1. Notice was issued to the 1st respondent/plaintiff through special messenger. The special messenger has submitted a report that as per order, notice was attempted to be served on the 1st respondent. But, when he was contacted over telephone, it was directed that notice be served at his residence. The special messenger thereupon went to the residence of the 1st respondent. There, when his mother was contacted and requested to receive the notice she, after contacting the 1st respondent over telephone refused to accept the notice. Since notice was attempted to be served on the mother staying with the 1st respondent and that was refused, there is sufficient service on the 1st respondent. Respondents 2 and 3 appear through Standing Counsel.
2. Petitioner is a third party to the proceeding before learned Principal Sub Judge,Thalassery and has challenged Ext.P3, order dated 26.03.2013 on I.A. No. 925 of 2013 in O.S. No. 329 of 2012.
3. First respondent filed that suit against respondents 2 and 3 for a decree for prohibitory injunction and to restrain respondents 2 and 3 from allotting construction of the university building to anybody else. According to the 1st respondent, he being the highest bidder, his bid should have been accepted. But, without accepting that bid, respondents 2 and 3 attempted to allot the work to the petitioner, who according to the 1st respondent is the 2nd lowest tenderer and does not possess the required qualification.
4. 1st respondent filed I.A. No. 2974 of 2012 for an order of temporary injunction in the above line. Learned Principal Sub Sub Judge, Thalassery, as the learned counsel submitted granted ex parte, ad interim order of injunction against respondents 2 and 3 as above stated. Later, purportedly, to enforce the said order of injunction, the 1st respondent filed I.A No. 925 of 2013 requesting that construction of building may be stopped with the assistance of the SHO, Kannur. That application was allowed by Ext.P3, order.
5. Learned counsel for petitioner contends that notwithstanding that 1st respondent was aware that the construction work is going to be allotted to the petitioner, he was not made a party in the suit, in the application for injunction or even in I.A. No. 925 of 2013. Learned counsel submits that petitioner has already started construction of the building. It is submitted that the work was handed over to the petitioner (by the respondents 2 and 3) on 29.05.2012 and as directed by the respondents 2 and 3 as per Ext.R2, notice, petitioner has executed Ext.P1, agreement in favour of respondents 2 and 3 on 08.10.2012. It is also submitted that learned Sub Judge passed the ex parte, ad interim order of injunction on 08.10.2012. Since Ext.P3, order affects the interest of petitioner who is not a party to the proceeding, that order cannot be sustained and it is liable to be questioned and interfered with under Article 227 of the Constitution of India, it is argued.
6. Learned Standing Counsel for respondents 2 and 3 contends that the order of injunction against respondents 2 and 3 is not legal and proper. It is also submitted that the work is already allotted to the petitioner.
7. I am not, in this proceeding on the question whether learned Sub Judge is justified in granting an ex parte, interim order of injunction. I am at the question whether Ext.P3, order could have been passed to affect the interest of petitioner who is not a party to the proceeding.
8. A reading of Ext.P3, order would show that even in the plaint and the application for temporary injunction the 1st respondent has stated that respondents 2 and 3 are attempting to entrust the work to the petitioner. Still petitioner was not made a party in the suit or application for injunction or, even in I.A. No.925 of 2013 on which Ext.P3, order is passed. The documents produced by petitioner and respondents 2 and 3 prima facie support the contention petitioner has raised about his starting construction of the building.
9. It is held time and again that no order of injunction could be passed to affect a person who is not a party to the proceeding. In L.D. Meston School Society v. Kashi Nath (AIR (38) 1951 Alahabad 558) it is held that where a person against whom the order of injunction is to operate who is not made a party, injunction cannot be issued. In Balakrishnan Nair v. Mohammed Kunju - 1964 KLT 12, it is held that the court ought not to issue an order or injunction against one, who is not a party to the proceeding before it.
10. Ext.P3, order directs the SHO, Kannur to give necessary police aid to stop construction work (being carried onby the petitioner). Needless to say that Ext.P3, order affects interest of petitioner who was not given notice of any of the proceedings before the learned Sub Judge.
11. May be that petitioner could have challenged the order of injunction by way of appeal seeking leave of the appellate court. In Manoj Kumar v. Guruvayoor Devaswom (2011(2) KLT 1022) this Court has held that when the order of injunction is per se illegal, it can be challenged in a proceeding under Article 227 of the Constitution of India by any affected person who is not made a party to the suit, without recourse to the remedy by way of appeal. I am inclined to think that petitioner is entitled to challenge Ext.P3, order under Article 227 of the Constitution of India.
12. I make it clear that I have not expressed any opinion on the contentions respondents have raised in the suit and the application for injunction. I also make it clear that I am concerned in this proceeding only with Ext.P3, order
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insofar as itaffected the interest of the petitioner who is not a party to the suit or the applications. Resultantly, this original petition is allowed as under: 1. Ext.P3 order dated 26.03.2013 on I.A No. 925 of 2013 in O.S. No. 329 of 2012 of the Principal Sub Court, Thalassery is set aside. 2. I.A. No. 925 of 2013 will stand dismissed. 3. It is made clear that this judgment will not stand in the way of the 1st respondent impleading petitioner as a party to the suit or other pending applications as the case may be and seeking appropriate relief, temporary or otherwise in the matter.