SCA/6459/2008 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6459 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== URMILADEVI LAXMANSINH GAEKWAD & 2 - Petitioner(s) Versus VIRENDRASINH JASWANTSINH GAEKWAD & 7 - Respondent(s) ===================================================== Appearance : Mr. D.D. Vyas, Senior Advocate with Mr. Deep D. Vyas for Petitioner(s) : 1 – 3 with Mr. Jitendra Gaekwad, petitioner No.3. None for Respondent(s) : 1,4 - 7. Mr. SN Shelat, Senior Advocate with MR HARSHADRAY A DAVE with Mr. SJ Gaekwad for Respondent(s): 2-3, 8, ===================================================== CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 26 & 30/06/2008 SCA/6459/2008 2/36 JUDGMENT ORAL JUDGMENT In this petition, an order dated 17.4.2008 passed by 6th Additional Senior Civil Judge in Regular Civil Suit No. 156/2005 is brought under challenge. By virtue of the impugned order dated 17.4.2008 the learned Court has, inter alia directed the opponents i.e., the present petitioners from proceeding further with the construction work. Aggrieved by the said direction restraining further construction, the petitioners have preferred present petition. For the sake of convenience, the opponent in the said application Exh. 47 (who also happens to be opponent in the suit) is referred as 'petitioners' in this order and the respondent of this petition is referred as 'applicants' or plaintiffs. Besides the challenge against the order under Order 39 Rule 7, issues regarding scope of court's jurisdiction under said provision are also raised in this petition. Hence Rule. Considering the fact that the hearing of Exh. 47 & Exh.37 is to take place and the said applications are required to be heard expeditiously, the Advocates of both sides have requested that matter may be taken up for SCA/6459/2008 3/36 JUDGMENT hearing and final disposal. Thus Rule returnable today. With the consent and at the request of the advocates of both sides the petition is heard for final hearing today. 2. So as to appreciate the challenge by the petitioners against the impugned direction, it is necessary to consider the relevant factual background, which is as follows:- 2.1. The contesting parties are the first cousins. The applicants have filed a civil suit being Regular Civil Suit No. 156/2005 for diverse relief. The said suit, to say generally, is preferred with the prayer for demarcation of property and for a declaration of respective rights in the suit property. The suit property is a piece of land and certain constructions thereon which include residential premises also. 2.2. It is the case of the applicants that some where in 1968, the suit property bearing Survey No. 361/P and 362/2 was divided between the two brothers and the applicants and the petitioners are the legal heirs of the two brothers. It is the further case SCA/6459/2008 4/36 JUDGMENT of the applicants that the said division of the property was effected on an oral understanding by and between the two brothers and until recently the parties have conducted their affairs accordingly and have also bound themselves by the said understanding and have, hitherto, respected it. 2.3. It appears that in 2005 the applicants gathered an impression or apprehended that the petitioners were taking steps which would adversely affect the status of the property and their interests and would breach the understanding or which would be contrary to the division of property pursuant to the understanding between the 2 brothers, and that therefore they preferred the said suit. 2.4. The proceedings with reference to the said Suit have been going on since 2005. Along with the Plaint, the applicants had also preferred an application (Ex.5) for interim relief. While Exh.5 was under consideration, a purshis dated 18.11.2006, executed by both the sides, was filed and joint request to pass order below in Exh. 5in terms of the said purshis was made. Therefore, after considering the purshis and the request of both the sides, the SCA/6459/2008 5/36 JUDGMENT learned Court was pleased to pass an order dated 18.11.2006 directing the parties to act as per the terms of the purshis. 2.5. The discussion hereinafter would show that the said purshis as well as the order thereon have bearing on the subject matter of present petition and that therefore it is necessary to reproduce the contents of the said purshis (Exh. 35) as well as the order dated 18.11.2006 passed with reference to the said Exh. 35. They are as follows; “The parties humbly submit by this pursis that :- Without prejudice to the right & contentions of the parties raised in the plaint & written statement for the purpose of Ex.5 interim injunction application, both the parties will maintain status-quo as to transfer & construction changing character of the property, till the suit is heard. However, for the personal functions in the family & relatives and personal friends whatever temporary things are put & removed after the functions & that also without any commercial use by the parties will not be affected by SCA/6459/2008 6/36 JUDGMENT this pursis. It is further declared very humbly by the parties that looking to the disputes involved in the matter & the close relations of the parties the disposal of suit on merits may please be ordered as per convenience of the Hon'ble Court by fixing a deadline for the same the parties ensure that co-operate in such disposal without seeking any undue adjournments. With said declaration it is prayed to dispose of Ex.5 injunctions application.“ (emphasis given) ORDER In view of pursis at Ex.35 this application is here by dispossed off both the parties are here by ordered to act as per the terms of pursis. As the situation stated in pursis it is found justifiable to expedite the suit here both the parties are directed to complete their evidence, preferably within a month of this date.” (emphasis given) Sd/- Date: 18.11.2006 8th Addl.Senior Civil Judge & JMFC Vadodara. SCA/6459/2008 7/36 JUDGMENT 2.6. After the said order dated 18.11.2006 was passed, the subject suit was being heard further by the learned trial Court. A copy of the Rojkam of the said suit is produced on record of this petition. Heavy reliance is placed by the petitioners on the said Rojkam as they have tried to show from the said Rojkam that the proceedings of the suit were, by an order dated 5th March 2008, adjourned to 15.3.2008. On 15.3.2008, the Rojkam records, the hearing of Exh. 37 was adjourned to 19.4.2008. 2.7. Before proceeding further, it is necessary and appropriate to mention one development. After the order dated 18.11.2006 came to be passed by the learned Court in light of the purshis given by the parties, the petitioners herein appear to have taken certain steps viz. masonary work in respect of 2 rooms adjoining the garage which, according to the applicants, is in breach of the aforesaid purshis (Exh.35). Aggrieved by the said action of the petitioners, the applicants moved an application (Exh.37) dated 24.1.2008 alleging violation of the understanding recorded in the purshis and thereby breach of the order dated 18.11.2006. The petitioners herein filed their reply to the said SCA/6459/2008 8/36 JUDGMENT application-Exh.37 and denied the allegations. It is relevant to note that it was hearing of this application Exh. 37 which was adjourned to 19.4.2008 by the order dated 15.3.2008. During the hearing of this petition, it is given out by the parties that the said Exh. 37 is still pending and awaiting the decision thereon. 2.8. While the hearing of the aforesaid Exh. 37 was adjourned to 19.4.2008, the application Exh. 47 came to be moved by the applicants on 17.4.2008 (i.e., just 2 days prior to the scheduled date of hearing of Exh. 37/Suit) Simultaneously the applicants also moved 2 other applications i.e., Exh. 49 and Exh. 50 on the same day. 2.9. The learned Court passed impugned ex parte order on 17.4.2008 below Exh. 47 (i.e. one of the 3 applications). As regards Exh. 49 and/or Exh. 50, suffice it to say that the said Exh. 49 is an application under Order 39 Rule 2(a) whereas by virtue of Exh. 50, the applicants have inter alia prayed for directions restraining the petitioners in continuing with the activity of construction. The SCA/6459/2008 9/36 JUDGMENT learned Court was pleased to pass order on the said applications Exh.49 & Exh. 50 directing issuance of notice. It is in connection with Exh. 47 that the learned Court passed the order giving impugned directions. 2.10. The impugned order dated 17.4.2008 which, for sake of convenience, is read by the petitioners in two parts, first directing issuance of notice qua the prayer for appointment of Commissioner and the second part restraining the petitioners from carrying on the masonary or construction work. It is only the second part which is under challenge in the present petition. 3. In view of the grievance made by the petitioners against the said Exh. 47, it is appropriate to reproduce herein the relief prayed for by the applicant by virtue of the said application. The relief clause reads thus:- “A. the Court Commissioner may kindly be appointed and he may kindly be ordered to carry out the local inspection of the entire suit property with a specific direction to cause and SCA/6459/2008 10/36 JUDGMENT carry out proper permanent marking i.e. visible signs/marks on/in respect of the various structures in the suit property and the Court Commissioner further be directed to carry out detailed inspection of the entire property and submit the written report of such local inspection that may be carried out by the Court Commissioner before the Honorable Court. B. any other relief that this Honorable Court may deem fit in the larger interest of truth, substantial justice and to uphold the dignity of civil procedure code and to preserve the honour of the August Judicial System and the faith of ordinary citizens, such order may kindly be passed in favor of the plaintiffs as against the defendants.” 4. I have extensively heard Senior Counsel for respective sides. 5. Mr. DD Vyas, Senior Advocate has appeared for the petitioners. He assailed the order dated 17.4.2008 on 5 diverse grounds, viz (1) that the application was hit by delay, latches and acquiescence and the Court has failed to assign or record reasons; (2) that the order under Order 39 SCA/6459/2008 11/36 JUDGMENT Rule 7 cannot be issued without notice and before passing the said order neither the copy of the applications were given to petitioners nor notice required under sub-rule 3 of Rule 8 was issued; (3) that Exh. 47 application does not contain any prayer for injunction and yet the Court has granted the relief which has not been prayed for; (4) that the Order 39 Rule 7 does not confer any authority under law to make order in the nature of injunction; (5) that the 2 rooms are not the subject matter of the suit and that therefore even otherwise it would not come within the purview of Order 39 Rule 7. Mr. Vyas relied upon the judgments reported in 2002 (1) GLH 326; AIR 1961 Kerala 290; 2008 (1) GLH 598; (2006) 3 SCC 312; and AIR 1979 A.P. 107. 6. Mr. SN Shelat, Senior Advocate has appeared for the respondents with Mr. Dave who appears on caveat. At the outset Mr. Shelat submitted that the claim of the petitioners that the two rooms in question are not the subject matter of suit is unjustified and erroneous. As regards the submission of Mr. Vyas with reference to the Court's jurisdiction to grant order in nature of injunction while considering application under Order 39 Rule 7, SCA/6459/2008 12/36 JUDGMENT Mr. Shelat submitted that the said provision confers on the Court wide powers including the power to make order in the nature of injunction, and that in present case the parties were otherwise also obliged to maintain status-quo in view of Purshis Ex.35 and the order passed thereon. Mr. Shelat also submitted that on 17.4.2008 the applicant had moved 3 applications and therefore it would be in fitness of things that the impugned order dated 17.4.2008 is read and considered in light of all the 3 applications. This submission is dealt with at this stage because it does not warrant further discussion since the Court has passed separate orders on all the 3 applications and specific and detailed order is passed on Exh. 47. The text expressly mentions and shows that the order is passed only below Exh. 47. Mr. Shelat pointed out that while passing the impugned directions the learned Court has passed an elaborate and reasoned order and the reasons recorded therein are sufficient and support the directions. Mr. Vyas has very fairly dropped the contention against the order on the ground of lack of reasons. Mr. Shelat has relied on the judgments reported in AIR 1996 Bombay 96, AIR 2001 AP 349 and AIR 1997 AP 15. SCA/6459/2008 13/36 JUDGMENT 7. During the submissions of the parties, it has come out that after the impugned order dated 17.4.2008 was passed, the petitioners herein have filed their reply to Exh. 47 application and the same is awaiting hearing on merits and the proceedings in connection with the said application are adjourned from time to time. The notice on Exh.47 was returnable on 19.4.2008. Thus, it could have been finally heard by now however petitioners appear to have preferred to prosecute this petition rather than proceeding with hearing of Exh. 47. Further, until now any steps for appointment of Commissioner does not appear to have been taken. 8. At this state, it is appropriate to note that Mr. Vyas has submitted that if the learned Court is directed to hear and decide the application within reasonable time then until the order is passed the petitioners would not proceed with the work. 9. So as to appreciate Mr. Vyas's contention based on ground of delay (in objecting the construction work), the application Exh. 37 is very SCA/6459/2008 14/36 JUDGMENT relevant. The petitioner claims that the Exh.47 and the order dtd. 17.4.2008 are hit by delay and latches. 9.1. It is pertinent that even as per Ex.37 the work was commenced around 27.11.2007 and the said Exh. 37 was filed on 24.1.2008 in connection with the said work Yet the applicants took 2 months to file the said Exh.37 wherein it is averred that the petitioners have broken the water tank and made changes and thereby committed breach of the pursis Exh. 35 and the order. On the other hand, in their reply to Exh. 37, the petitioners herein have put much stress on Para 11 wherein it is pointed out that some construction work, only in nature of repairs and renovation, in respect of the two rooms situate adjoining the garage was undertaken so as to arrest damage to the said rooms and was going on at the relevant time. 9.2. Thus, from the averments made in Exh. 37, it transpires that the factum of the masonary work was within applicant's knowledge since November 2007 and yet they approached the Court after 2 months in January 2008 and not immediately when the work SCA/6459/2008 15/36 JUDGMENT started, and at that stage also did not pray for preserving status quo or for stay against the work but waited till 17.4.2008 i.e., for almost 5 months since the construction work commenced before preferring Exh. 47. Further when the Exh. 47 came to be moved almost 85% work was over. 9.3. In backdrop of such fact the petitioners have made a serious grievance that the Exh.47 was and is hit by delay and latches and after the proceedings were adjourned to 19.4.2008 there was no earthly reason, much less legally sustainable justification either for the Court to receive an application (Exh. 47) from the applicant on 17.4.2008 and/or to take up the matter for hearing on 17.4.2008, much less to pass the impugned ex parte order. Apparently, the Exh. 47 application is delayed or belated action on part of applicants. Therefore there was no justification for passing an ex-parte order on the same day on which the application was moved. 9.4. Delay defeats equity. This is the underlying principle in the provision under sub-rule (3) of Rule 8 of Order 39. The abovesaid facts, events and circumstances demonstrate and establish SCA/6459/2008 16/36 JUDGMENT that the Exh.47 application and the impugned order are hit by delay and latches and the waiver of notice was not justified, in view of the facts. The order, therefore, is unsustainable. 9.5. Further, there was, in any case, no justification for not limiting the operation of the order only until returnable date. Though unfortunately but, in view of the facts, it is necessary to reiterate that by now it is a well- settled position that if any ex parte order/injunction is granted then it is always advisable, rather necessary, to limit its operation only until the returnable date of Notice and the returnable date also should be of short span. In present case, the learned Court, though made the notice returnable on 19.4.2008 allowed the operation of the order to continue till the disposal of application for Commissioner's report/panchnama. 10. Coming to the second contention of Mr. Vyas that under Rule 7 of Order 39 order cannot be passed without notice and that in present case the Court ought not have passed the impugned order without issuing notice to the petitioner, more particularly SCA/6459/2008 17/36 JUDGMENT when the petitioners had already entered appearance and were defending the proceedings and thus the order offends principles of natural justice. Carrying this submission further, Mr. Vyas also submitted that the provisions under Order 39 Rule 7 read with Rule 8 mandates issuance of notice and also contemplates that the Court should record reasons, (Mr. Vyas gave- up the contention regarding lack of reasons) but there is failure on both counts. He also submitted that it was also obligatory for the applicants to serve copy of the application to the petitioners before requesting the Court to pass order thereon. In his submission, the order is indisputably bad in law on this ground alone. 10.1. In support of his submission, Mr. Vyas relied upon the judgment reported in AIR 1995 Calcutta 369 in support of his aforesaid submission. However, on perusal of the said judgment, it becomes clear that in the order impugned before the Hon'ble Calcutta High Court, the learned trial Court had not recorded any reasons in support of the order and that is why the Hon'ble High Court observed that from the impugned order it was not possible to derive any iota of material from which reasons can be gathered. So SCA/6459/2008 18/36 JUDGMENT far as present case is concerned, that is not the case. The learned Court has recorded reasons while passing the impugned order. Therefore, the said judgment does not assist Mr. Vyas. 10.2. Mr. Vyas also relied upon the judgment of the Hon'ble Kerala High Court in the case of Kanaran Nambiar vs. Ramunni Nambiar and others, reported in AIR 1961 Kerala 290. In the said judgment, the Kerala High Court has held; “.......It is a wholesome practice observed in judicial proceedings that, when any application is made in a pending case in which other parties have entered appearance by counsel, notice of such application be given at least to the parties who have entered appearance in the case, by service of copies of the application on the counsel or by the issue of a formal notice through the process of court. It may be that an application may relate to a matter in which such other parties may not be interested; but the fact whether they are interested in the matter or not can be known only when they are intimated what the matter involved in the SCA/6459/2008 19/36 JUDGMENT application is. The practice of moving interlocutory applications without notice at least to the parties who have entered appearance in the case has therefore to be deprecated. It will cause much anxiety to the parties, and also tend to inconvenience and delay the disposal of the applications by the court.” (emphasis supplied). 10.3. The Rule 8 of Order 39 provides that an application for an order under Rule 6 or 7 can be made at any time during the proceedings and that order can be passed after notice to the other side. This would mean that any order under Rule 6 or 7 should not be passed without issuing notice to the opposite side. 10.4. However, sub-rule (3) of Rule 8 also provides an exception by virtue of which if the Court is satisfied that delay in issuing notice and awaiting its return would defeat the object of granting injunction then injunction may be granted even without first issuing notice to the opposite side. SCA/6459/2008 20/36 JUDGMENT 10.5. This position is clear from the exception provided in sub-rule (3) which reads “except where it appears that the object of making such order would be defeated by delay”. The use of word “appears” gives the power of exercising discretion to the Court, but ofcourse upon satisfaction of the Court. 10.6. The provision of sub-rule (3) of Rule 8 clearly lays down, that the Court is conferred with power to make, as an exception, ex parte order under Rule 7 but before making such ex-parte order the Court must satisfy itself about the circumstances that delay in granting any order under Rule 7 would defeat the object of making such an order and only upon such satisfaction, and only after recording reasons for such satisfaction an order can be passed. 10.7. Further, such reasons must be germane and legally as well as factually tenable and not extraneous. For waiver of Notice, the Court must, first, judiciously satisfy itself that sufficient reasons for waiving Notice exist and Court must also record the reasons for its satisfaction. 10.8. Thus, all three requirements viz. (1) SCA/6459/2008 21/36 JUDGMENT existence of reasons (2) Court's satisfaction and (3) recording of reasons, are sine qua non for waiving notice and passing ex parte order. 10.9. The reasons for waiving notice are to be independent and distinct from the reasons or justification for granting the order on the 3 well established norms. 10.10. Thus, on reading of Rule 8, particularly sub-rule (3) of Rule 8, it cannot be said that in no case an order under Rule 7 can be passed without first issuing notice to the opposite side. 10.11. To accept the said contention of Mr. Vyas, would be doing damage to the provision particularly the part “except where it appears that the object of making such order would be defeated by the delay” and the said part of the provision would be rendered otiose. 10.12. It would also amount to ignoring or removing the exception provided under sub-rule (3) which empowers the Court to pass order under Rule 6 or Rule 7 without notice in cases where it appears to SCA/6459/2008 22/36 JUDGMENT the Court that the object of making such order would be defeated. 10.13. Under the circumstances, it is not possible to accept such absolute proposition of Mr. Vyas. Hence, the said submission of Mr. Vyas fails and is not acceptable. 11. In this regard, Mr. Shelat has relied upon judgment reported in AIR 1975 Andhra Pradesh 15 wherein, while considering the provisions of Order 39 Rule 7, the Hon'ble Andhra Pradesh High Court has observed in para 13 as under; “13. As the word used in the provision is only an enabling word, it cannot signify any obligation on the part of the Court to