IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1557 of 2008 SANJAY KUMAR SINGH Versus ABHA SINGH & ORS ----------- 2. 17.9.2008 Heard counsel for the petitioner. This Court on earlier occasion being informed by the counsel for the petitioner that its injunction petition filed on 25.07.2008 (Annexure-1) had not been heard and disposed of and was mechanically adjourned had passed the following order on 14.08.2008 in C.R. no. 1275/2008 :- “Heard counsel for the petitioner. While this Court would not find any jurisdictional error in the impugned order, Mr. Shivaji Pandey, learned senior counsel appearing on behalf of the petitioner points out that if prayer for injunction was made before the court below, same ought to have been disposed of expeditiously and not in a routine manner as has been sought to be done in the impugned order. In the circumstances, this court would only direct the court below to 2 consider the injunction matter of the petitioner expeditiously in accordance with law. With the above direction this application is disposed of.” In this Civil Revision application the grievance of the petitioner is that the said injunction matter has yet not been disposed of and its hearing has been mechanically adjourned. In this regard the petitioner has made following statements in paragraph no. 17 to 21 :- “17. That the petitioner has filed the photocopy of C.C. of the order dated 14.08.2008 passed in C.R. No. 1275 of 2008, in Title Suit NO. 64 of 1993 on 01.09.2008, and the said order dated 14.08.2008 passed in C.R. no. 1275 of 2008 has also been received by the Court below itself from Hon’ble High Court and the same has been mentioned in the order dated 01.09.2008 of Title Suit no. 64 of 1993 in the Court below. 3 18. That on 01.09.2008, this petitioner has argued on the injunction petition dated 25.07.2008 filed in Title Suit no. 64 of 1993 and has also pointed out about the order dated 14.08.2008 and direction of Hon’ble High Court in C.R. No. 1275 of 2008 and prayed for passing of order of status-quo as the matter is urgent but the learned court (Incharge Court Sub-Judge-IV Patna) has fixed the next date on 25.09.2008 in the suit. 19. That just on the next day i.e. on 02.09.2008, the petitioner has filed a supplementary injunction petition dated 02.09.2008 with a prayer to pass order of status-quo as the defendants and their alleged collusive men are making construction over plot no. 1360 and construction work is still going on rapidly by the alleged 4 purchasers. 20. That on 02.09.2008, this petitioner has also filed another petition with a prayer to recall the order dated 01.09.2008 fixing the next date 25.09.2008 in Title Suit no. 64 of 1993 for 02.09.2008 as the construction work over plot no. 1360 is rapidly still going on, and also prayed to disposed off the injunction petition dated 25.07.2008 21. That the learned court below has not passed any order either on recall petition or on supplementary injunction petition dated 02.09.2008 as well as on original injunction petition dated 25.07.2008 and again illegally passed order on 02.09.2008 to put the petitions filed on 02.09.2008 i.e. the petition to recall the order fixing the date fixed on 25.09.2008 in Title Suit no. 64 5 of 1993 as well as the supplementary injunction petition, on the date fixed in the suit which amounts to denial of grand of injunction and hence, this revision is needed to be filed against the order dated 02.09.2008.” On the basis of aforesaid pleadings it has been categorically asserted by Sri Shashi Shekhar Dwiwedi, the learned senior counsel for the petitioner that the order of this Court dated 14.8.2008 directing the court below to consider the injunction matter at the expeditiously was produced before it on the date fixed i.e. 1.9.2008 and yet the court below had mechanically adjourned the case to 25.09.2008 despite commencement of hearing on the injunction matter. It is quite painful for this Court to note that even a direction given by this Court in the order dated 14.8.2008 in C.R.No. 1275/2008 (Annexure 3) was thus sought to be avoided if not altogether disobeyed by the court below. 6 This Court would say no more for the present but would only remind the court below as to what was held by the Apex Court in a similar circumstance, in the case of A. Venkatasubbiah Naidu vs. S. Chellappan & ors., reported in AIR 2000 S.C. 3032. It is for the court concerned to note that the Apex Court in such matter has taken the things very seriously as will be evident from the following passage of the aforementioned judgment in Naidu’s case (supra): “19. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional Court during the 7 pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3A 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. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest 8 suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.” (Underlining by this Court) This Court would thus find that the petitioner has been rendered remedyless only on account of inaction on the part of the Court below. The Court below ought to have looked into the urgency of the matter in the light of allegation that taking advantage of pendency of the injunction petition, the other side was going with its construction work in full swing so as to make the prayer of injunction of the petitioner infructuous. There seems to be infact no justifiable reason for the Court below to keep an urgent application of injunction filed on 9 25.07.2008 pending for hearing for two months. Under such circumstances the court below is hereby directed to take up hearing of the injunction matter on the next date fixed i.e. 25.9.2008 and continue as well as complete such hearing on day to day basis tell it would pass its final order which must be passed before closure of the civil court for Puja Holidays on 29th September 2008. It is however made clear that this court has not expressed any opinion on the merits of the prayer of injunction which must be decided strictly in accordance with law without being influenced by any observation made in this order. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/