Sushil Kumar and ors. Vs. State of Uttar Pradesh (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......learned aga for the state. with the consent of learned counsel for the parties, this application under section 482 cr.p.c. is being disposed of without calling for any counter affidavit and without issuing any notice to the opposite party. from the facts stated in the affidavit filed along with this application, it transpires that on the basis of the first information report lodged by smt. meera devi, opposite party no. 2 at p.s. kotwali, district jhansi a case crime no. 37 of 2003 under sections 498-a, 323, 504, 506 ipc & d.p. 2. act was registered and charge sheet was submitted against all the applicants by the investigating officer without making any investigation and without recording the statements of either the complainant or other witness under section 161 cr.p.c. whereupon learned judicial magistrate, jhansi by his order dated 1.10.2008 directed further investigation. after passing of the aforesaid order, an application was moved by opposite party no. 2 before the judicial magistrate, court no. 9, jhansi on 5.5.2010 stating therein that the court instead of directing further investigation may record her statement and proceed further in the matter.3. the court below taking note of the aforesaid application took cognizance of the offence by order dated 4.8.2003. the instant application has been filed by the applicants with a prayer to quash the charge sheet dated 4.8.2003 submitted in case crime no. 985 of 2010 (state v. sushil kumar & ors) as well as the cognizance order dated 4.8.2003. learned counsel for the applicants submitted that there being no material before the court below, cognizance could not have been taken as such the court below has committed a manifest error of law in taking cognizance only on the basis of the application dated 5.5.2010. 4. he further submitted that proper investigation be conducted and statements of witnesses be recorded and then if warranted cognizance be taken.. per contra learned aga made submissions in support of the.....