Gyanimaya Gurung & Ors vs Buchniya Debi & Anr

The defendant in a suit for declaration, permanent injunction and other consequential reliefs, has preferred the instant revisional application against the refusal by the appellate court of an ad interim stay of operation of an ex-parte ad interim injunction order granted by the learned trial court.

Learned counsel for the petitioners submits that the trial court acted without jurisdiction and in violation of Order XXXIX Rule 3A of the Code of Civil Procedure in not disposing of the injunction application pending before it within 30 days and in not recording any reason for being unable to do so, apart from there being other irregularities in the order impugned in the instant revisional application.

Learned counsel cites a judgement reported at AIR 2000 SC 3032 (A. Venkatasubbiah Naidu v. S. Chellappan and others) wherein it was held, inter alia, as follows:-

"14. Learned single Judge stated that the trial Court ought not to have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 3-A of the Code which read as thus :

" where an injunction has been granted without giving notice to the opposite-party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability."

The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it has not restricted to a period of thirty days or less.

Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3-A.

The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. 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.

What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the Legislature mandates on the Court to have adequate reasons for such by passing and to record those reasons in writing. If that hump is also by-passed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of third days mentioned in the Rule."

On the strength of such judgement, it is argued that the appellate court ought to have granted stay of the order of the trial court since the trial court palpably violated all norms governing grant of ad interim injunction which were indicated in the cited judgement as well. However, it is equally well-settled that grant of stay of operation of an ad-interim injunction order at the ex-parte ad-interim stage tantamounts to allowing the appeal itself, without hearing the further side.

In such view of the matter, the appellate court was justified in refusing ad interim stay on the ground that the respondents in the appeal should be given an opportunity of being heard before passing any order in their absence which might adversely affect their rights in the suit.

Since the ratio of the impugned order is well within the periphery of the settled propositions of law governing the field, the impugned order need not be interfered with any revision.

Accordingly, C.O. 848 of 2019 is dismissed on contest, thereby affirming the impugned order but directing the appellate Court to dispose of the application for stay as well as the miscellaneous appeal itself as early as the business of the Court permits, preferably within two months from the date of communication of this order.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties after compliance of necessary formalities.