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AND OTHERS‑Opposite‑Parties

Civil Revision No. 601 of 1964, decided on 11th August 1965.

Civil Procedure Code (V of 1908), O. XXXIX, r. 3, proviso--- Ad interim injunction‑Court competent to grant without notice to opposite party.

Dr. Ahad Ali Khan v. Enayetullah Mandal P L D 1964 Dacca 624 held not correctly decided.

Mvi. Abul Mozaffar v. Sasanka Shekhar Gupta Civil Revision Case No. 335 of 1965 (unreported) ref.

Nasiruddin Choudhury for Petitioner.

T. H. Khan Assistant Government Pleader for the Opposite -Party No. 1.

This revisional application raises a simple point. Plaintiff had taken settlement of a portion of a Cattle Market from the Province of East Pakistan as represented by the Deputy Commis sioner of Sylhet. His grievance was that the opposite‑party was illegally interfering with his possession. He, therefore, instituted a suit for permanent injunction restraining defendants from affecting a settlement upon division of the cattle market. While the suit was pending he obtained an ad interim injunction on 20‑4‑64. The said ad interim order of injunction was subse quently made absolute, i.e., the ad interim injunction was to continue pending the disposal of the suit.

On appeal by defendants the said ad interim injunction was vacated by a Subordinate Judge of Sylhet, who heard the appeal. Thereupon petitioner obtained the present Rule.

At the hearing of the Rule it was pointed out to me that the learned Subordinate Judge had allowed the appeal‑solely upon the ground that the learned Munsif had no jurisdiction to pass an ad interim order. The Appellate Court below has given no reason for coming to such a decision except a reference to a decision of this Court in the case of Dr. Ahad Ali Khan v. Enayetullah Mandal (P L D 1964 Dacca 624). In that case it was held that the Court had no jurisdiction to pass such an ad interim injunction under the provisions of Order XXXIX, rule 3 of the Code of Civil Procedure as amended by Ordinance IX of 1961. The amended provisions of Order XXXIX, rule 3, of the said Code read as follows:

"3. The Court shall in all cases, before granting an injunc tion, direct notice of the application for the same to be given to the opposite‑party:

Provided that, except, in the case of sale of goods for default in payment, at the stipulated time, of a debt in respect of which the goods were pledged with any bank, the Court, may where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice."

It seems that the aforesaid decision (P L D 1964 Dacca 624) ignores the proviso to Order XXXIX, rule 3, of the Code. It is patent that the proviso clearly empowers the Court to dispense with notice upon defendants if it is of opinion that the object of granting injunction would be defeated by reason of delay in serving notice upon defendants. It would not be correct to say that the ad interim order passed by the learned Munsif was wholly without jurisdiction. It is true that it was initially made without notice to the defendants, but it cannot, however, be held that the Court had no jurisdiction to pass an ad interim order of injunction without such notice.

The view that I have taken on this question is supported by a decision of the Division Bench of this Court in the case of Mvi. Abul Mozajfar v. Sasanka Shekhar Gupta Civil Revision ‑Case No. 335 of 1965, disposed of on 2‑7‑65. On this ground I would have made the Rule absolute and set aside the order passed by the Appellate Court below in allowing the aforesaid appeal.

My attention was, however, drawn by Mr. T. H. Khan, to the fact that the plaintiff himself in his plaint has stated that the lease obtained by him was for a particular period. The period has now expired and the cattle market has been leased out to some body else. In this view of the matter it will serve no useful purpose to pass any other order by this Court.

The Rule is, accordingly, disposed of in terms of the decision given above without any order as to costs.

K. B. A. Order accordingly.

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