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Judgment
The first defendant in a suit, primarily for declaration challenging an order dated March 3, 2018, passed by a Review Committee of the present
petitioner declaring opposite party no. 1 as willful defaulter, and for consequential reliefs, has preferred the instant revisional application. Initially, an ad
interim order of injunction was passed in the said suit, restraining the defendants therein from giving effect to the said order passed by the Review
Committee till May 3, 2018. The plaintiffs were directed to comply with the provision of Order XXXIX Rule 3(a) and (b) of the Code of Civil
Procedure immediately. However, vide Order No. 3 dated April 23, 2018, it was recorded by the trial court that the plaintiffs had complied with the
previous direction in an incomplete manner and, as such, the ad interim order of injunction was liable to be vacated at that stage.
Aggrieved by this, the plaintiffs/opposite party nos. 1 and 2 took out an application for recall of such order. By the impugned order dated May 3, 2018,
amongst other things, the trial court recalled the said order vacating the ex parte order of injunction, thereby restoring the ad interim injunction order
and extending the same till the next date. The premise of such order dated May 3, 2018 was that there was sufficient and effective compliance of the
provisions of Order XXXIX Rule 3(a) and (b) of the Code. However, despite the defendants having appeared in the suit by them, no copy of the
recalling application was directed to be served on the defendants, neither was any opportunity of hearing granted to the defendants on the said recall
application.
Being thus, aggrieved, the first defendant has preferred the instant revisional application. The plaintiffs/opposite party nos. 1 and 2 are represented in
court today. No service of notice on the proforma opposite parties is deemed necessary, in view of the said proforma opposite parties not being
affected either way by whatsoever order is passed in this revisional application. The primary premise of challenge by the petitioner is that the recall of
the previous order vacating ad interim order of injunction without giving a right of hearing to the petitioner was entirely without jurisdiction and against
all norms of Natural Justice.
Since the challenge is confined to such limited aspect, this Court is of the opinion that the present application under Article 227 of the Constitution of
India ought to be entertained instead of relegating the petitioner to an appeal, despite a primary objection in that regard having been taken by the
opposite party nos. 1 and 2. In support of his contention, learned counsel for the petitioner cites a judgment reported at AIR 1998 Delhi 126 (S.B.L.
Limited vs. The Himalaya Drug Co.), where a Division Bench of the Delhi High Court held, inter alia, that if the court was satisfied of non-compliance
by the applicant with the provisions contained in the relevant proviso to Order XXXIX Rule 3 of the Code, on being so satisfied, the court could simply
vacate the ex parte order of injunction without expressing any opinion on the merits of the case, leaving it open to the parties to have a hearing on the
grant or otherwise of the order of injunction, but bi-parte only.
Learned senior advocate appearing on behalf of the opposite party nos. 1 and 2 seriously controverted the arguments advanced on behalf of the
petitioner and submitted that the impugned order was absolutely within jurisdiction of the trial court, since by virtue of the same, the trial court only
rectified a patent error committed by the court itself and did not pass any substantive order as such. It was, further, argued that, vide Order No. 3
dated April 23, 2018, it was only observed that the ad interim order of injunction was liable to be vacated at that stage and it was not specifically found
that such order was actually vacated.
As such, there could not arise any question of any right, accrued to the present petitioner, being taken away by the impugned order. A perusal of the
materials show that the argument advanced by opposite party nos. 1 and 2, as to the possibility that the order dated April 23, 2018 in effect did not
vacate any ad interim order of injunction, could not be ruled out. However, such argument does not now lie in the mouth of the opposite party nos. 1
and 2, in view of the opposite party nos. 1 and 2 themselves having taken out an application for recall of the order dated April 23, 2018 on the premise
that by virtue of such order, the ad interim order of injunction was vacated. More so, in view of the impugned order, whereby the court below has
already adjudicated upon such prayer of recall by allowing the same, it would not be proper to permit such argument to be advanced by the opposite
party nos. 1 and 2 at this belated stage.
The other leg of the submission of the opposite party nos. 1 and 2 could contain some merits, insofar as the trial court might not have been justified in
suo moto observing that the ad interim order was liable to be vacated at that stage, without hearing the opposite party nos. 1 and 2 specifically on that.
However, once such error, if any, was committed, it was not for the trial court to repeat the error by again recalling the said other without even giving
an opportunity of hearing to the affected party, that is, the present petitioner. As such, on principle, this Court is ad idem with the submission made on
behalf of the petitioner as to the impugned order being without jurisdiction insofar as the same was passed without hearing the petitioner.
However, it is submitted by both sides that the next date fixed for hearing of the injunction application itself is June 25, 2018, which is only the next
working day. In such view of the matter, if any order is passed, setting aside the impugned order, it will only be an academic exercise and might cause
serious irreparable injury to the opposite party nos. 1 and 2, which probably would not be entirely for their own fault. This is so, because if there was
substantial compliance of the provisions of Order XXXIX Rule 3(a) and (b) of the Code, the observations made in the order dated April 23, 2018 were
entirely unwarranted and the opposite party nos. 1 and 2 might be non suited due to the second mistake committed by the court below while passing
the impugned order.
In any event, the scope in this revision is very limited and it would be futile to embark upon an academic exercise on the propriety of the orders in
view of the next date for hearing of injunction application being June 25, 2018, which is only the next working day. Accordingly, C. O. No. 1296 of
2018 is disposed of by directing the petitioner to file its written objection to the injunction application filed by the opposite party nos. 1 and 2 in the court
below, positively on June 25, 2018, upon service of an advance copy of the same upon the plaintiffs/opposite party nos. 1 and 2 by tomorrow, that is,
June 23, 2018. Reply, if any, to such written objection would be filed by the opposite party nos. 1 and 2 on or before June 27, 2018, also with an
advance copy to the present petitioner.
The Civil Judge (Senior Division), Second Court at Barasat, District- North 24Parganas, will dispose of the injunction application filed by the opposite
party nos. 1 and 2 in connection with Title Suit No. 325 of 2018 pending in the said court within July 5, 2018 peremptorily, without granting any
adjournment to either side. Such time frame is mandatory. However, it is made clear that it will be open to the opposite party nos. 1 and 2 to pray for
extension of the ad interim order of injunction, granted by the court below previously, upon notice to the present petitioner. If such prayer is made, the
trial court will decide the same upon hearing both sides, without being influenced by any observation made in this order. There will, however, be no
order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite
formalities.