M. Krishnamoorthy vs V. Rajalakshmi and Others

S. Palanivelu, J.—The petitioner is first defendant in O.S. No. 232 of 2008 on the file of the Subordinate Judge, Poonamallee. The first and

second respondents filed the suit against this petitioner and respondents 3 to 5, for Permanent Injunctions and for damages. The first and second

respondents filed an application under Order 39 Rule 1 and 2 read with Section 151 of C.P.C, arraying 3 to 5 respondents herein as respondents

against this petitioner for Temporary Injunction with regard to ''B'' Schedule property till the disposal of the suit.

Learned District Munsif, Poonamallee, after hearing the first and second respondents side and passed the following order which is challenged

before this Court.

Heard the petitioner side; Records perused; Petitioner is the owner - respondent is the tenant; The allegations is tenant causing damages to the

properties; Hence, prima facie case made out: Balance of convenience is in favour of the petitioner and loss may be collected because of the

damages if any only to the petitioner;

Therefore, ad-interim injunction is granted restraining the respondents 1 to 3, their men, agents, or servants from doing any work; Except the work

of the defendant No. 1, in the schedule mentioned ''B'' property, till 3.12.2008.

Notice to R.1 to R.3 by Open to Court and private; Or.39 R.3(a) CPC to be complied with: call on 3.12.2008.

Learned Counsel for the petitioner would strenuously contend that inasmuch as this petitioner ranked as first defendant in the suit, was not

impleaded as party in the interim injunction petition, that by means of the interim order passed by the Court below, he is prejudiced and put to

much hardships, that the order is non-speaking one which do not satisfy the requirements of the provisions of Order 39 and hence this Court has

supervisory jurisdiction under Article 227 of Constitution of India, to set aside the order.

Conversely, the learned Counsel for the respondent 1 and 2 would submit that there is nothing wrong on the part of the Court below to pass

order impugned, and the lower Court has also mentioned that the balance of convenience is in favour of these respondents.

The leaned counsel for the petitioner, in support of his contention, placed reliance upon a decision of this Court in 1997 MLJ 393 [Muniammal

v. Vadamalai] wherein this Court has dealt with an identical circumstance where a party obtained interim order without impleading a person who

would be affected by means of the interim order. The operative portion of the judgment goes thus:

The law is very clear that the suit itself is misconceived and that it is an abuse of process of Court, petitioner cannot have any grievance when

the injunction application was dismissed by the lower appellate Court. The lower appellate Court took into consideration the fact that the petitioner

has filed the suit suppressing material facts and without impleading the person who would be affected if an interim order is passed. The conduct of

the petitioner, according to the lower appellate Court, disentitles the petitioner from getting an equitable relief through Court. When the petitioner

has come to Court with an oblique motive and without good faith, she is not entitled to the interim relief sought for. The trial Court disregarded the

well-settled legal principles in granting the injunction. The same was set right by the lower appellate Court.

In the affidavit filed by first and second respondents there is nothing to show that for what reason this petitioner was not impleaded in the

Temporary Injunction application and that even if an order passed against him, it would not prejudice his rights. It is stated in the affidavit that

defendants No. 2 and 4, having their workshop elsewhere were accommodated inside the suit property and doing their fabrication oriented jobs

and the second petitioner (second respondent herein) objected the same and the defendant may allow third party manufacturers to use the suit

property; that defendants No. 2 to 4 are not tenants under them and they cannot do any work ''B'' schedule property and the first defendant also

cannot allow the defendants 2 to 4 to work in the ''B'' schedule property and that the first defendant must be prevented from allowing the

watchman to live in the suit ''B'' schedule property and must also be prevented from causing damages to the premises occupied by him.

As per the agreement conditions first defendant has to restore ''B'' Schedule in the same condition as it was taken over by him. The first

defendant viz., this petitioner was allowed to be continuing in the property and it is the version in the affidavit that he allowed 2nd and 4th

defendants to occupy the premises and do some work. If it is so, the petitioner should also be injuncted while other respondents are be prevented

from interim order of the Court. It is the definite version that the petitioner entertained them to do fabrication oriented jobs. Hence this petitioner

should have been made as a party to the injunction application.

Learned Counsel for the petitioner also cites a Full Bench decision of the Supreme Curt in Morgan Stanley Mutual Fund Vs. Kartick Das, , ii)

Securities and Exchange Board of India and Ors.] wherein Their Lordships have elaborately dealt with the duties of the trial Court while passing

the order of exparte injunction and the following is the relevant portion of the Judgement:

This Court had occasion to emphasise the need to give reasons before passing ex parte orders of injunction. In Shiv Kumar Chadha and

Others Vs. Municipal Corporation of Delhi and Others, , it is stated as under:

...the court shall ''record the reasons'' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In

this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement

is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under

a statute or under the common law, must be informed why instead of following the requirement of Rule.3, the procedure prescribed under the

proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restrain against a party, without affording

an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex

parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority

concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required

to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3

of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under

exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons

before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the

proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order

39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at

all. This principle was approved and accepted in well-known cases of Taylor v. Taylor (1875) 1 Ch D 426 : 45 LJ Ch 373 and AIR 1936 253

(Privy Council) . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural

Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare (1975) 1 SCC 915.

The Court below has miserably failed to mention the absence of this petitioner in the interlocutary application and the necessity for granting

interim order in favour of first and second respondents in the absence of this petitioner and the order is silent about the impact of the same on this

petitioner. In this regard, the principles laid down in the above said decision have to be followed.

Learned Counsel for the respondents 1 & 2 would place reliance upon a decision of the Supreme Court in A. Venkatasubbiah Naidu Vs. S.

Challappan and Others, wherein it is held that the High Court shall not entertain revision petition and the party affected by the interim order should

have preferred appeal from the exparte interim order. The operative portion of the judgment goes thus:

Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the

party had two other alternative remedies. Though no hurdle can be put against the exercise of the Constitutional powers of the High Court it is a

well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the

other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected

by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that

aspect as the High Court had chosen to entertain the revision petition.

The learned Counsel for the petitioner would submit that since the petitioner was not party to the Interlocutory application, he could not prefer

appeal before the appellate Court and the remedy is open to him only to prefer revision under Article 227 of Constitution, before this Court, that if

the petitioner were a party to the interim injunction application and an order passed, in case of his being arrayed as respondent, then there is every

possibility for him to prefer appeal and that since he was not party to the petition, he has to seek remedy before this Court. The argument of

learned Counsel for the petitioner has considerable force.

Following the principles laid down in Morgan Stanley Mutual Fund case supra, since the impugned Order is cryptic and does not contain any

reasons as to the prejudice caused to the petitioner, it has to be set aside and it is accordingly set aside.

In fine the Civil Revision Petition is allowed. No costs. Connected M.P. is closed.