Ramanpal Singh, and Others. Vs. State of U.P. and Another.

[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. 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 writing......2001 (43 ) acc 1096]. wherein, it has been held that after receipt of final report, on the protest petition the magistrate has to follow any of the four courses;(i) he may accept the final report and may drop the proceedings.(ii) he may take cognizance under section 190 (1) (b) cr.p.c., if there is sufficient material in the case diary.(iii) he may order further investigation, if he satisfies that investigation was made in a perfunctory manner, or(iv) he may treat protest petition as a complaint case and precede to the act under section 200 and 202 cr.p.c. and thereafter decide whether complaint should be dismissed or process should be issued.4. a perusal of the record reveals that learned magistrate neither relied on the material available in case diary nor proceeded to take action under section 200 and 202 cr.p.c. but summoned the revisionists. the order does not indicate that on what the evidence the impugned order has been passed.5. the impugned order cannot sustained and is liable to be set aside.6. the revision is allowed. the impugned order dated 17.7.2010 summoning the revisionists is set aside and the learned magistrate is directed to pass a fresh order in the following manner; (i) if there is sufficient material in the case diary to proceed against the revisionists, learned magistrate shall pass an order accordingly under section 190 (i) (b) cr.p.c.(ii) if sufficient material is not present in the case diary, the learned magistrate may treat the protest petition as complaint and shall provide an opportunity to the complainant to adduce evidence under section 200 and 202 cr.p.c. and thereafter pass an appropriate order in accordance with law.this revision is disposed of accordingly.