceeded in two main strands: (A) merits for interim injunction; and (B) maintainability of the revision under Section 115(2), C.P.C.

A. Merits for Interim Injunction

  1. From the documents filed by the plaintiffs and the unrebutted affidavit of Kailash Chandra Agrawal, the court found that a prima facie case in favor of the applicants for grant of interim injunction was made out.
  2. Because the plaintiffs were already in possession of the premises, the court held that the balance of convenience lay in their favour.
  3. The court concluded that if injunction were not granted the plaintiffs would suffer irreparable loss and injury.
  4. The court therefore found that all three traditional ingredients for granting interim injunction—prima facie case, balance of convenience, and risk of irreparable injury—were present.
  5. The court expressly relied on the Supreme Court authority in Krishna Ram Mahale v. Shobha Venkat Rao to reinforce that settled possession requires due process for dispossession, supporting protective relief.

B. Maintainability of the Revision (Procedure)

  1. The opposite party argued that the impugned order fell under Order 39 Rules 1 and 2 and was appealable under Order 43 Rule 1(r), thereby invoking the bar in Section 115(2) C.P.C.
  2. The court examined the operative portion of the impugned order and concluded that it was made under Order 39 Rule 3, C.P.C. The court quoted Rule 3 which requires notice to the opposite party before granting an injunction except where delay would defeat the object, and prescribes procedures when granting injunction without notice.
  3. The court surveyed precedent (Khushi Lal, Lakhai, Arya Pratinidhi Sabha, Sukh Vir Singh) holding that an order issuing notice on an application for injunction is governed by Rule 3 of Order 39 and is not appealable under Order 43 Rule 1(r), and that such orders are revisable (i.e., open to revision in the High Court) rather than being the subject of appeal.
  4. Applying these authorities, the court concluded that the impugned order was an Order 39 Rule 3 order; since no appeal lies against such an order under Order 43 Rule 1(r), the bar in Section 115(2) was not attracted and did not preclude the revision.
  5. The court noted that the impugned order was passed before the 1999 Amendment Act (amending Section 115, C.P.C.) came into effect on 1-7-2002, and therefore the amended provisions were not considered for deciding the revision.

Holding and Implications

Core Holding: The revision is allowed; the impugned order of the trial court is characterized as an order under Order 39 Rule 3, C.P.C., and the revision under Section 115, C.P.C. is maintainable because Section 115(2) does not bar it in the circumstances of this case.

Relief Granted: The application for ad-interim injunction (Application No. 6-C) is allowed. The court ordered that the possession of the revisionists over Premises No. 292/4-A situated at Tulsi Das Marg (previously Victoria Street), Lucknow shall not be disturbed except in due course of law during the pendency of the suit.

Implications:

  • Direct effect: The plaintiffs (revisionists) receive interim protection of their possession for the duration of the suit; the Nagar Nigam is restrained from disturbing their possession except in due course of law.
  • Procedural consequence: The impugned order is treated as an Order 39 Rule 3 order and therefore not appealable under Order 43 Rule 1(r); the High Court may entertain the revision in such circumstances (Section 115(2) bar not triggered here).
  • Broader precedent: The opinion applies and follows existing case law on classification of issuance-of-notice orders under Order 39 Rule 3 and does not purport to lay down a new law beyond applying those authorities. The court observed the revision was decided without considering the post-1999 amendment to Section 115 (effective 1-7-2002).

Result: Revision allowed; ad-interim injunction granted with preservation of plaintiffs' possession during pendency of suit.

Show full summary ...

    Smt. Urmila Devi And Others v. Nagar Nigam, Lucknow .

    1. This is a revision u/S. 115, C.P.C against the order dated 22-8-2001 passed by the Civil Judge (Senior Division), Mohanlalganj, Lucknow issuing notice on injunction application filed by the applicants in the Regular Suit No. 144 of 2001 (Smt. Urmila Devi v. Nagar Nigam, Lucknow) by which the learned Civil Judge has found that there is no justification for granting an ex parte ad interim injunction in favour of the plaintiff and has directed to issue notice fixing 7-9-2001 for disposal of application No. 6-C for ad-interim injunction.

    2. I have heard the learned counsel for the parties and have perused the record. The case of the plaintiffs is that the plaintiff-revisionists are the owners in possession of the premises No. 292/4-A situated at Tulsidas Marg. known as Victoria Street, Lucknow since last over six decades. In a portion of the said premises, the revisionists reside while in a portion thereof, they are running an oil mill under the name and style of “Narain Oil Mill” since the year 1945. The said firm of the revisionists was regularly assessed in the Sales Tax Department. It was having fire insurance from Phoenix Assurance Co. Ltd. and it was having a telephone number 25105. In support of the said contention the revisionists have filed papers as annexures to the affidavit filed in support of the stay application. It has also been stated on oath that applicant No. 1 who is aged about 75 years, is living in the premises in question ever since her marriage and the applicants Nos. 2, 3 and 4 are living in the premises in question from their very childhood. It has been stated that on 18-8-2001 certain officials/employees of the Lucknow Nagar Nigam came in a truck of Lucknow Nagar Nigam and asked the applicants to vacate a portion of the factory premise and servant quarters built on plot of the land measuring about 3500 sq. fts. on the eastern side and alleged that the said part of land which is in possession of the applicants, belongs to Lucknow Nagar Nigam. It has further been stated that those persons had asked the applicants to remove their effects from the part of the premises within a period of three days, failing which they had threatened to demolish it by force. Therefore a suit for permanent injunction was filed by the applicant in the trial Court and alongwith the suit an application for ad interim injunction under O. 39, Rr. 1 and 2 read with S. 151, C.P.C supported by an affidavit of Kailash Chandra Agarwal was filed. It was also pleaded by the applicant that Lucknow Nagar Nigam is not vested with the authority or jurisdiction to resort to the provisions of S. 26-A(1)(2) of the U.P Urban Planning and Development Act, 1973. Since Nagar Nigam is governed by the provisions of Nagar Mahapalika Adhiniyam and it is not vested with the authority or jurisdiction to take recourse to dispossess the applicant from their properties. It has been pleaded by the plaintiffs/revisionists that the powers under S. 26-A are vested with the authority under U.P Urban Planning and Development Act, 1993 and not the authority under the Nagar Mahapalika Adhiniyam. It has further been pleaded that the property in question is situated under the development area under the said Act and as such the authority means the Development Authority under S. 4 for that area.

    3. After hearing the parties, I am of the opinion that from the documents filed by the plaintiffs/revisionists and the unrebutted affidavit of Kailash Chandra Agrawal a prima facie case in favour of the applicants/revisionists for grant of interim injunction is made out. Further since they are already in possession, the balance of convenience also lies in their favour for grant of injunction and in case injunction is not granted, they are bound to suffer irreparable loss and injury. Thus, all the three ingredients for grant of injunction to the plaintiffs exist. In support of their case, the plaintiff-revisionists have also relied upon the Apex Court's decision in the case of Krishna Ram Mahale v. Smt. Shobha Venkat Rao, reported in (1989) 4 SCC 131 : AIR 1989 SC 2097 wherein the Supreme Court have held that it is well settled in this country that where a person is in settled possession of the property, even on assumption that he has no right to remain in property, he cannot be dispossessed by the owner of the property except by recourse of law.

    4. The learned trial Court while refusing to grant ex parte injunction order failed to consider and appreciate the relevant facts and law on the point. Since all the three ingredience for grant of injunction i.e prima facie case, balance of convenience and irreparable loss and injury exists in favour of the plaintiffs, they ought to have been granted the interim injunction so as to protect their interest.

    5. The learned counsel for the opposite party has argued that this revision is not legally maintainable because against an order passed under Rules 1 and 2 of O. 39, C.P.C, there is a provision of appeal under O. 43, R. 1(r) against an order under Rr. 1 and 2 of O. 39, C.P.C Section 115(2) provides that:

    “The High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.”

    6. Now the question to be decided is whether the impugned order is an order under R. 1 or 2 of O. 39, C.P.C The relevant portion of the last paragraph of the impugned order is as follows:—

    7. The aforesaid operative portion of the impugned order goes to show that the learned trial Court has passed this order under O. 39, R. 3, C.P.C.O 39, R. 3, C.P.C is as follows:

    “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.”

    8. In Khushi Lal v. Gore Lal, reported in AIR 1986 Madh Pra 47, the trial Court did not think it proper to issue ex parte injunction without hearing the opposite party and held that grant of ex parte injunction will not be justified without notice. In revision the High Court of M.P at Gwalior held as follows (para 7):—

    “What the trial Court did in this case is that it neither passed an ex parte injunction in favour of the plaintiff nor refused to grant it. The trial Court could not decide from the material supplied by the plaintiff as to whether the parties are in joint possession of the suit land or otherwise. The trial Court therefore felt that without notice to the defendants it would not be just and proper to grant an ex parte temporary injunction. Therefore, the trial Court chose to proceed under R. 3 of O. 39 of the Code. Rule 3 reads;

    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.

    It is also required in the provision of this rule 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.”

    9. In Lakhai v. Ram Niwas, AIR 1987 All 345, it was held that (para 7):

    “The mere order issuing notice on an application for grant of an injunction clearly comes under the provisions of Rule 3 of O. 39. An order under R. 3 of O. 39 is not appealable under O. 43, R. 1(r).”

    10. In Arya Pratinidhi Sabha v. Man Mohan Tiwari, reported in (1993) 2 LCD 595 relying on the case of H. Bevis and Company v. Ram Behari, AIR 1951 All 8 it was held by Division Bench that against an order refusing to grant an ex parte injunction a revision is maintainable and this Court has also held that such an order is an order under O. 39, R. 3, C.P.C Similarly, in Sukh Vir Singh v. IIIrd Addl. District Judge, reported in (2000) 1 JCLR 423 (All) it was held that the order for issuing notice under R. 3 of O. 39 without grant of ad interim injunction is revisable and not appealable. In this case also the impugned order of issuing notice was treated to be an order under R. 3 of O. 39, C.P.C

    11. Therefore, in view of the legal proposition referred to above, the impugned order is an order under R. 3 of O. 39 and no appeal lies against that order under O. 43, R. 1(r) of the Code of Civil Procedure and since no appeal lies against this order, the bar of S. 115(2) is not applicable in the instant case.

    12. Since the impugned order was passed prior to the amendment of S. 115, C.P.C by the Amendment Act of 1999 with effect from 1-7-2002, the amended provisions has not been considered for deciding this revision. Therefore, the revision is liable to be allowed.

    13. In result, the revision is allowed.

    14. The application for an ad-interim injunction ‘6-C’ is allowed with the observation that the possession of the revisionists over the Premises No. 292/4-A situated at Tulsi Das Marg previously known as Victoria Street, Lucknow shall not be disturbed except in due course of law during the pendency of the suit.

    15. Revision allowed.

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    Comments

    Smt. Urmila Devi And Others v. Nagar Nigam, Lucknow .
    (Jan 28, 2003)