TaxTMI 
TaxTMI 
2014 (8) TMI 1184
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....operations of the mining machinery deployed in the schedule property pending adjudication of the disputes between the petitioner and the respondent. b) Grant an order of permanent injunction restraining the respondent, its agents workmen or any person acting through or on behalf from bringing in / hiring any new machinery deployed in the schedule property pending adjudication of the disputes between the petitioner and the respondent. c) And granting such other relief as this Hon'ble court be pleased to grant while allowing this petition with costs." The aforesaid prayers were sought in respect of the scheduled land which is measuring 472.32 acres in Survey Number 311 of Hiranandani village, Bellary taluk, Bellary district of which Mining Lease bearing M.L. No.2293 has been granted by the State of Karnataka in favor of petitioner herein. 2. Along with the main application filed under Section 9 of the Act, I.A. No.2 application invoking Order XXXIX Rule 1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure, 1908 (here in after referred to as 'C.P.C.' for short) was filed. The prayer made in said application is as under - "For the reason....
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.... contended that in view of the judgments of the Hon'ble Supreme Court the writ petition is not maintainable and that the petitioner ought to be relegated to the appellate remedy if not directing the petitioner to filing an application under Order XXXIX Rule 4 of C.P.C. He contended that in the order dated 11.07.2014 reference has been made to another decision of this Court in B. Jayaramaiah v/s. Smt. Gowramma in W.P.No.17573/2013 disposed on 22.04.2013 in which case writ petition was entertained based on the peculiar facts of that case. In fact W. P. No.16118/2013 as well as W.P. No.15458/2013 were also entertained having regard to the nature of orders passed by trial Court in those cases and those orders are distinguishable from the present case and hence this writ petition ought to be rejected on the ground of maintainability. In this context, learned Senior counsel stated that the impugned order is an appealable order under Order XLIII Rule 1 (r) of C.P.C. Therefore, petitioner ought to have availed the appellate remedy and not filed a writ petition invoking Article 226 read with Article 227 of the Constitution. In this regard, learned Senior Counsel referred to decisions of the....
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....1) KCCR SN -46, 2) in case of Pankaj Mohan Associates, Delhi and Others - Appellants Versus South Western Railway, Hubli and Another -Respondents reported in 2011 (1) KCCR 768 and 3) in case of M/s. Arvind Construction Co. Pvt. Ltd. Vs. M/s. Kalinga Mining Corporation and Ors. reported in AIR 2007 Supreme Court 2144. Perused the documents produced herein and at this stage, I find that, petitioner has made out a prima facie case for grant of order on I.A. No. II in his favour. Accordingly, I proceed to pass the following : I.A. No. I is allowed. I.A. No. II is also allowed exparte. Both parties are directed to maintain status-quo in respect of agreement dated11.12.2012 entered into between petitioner and respondent produced at Annexure-A at Sl. No.1 with this petition under list. Sri D.M.N., advocate submits to return the original agreement dated 11.12.2012 to him, on the ground that, same is required to the petitioner for other proceedings and at this stage, it is ordered to return the original on being produced of its certified copy. Issue notice of this petition together with status-quo and notice of I.A. No. II to the respond....
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.... he resorts to a constitutional remedy. It also considered the submission of learned counsel for respondents that even if there has been any violation of Order XXXIX Rule 3 of C.P.C. an appeal ought to have been filed. Those observations have been made by Hon'ble Supreme Court in light of dispute in that case. There the question was whether the expert order of temporary injunction could have been granted beyond30 days. The Madras High Court had interfered with such an order and had set it aside by directing trial Court to reconsider the matter. It is under those circumstances that the Hon'ble Supreme Court has observed as above. 12.In fact in Surya Dev Rai vs. Ram Chander Rai and Others [(2003) 6 SCC 675] while dealing with the exercise of certiorari jurisdiction under Articles 226and 227 of the Constitution of India by the High Court the Hon'ble Supreme Court at para 38 has stated asunder - "38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as here under:- (1) Amendment by Act 46 of 1999 with effect from 01.07.2002 in Section 115 of the Code of Civil Procedu....
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....e exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining appetition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or ....
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....e this Court ought to exercise its jurisdiction under Article 227 of the Constitution. The reasons for entertaining the writ petition would become clear when the impugned order is considered on merits. 15.In order to do so Order XXXIX Rule 3 of C.P.C. which reads as under must be considered at the outset: "3. Before granting injunction, court to direct notice to opposite party.- The courts hall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party : Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant, - (a) to deliver to the opposite party, or to send to him by registered post, immediately after the Order granting the injunction has been made, a copy of the application for injunction together with, - (i) a copy of the affidavit filed in support of the applicatio....
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....has not even stated the reasons as to why a prima facie case had been made out by the respondent herein. There is also no consideration of balance of convenience between the parties and as to whether the respondent before trial Court would suffer any irreparable loss, in case of any refusal of an expert injunction. It looks as if the impugned order has been passed mechanically and without application of mind. In that view of the matter, the order has to be quashed on that short ground alone as there is non-compliance of Rule 3 of Order XXXIX of C.P.C. 18. In fact on a reading of the impugned order itis noted that in the absence of there being any reasons assigned for dispensation of notice to the respondent before the trial Court coupled with a fact that no reasons have been assigned as to how the applicant before the trial Court had made out a prima facie case there is in effect and substance, violation of the principles of natural justice. Had the petitioner herein who is the respondent before the trial Court known the reasons as to why there was dispensation of notice to it and as to what the grave situation was that the matter required an expert order then possibly petitione....