Status quo without notice to respondent

This query is : Resolved 
 

(Querist)
01 April 2020




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Raj Kumar Makkad (Expert)
01 April 2020

The appellant if prima-facie satisfies the appellate court then generally impugned judgment stands stayed till the finalization of the appeal otherwise if impugned judgment meanwhile executed, the object of filing the appeal shall get frustrated.

There is no requirement of the notice to the respondent for that purpose.

Deeksha nayyer (Querist)
01 April 2020

@RajKumar sir .. neither we are selling the property nor we have made any agreement or deed with anyone.
Without any evidence given by appellant to alienate the property, court can put status quo without hearing respondents.

COURT DOES NOT DEMAND ANY EVIDENCE BY APPELLANT BEFORE GIVING STATUS QUO???????

Rajendra K Goyal (Expert)
01 April 2020

Yes court such relief can be prayed from the court even when the notice not issued. agree with the expert Raj Kumar Makkad ji.

Rajendra K Goyal (Expert)
01 April 2020

You should not be afraid of such order when you are not going to sell / alien / mortgage the property. This is legal prayer, whether accepted or not by the court.

Rajendra K Goyal (Expert)
01 April 2020

Gujarat Bottling Co. Ltd. vs. Coca Cola Company 1995(5) SCC 545.
3] It is well settled that for grant of temporary injucntion three factors have to be satisfied which are prima facie case, balance of convenience and irreparable loss.

In Dalpat Kumar V/s Pralhad Singh, AIR 1993 SC 276, Hon'ble Apex Court explained these three factors as follows:-
i] There is a serious disputed question to be tried in the court and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant.
ii] The Court's interference is necessary to protect the party from the species of injury. In other words irreparable injury or danger would ensue before the legal right would be established at trial and
iii] That the comparative hardship on mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to acted from granting it.

Raj Kumar Makkad (Expert)
01 April 2020

The judgments quoted by expert Goyal are under Order 39 Rule 1 & 2 read with section 151 of CPC which is moved before the trial court but here the question is stay of the impugned judgment granted by the appellate court of District Judge which falls under Order 41 Rule 5 of CPC which is entirely different than the situation cited in the given judgments.

Raj Kumar Makkad (Expert)
01 April 2020

There are plenty of the judgments on this point. Rather this is an established law.

Raj Kumar Makkad (Expert)
01 April 2020

If author is dissatisfied with the order staying the execution of the impugned judgment, he can obviously pray to decide the appeal on merits at the earliest. As the power to stay is discretionary, however, judicious, has little scope to get reversal from the same court and if you go to high court, it shall increase more time for its disposal. Better to insist for the final argument at the earliest and get the appeal decided.

Rajendra K Goyal (Expert)
01 April 2020

Agree that there are large no. of available ruling on status quo. However, if the author is dissatisfied with the status quo, if given by the court on the application submitted with the appeal and without hearing the Respondent, they can go for appeal. Generally, such stay is temporary, court would hear other side also before proceeding status quo till decision.

Raj Kumar Makkad (Expert)
01 April 2020

@Expert Goyal! I differ with your opinion that status quo issued by the appellate court against the impugned judgment remains temporary. First of all appellate court do not order status quo rather orders stay against the execution of the judgment under appeal and such stay order is not reversed on the appearance of the respondent except inmost exceptional circumstances. The respondent can pray early disposal of the appeal so that the appeal may be got dismissed and ultimately stay order may also go with the appeal. Kindly refer to section 96 of CPC.

Rajendra K Goyal (Expert)
02 April 2020

Sorry, correct myself, appellate court order for stay against execution of judgement.

Raj Kumar Makkad (Expert)
02 April 2020

Kindly refer to the following judgment:

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1374 of 2008


Union of India
....Appellant
Versus
Ibrahim Uddin & Anr.
....Respondents
decided on 17.07.2012

Rajendra K Goyal (Expert)
02 April 2020

Apex Court In Civil Appeal No. 9346 of 2019 and 9347 of 2019 Ambalal Sarabhai Enterprises Vs. KS Infraspace LLP Ltd. and others have relied following cases:

16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719, observing as follows :
“5…Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to
the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”




Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545,
observing as follows :
“47….Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other
considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was
seeking relief. His conduct should be fair and honest….”

T. Kalaiselvan, Advocate (Expert)
02 April 2020

Yes the court can grant exparte status quo order in the appeal in the first hearing itself without hearing the respondent.
Probably the appellant has taken the advantage of the present crisis where the postal department is also locked down.

T. Kalaiselvan, Advocate (Expert)
02 April 2020

The question is not about whether you are trying to sell or alienate the property.

The question is that the appellant is aggrieved by the judgment delivered by lower /trial court.
Hence he approached the appellate court with an appeal to get his grievances redressed.
In the meantime he anticipates tht his purpose will be defeated if there is no stay or status quo order, which will enable the decree holder to execute the decree in his favor.
The appellate court cannot know what is in your mind or your proposal, hence after getting convinced by the arguments put forth by the appellant, the court passed the status quo order.
Therefore there is no question of appreciating evidence at this preliminary stage of appeal to grant status quo order

T. Kalaiselvan, Advocate (Expert)
02 April 2020

In Archcon And Ors. vs Sewda Const. Co. And Ors. on 29 June, 2004 before high court of Gujarat,
The court observed that
7. Meanwhile, the respondents moved the Court of learned District Judge, Kamrup, Guwahati through Misc. (Arb) case no. 288/04 by preferring an application under Section 9 of the Act for interim measure of protection against the termination order dated 26.5.2004 and the court by order dated 29.5.2004, while issuing notice to the petitioners, fixed the matter on 2.6.2004 for filing objection and hearing and granted ex-parte interim relief to the respondents directing to maintain the status quo as on that day. Thereafter, the respondents filed objection for vacation or correction of the said status quo order passed on 29.5.2004 stating that despite the caveat being filed by them in the related case, they had not been heard. The said application was heard on 2.6.2004 fixing 15.6.2004 for passing necessary orders extending the status quo order till the disposal of the said application. Though, the case was fixed for orders on 15.6.2004, the learned District Judge on 8.6.2004, in entertaining an application filed by the respondents praying for specific direction to maintain the ex-parte status quo order passed on 2.6.2004 restraining the petitioners from performing any construction works over the disputed site, after hearing the learned counsel of both the parties, granted interim relief to the respondents under Section 9 of the Act by restraining the petitioners not to resort to any construction at the disputed site. Hence, this order dated 8.6.2004 has been placed on the anvil of judicial scrutiny.

8. On close scrutiny of the impugned order including the materials available on record as well as having given anxious consideration to the extensive submissions advanced by the learned counsel representing the respective parties, it is seen that the contract for the construction work in question was terminated by the petitioners on 26.5.2004 and possession of the disputed site has also been taken over on 29.5.2004 before passing of the ex-parte status quo order dated 29.5.2004. Thereafter, when the petitioner prayed for cancellation/modification of the said ex-parte status quo order, the arguments on behalf of the parties were heard on 2.6.2004 fixing 15.6.2004 for passing necessary orders. Instead of passing any order on 15.6.2004, the learned District Judge, on being confronted by an application presented by the respondents praying for giving direction to restrain the petitioners from making any construction work in the disputed site, passed the impugned order on 8.6.2004 granting the interim relief as has been noticed herein above.


13. More importantly, in granting such injunction under Section 9, the three golden principles under Law of Injunction i.e. (1) Prima-facie case, (b) Balance of convenience and (3) Irreparable loss and injury, have to be followed. In the instant case, the petitioners engaged respondents for construction of Multi-Storied Building i.e. Ground + 5 Storied RCC building having 24 Nos. of three bed room flats and 16 Nos. of two bed room flats, as shown in the plan of the building for housing the intending flat purchasers but due to the respondents' very poor quality of work and sub-standard materials used in such construction, the said contract was terminated in terms of Clause 18 of the agreement on 26.5.2004 and possession was taken over on 29.5.2004. Since the building construction of such nature has been carried out for the benefit of intending flat purchasers from whom finance has been drawn with assurance of the completion of the construction work within a time frame, the balance of convenience tilts in favour of the petitioners. Moreso, by the impugned injunction order, passed in favour of the respondents, has further delayed the construction work to the prejudice of the interest of the intending flat purchasers for which the petitioners would suffer irreparable loss and injury. In view of such factual scenario, it can be safely held that no prima-facie case has been made out by the respondents for granting such injunction. Given facts and circumstances of the case, a building contract cannot be enforced by granting interim relief under Section 9 of the Act.

13. In view of what has been discussed and observed, as indicated above, this court is of the view that this impugned order deserves interference and accordingly, the same stands quashed and set aside.

Raj Kumar Makkad (Expert)
02 April 2020

Respected T. Kaliselvan and Rajender Goyal both experts! With due respect, I want to point out that the cases you both cited above are not applicable to the facts of the present case. You both have copied and pasted the judgments wherein the cases were pending before the trial court wherein application under order 39 Rule 1 & 2 was moved seeking injunction. As all 3 ingredients are required to co-exist viz-prima-facie case, balance of convenience and irreparable loss hence the courts decided that application in the cited cases but the matter under discussion is entirely different. This is matter of appeal.

Dr J C Vashista (Expert)
03 April 2020

I concur expert advise of Mr. Raj Kumar Makkad ji. The concept of 3 ingredients qua grant of temporary injunction are applicable at Trail stage under the provisions of Order XXXIX Rules 1 & 2 CPC..
Generally appellate court allow / stay execution of order/ judgment/ decree passed by lower court in the first instance (if applied), even without service of notice of appeal to the respondent.



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