128 IN THE HIGH COURT OF PUNJAB AND HARYANA AT Gurmail Singh vs Gurjeet Singh and others CORAM: HON’BLE MR. JUSTICE VIKAS SURI Present: Mr. VIKAS SURI, J. (Oral) 1. This is a petition under Article 227 of the Constitution of India for setting aside the order dated 06.05.2025 (Annexure learned Civil Judge (Junior Division), Nabha, District Patiala, whereby on an application under Order 39 Rules 1 and 2 read with Section 151 CPC, an ex parte ad interim stay has be 2. Learned counsel for the petitioner submi was issued for 21.05.2025 and on the said date, defendant No.1 entered appearance through written statement and reply to the said application also stands filed on behalf of defendant No. 1 on 23.05.2025. He would refer to the 39 Rule 3A CPC decided within a period of 30 days. 3. On a submits that till date no appeal has been preferred before the Appellate Court. He would further CPC is still pending, the impugned order, even in the given circumstances having been passed more than IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Gurmail Singh vs Gurjeet Singh and others HON’BLE MR. JUSTICE VIKAS SURI Mr. Sukhwinder Singh Kamboj, Advocate for the petitioner -.- VIKAS SURI, J. (Oral) This is a petition under Article 227 of the Constitution of India r setting aside the order dated 06.05.2025 (Annexure learned Civil Judge (Junior Division), Nabha, District Patiala, whereby on an application under Order 39 Rules 1 and 2 read with Section 151 CPC, an ex parte ad interim stay has been granted. Learned counsel for the petitioner submi was issued for 21.05.2025 and on the said date, defendant No.1 entered appearance through his counsel. It is further submitted that the written statement and reply to the said application also stands filed on behalf f defendant No. 1 on 23.05.2025. He would refer to the CPC, to contend that the said injunction decided within a period of 30 days. On a query of the Court, learned counsel for the petitioner s that till date no appeal has been preferred before the Appellate Court. He would further submit that as the application under Order 39 Rules 1 and 2 CPC is still pending, the impugned order, even in the given circumstances passed more than 30 days back, would IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-5011-2025 Date of decision: 31.07.2025 ……Petitioner ….Respondents HON’BLE MR. JUSTICE VIKAS SURI Advocate for the petitioner This is a petition under Article 227 of the Constitution of India r setting aside the order dated 06.05.2025 (Annexure P-5) passed by the learned Civil Judge (Junior Division), Nabha, District Patiala, whereby on an application under Order 39 Rules 1 and 2 read with Section 151 CPC, an ex Learned counsel for the petitioner submits that notice of the suit was issued for 21.05.2025 and on the said date, defendant No.1-petitioner counsel. It is further submitted that the written statement and reply to the said application also stands filed on behalf f defendant No. 1 on 23.05.2025. He would refer to the provisions of Order injunction application was to be of the Court, learned counsel for the petitioner s that till date no appeal has been preferred before the Appellate Court. that as the application under Order 39 Rules 1 and 2 CPC is still pending, the impugned order, even in the given circumstances , would not be appealable. The This is a petition under Article 227 of the Constitution of India 5) passed by the learned Civil Judge (Junior Division), Nabha, District Patiala, whereby on an application under Order 39 Rules 1 and 2 read with Section 151 CPC, an ex ts that notice of the suit petitioner counsel. It is further submitted that the written statement and reply to the said application also stands filed on behalf Order application was to be of the Court, learned counsel for the petitioner s that till date no appeal has been preferred before the Appellate Court. that as the application under Order 39 Rules 1 and 2 CPC is still pending, the impugned order, even in the given circumstances MOHAN LAL BIMBRA 2025.08.02 09:40 I attest to the accuracy and integrity of this document aforesaid proposition is no longer A. Venkatasubbia held that in case where the mandate of Order 39 Rule 3 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 i “16. have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 17. should be restricted by the Court to thirty days at the first instance, but the Court should p the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less. 18. on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3 19. party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of -2- said proposition is no longer res integra. A. Venkatasubbiah Naidu vs S.Chellappan and others, (2000) 7 SCC 695 that in case where the mandate of Order 39 Rule 3 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. The relevant discussion read “16. Learned Single Judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 3-A of the Code which reads thus: “3-A. Where an injunction has been granted without giving notice to the opposite- endeavour to finally dispose of the application within thirty days from the date on which the injunction where it is unable so to do, it shall record its reasons for such inability”. 17. The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less. 18. Nonetheless, we have to consider th on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3-A. 19. The aforesaid Rule casts a three party against whom the ex parte injunction order was passed. First s the legal obligation that the Court shall make an endeavour to finally dispose of the application of . The Hon’ble Supreme Court in vs S.Chellappan and others, (2000) 7 SCC 695, that in case where the mandate of Order 39 Rule 3-A CPC 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 n force. The relevant discussion reads as thus:- Learned Single Judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order A of the Code which reads thus:- A. Where an injunction has been granted without -party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, ass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First s the legal obligation that the Court shall make an endeavour to injunction within the period of Hon’ble Supreme Court in , A CPC 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 thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose the aforesaid time the Court has to record the reasons thereof in writing. 20. courses? We have to bear in mind that in such a case the Court would have by legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the ord exceptional contingency that the Court is empowered to by said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here Court can by mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the C order should necessarily be the sole sufferer. 21. forced to suffer for the inaction of the court or its omissions to act according to t 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. the appe application for grant or vacation of temporary injunction 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. 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 -3- thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose the aforesaid time the Court has to record the reasons thereof in writing. 20. What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three p legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. 21. 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. the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction 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, thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him er. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of also it is only in very exceptional cases that the pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed ourt it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. 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 he 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 llate or revisional court during the 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 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 nction, 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 3 court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his vacate the ex 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 i 22. should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the co principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned s judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High chosen to entertain the revision petition”. 4. In Venkatasubbiah with liberty to the petitioner to avail his alternative remedy, in accordance with law. July 31, 2025 mohan bimbra Whether speaking/reasons: Whether reportable -4- 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 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. 22. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned s judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High chosen to entertain the revision petition”. In the light of the law laid down by the Apex Court in Venkatasubbiah Naidu’s case (supra), the present petition is disposed of with liberty to the petitioner to avail his alternative remedy, in accordance Whether speaking/reasons: Yes/No Whether reportable : Yes/No 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 In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making ACRs. Failure to decide the application or 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 Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the nstitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition”. the light of the law laid down by the Apex Court in A. the present petition is disposed of with liberty to the petitioner to avail his alternative remedy, in accordance (VIKAS SURI) JUDGE