Virendra Pandey and ors. Vs. State of U.P. and anr.

[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......the present prosecution has been instituted with a malafide intention for the purposes of harassment. he pointed out certain documents and statements in support of his contention. 4. from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. all the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this court under section 482 cr.p.c. at this stage only prima facie case is to be seen in the light of the law laid down by supreme court in cases of r.p. kapur v. state of punjab, a.i.r. 1960 s.c. 866, state of haryana v. bhajan lal, 1992 scc (cr.) 426, state of bihar v. p.p.sharma, 1992 scc (cr.) 192 and lastly zandu pharmaceutical works ltd. v. mohd. saraful haq and another (para-10) 2005 scc (cr.) 283. 5. the disputed defence of the accused cannot be considered at this stage. moreover, the applicants have got right of discharge under sections 239, 227/228 or 245(2) cr.p.c. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court. 6. the prayer for quashing the proceedings of complaint case, is hereby refused. however, it is directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this court in the case of amrawati and another v. state of u.p. reported in 2004 (57) alr 290 as well as judgement passed by hon'ble apex court reported in 2009 (3) adj 322 (sc) lal kamlendra pratap singh v. state of u.p. for a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. 7. however in case the applicants do not appear before the court below.....