P L D 1970 Azad J & K 15 (PLP)

The Courts can issue injunctions under rule 1 and rule

2. Rules 3 and 4 are reproduced below :‑ "(3) 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. (4) 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." Rule 4 does not necessarily cover cases where defendant in obedience to a notice issued by the Court, appears to show cause against it. It is one which is available till the final disposal of the suit. If the injunction is subsequently varied, any party adversely affected may go in appeal and if it is discharged or set aside, the plaintiff has a right of appeal. Again, if an ad interim injunction issued without notice under rule 3 is discharged after cause is shown, the plaintiff can go in appeal but if after notice such an injunction is confirmed, it cannot, it appears to me, be covered by rule

4. It was held in A I R 1940 Nag. 45 by Stone, C. J. and Vivian Bose, J. that refusal to vacate an injunction granted without notice was appealable under rule

4. The learned Judges have given no reasons, whatsoever, for holding this view. With utmost respect for them. I find myself unable to fall in line with their opinion. Rule 4 contemplates only three types of orders. It may be said that the Court may in an application moved under this rule decline to interfere with the order of injunction and it would yet be an order under this rule and hence appealable. But by refusing to vacate an order it has already passed under rule 1 or rule 2, the Court does not pass any fresh adverse order against the defendant. It only says that an interim order already in existence was correctly passed or did not require to be set aside. It was held in A R 1929 Mad. 803:‑ "We are clear that rule 4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side had an opportunity of being heard and no grounds other than those available at the original hearing appear or are urged When, therefore, a; arty by his own fault neglected to put his case forward at the original hearing, he cannot come forward under rule 4 later anti plead that he has a legal right under that rule to have t lie case reopened and reheard. Rule 4 cannot be read so as to allow a party to let the time for appeal slip by or to wait until his appeal has been dismissed and then to reopen his original case. We are satisfied that rule 4 is not intended to set at naught the ‑ordinary rule cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties and cannot be re‑opened except on the presentation of some new matter not available when the original order was passed." The reasoning of Mr. Shabir Ahmed, J. was that where the appellant had been heard before issue of injunction and did not go in appeal but instead chose to make an application under rule 4, he was precluded from going in appeal against an adverse order passed under rule

4. It was so because in his view practically two appeals could not be allowed against the same order by resorting to the simple device of filing an application under rule 4 after the time provided for appeal against the order of rejection of such an application had expired. He said: --‑ "I have no doubt in my mind that the Legislature could not have intended that a party which had not availed of the remedy provided by Order XLIII, rule 1 (r) of the Cede of Civil Procedure within the time prescribed by the law of limitation by appealing against the original order could set the law of limitation at naught by the simple device of putting in a futile application under Order XXXIX, rule 4 and on its dismissal, by seeking to appeal against the order of dismissal of that application." The learned Judge here perhaps seems to differentiate between cases where an application is made under this rule after the injunction was issued after hearing the parties and those where it is made in cases where injunction was issued without notice. But if once it is accented in principle that an order under rule 4 refusing to vary, discharge or set aside an injunction is appealable, then to import the intention of the Legislature to differentiate between classes of cases and place a bar on one category while giving green light to another category on the basis of such intention is a rather difficult argument which on good principles does look discriminatory. The learned Judge was perhaps also conscious of this aspect and that is why he also said :‑ .Order XXXIX, rule 4 of the Code of Civil Procedure contemplates a discharge, variation or setting aside of an injunction already issued and the remedy mentioned in order XLIII, rule 1 (r) of the Code of Civil Procedure cannot be availed of if the application under Order XXXIX, rule 4 has been dismissed." Order XLII1, rule 1 (r) makes orders under rules 1, 2, 4 and 10 appealable. Thus :‑ (1) It does not make an order under rule 3, granting an injunction before notice, appealable. It does not do so because such an order would be one passed under rule 1 or 2. (2) Orders under rule 4 would mean orders contemplated by this rule i.e. discharge, vary or set aside an order of injunction. Therefore, an order rejecting an application would not be an order under rule 4 so as to attract the provisions of Order XLIII, rule 1 (r). It makes sense in that it would not have been proper to provide multiple opportunities of appeals against the same view of the trial Court. It would have resulted in procrastination of proceedings and even an abuse of the r process of the Court. In my opinion, therefore, rules 1 and 3 or rules 2 and 3 are to be read together. Rule 1 provides that an injunction may be issued by the Court. Rule 3 provides that except in cases of emergencies it shall not be issued without a notice to the opposite‑party which in fact means, without hearing their objections. Thus it is mandatory for the Courts to decide the application for injunction after hearing the party to be adversely affected by it. The exception made in rule 3 does not dispense with this mandatory requirement but only provides a remedy during the interval between the filing of the application for injunction and the appearance of the opposite-- party. That is why normally the injunction is accompanied by a show‑cause notice to the adverse party either to file objections against the application for injunction or show, cause against the continuance of the said injunction. Therefore, any order of finality or confirmation or extension passed by the Court after hearing the opposite party is not one under rule 4 but one under 1 or 2 as the case may be. Even the language of rule 4 seems to support this reasoning. It speaks of an application being made by any party dissatisfied with such order. The A application contemplated by the rule cannot be the written objections filed by him in obedience to an order of the Court. Even apart from rule 3 any party against whom a Court passes any adverse order has an inherent right of being heard and this right is inherent in rules 1 and 2 and exists independently of rule

4. Rule 4 appears to have been enacted to empower the Court with wide powers of review if the circumstances so require. In this case an ad interim injunction as the order calls it, was passed on 17‑6‑1968 which reads "Therefore stay order is issued to the effect that the plaintiffs shall not be dispossessed till further orders and if the defendant has any objection against the confirmation of this order, he may present his objection on the next date." The objections filed by the Government and the order subsequently passed by the District Judge under appeal was not, therefore, passed under rule 4 but under rule 1 read with e rule 3 and is therefore appealable under rule 1, Order XXXIX read with Order XLIII, rule 1 (r). I, therefore, overrule the preliminary objection. The learned counsel for the appellant urged that under section 9 of the Azad Jammu & Kashmir grant of Khalsa Waste Lands Act jurisdiction of the civil Courts has been taken away and that no injunction could be issued by them. The Act. was framed in 1966 but only sections 7 and 9 were enforced. I have given my earnest consideration to section 9 which the learned counsel invoked to support his contention. The District Judge has left the matter undecided. He has stated that since the question of jurisdiction was to be the subject of an issue, he would not like to prejudge it. Under section 9 no civil Court can issue an injunction but only in respect of matters of which such Courts cannot, under the Act take cognizance. There would be no quarrel with the proposition that civil Courts are supposed to possess jurisdiction over all matters of civil nature. An Act which ousts such jurisdiction has to be strictly construed. When the Government, through an Act seeks to oust such jurisdiction for its own benefit and to the detriment of the people, I have no doubt that the Courts would require such ouster to be unmistakable and beyond any doubt whatsoever. The plaintiffs are seeking recognition of certain rights under a Proclamation known as 38‑C of 1944, which at one time were granted to them by the Financial Commissioner. Is a suit to enforce such rights barred by section 9 of the Khalsa Lands Act? I have studied the question to some extent but I think judicial discretion demands that in view of the question not having been decided by the District Judge one way or the other, I should refrain from deciding the same. It is the normal practice that the question of jurisdiction should first be decided by the trial Court. The Government as defendant would be within its legal rights to demand that this question should be treated as a preliminary issue and decided first. Nothing was urged about facts but to satisfy myself I went through the plaint and the documents attached with it. The plaintiffs are admittedly in possession of the lard. Some of their houses are also in this land. The balance of convenience is certainly on their side. I, therefore, see no., force in this appeal, which is hereby dismissed. S. A. H. Appeal dismissed.