Mahalaxmi Road Lines, Sitapur vs U.P.Warehousing Corporation, Lucknow and Others

N.K. Mehrotra, J.—This is a revision under Section 115 of the Code of Civil Procedure against the order dated 9.9.2002 issuing notice on the application 6C for an adinterim injunction under Order 39 Rules 1and 2 read with Section 151 of the Code of Civil Procedure.

The plaintiffrevisionist filed a suit for restraining the opposite party Nos. 1and 3 to act upon and implement the tender notice dated 24.8.2002 and 11.9.2002 in as much as it pertains to Warehousing Corporation Sitapur shown at Serial No.3 published in "Dainik Jagaran", Lucknow and further not to finalise the tender in pursuance of the said tender notice and to restrain the defendants from interfering in the work/contract of the plaintiff upto the period of six months more and the defendant be directed to allow the plaintiff to work as handing and transport contractor upto to the statutory period as provided in the circular dated 1.9.2000 for ad hoc handling. During the pendency of the suit, the plaintiff revisionist also moved an application under Order 39 Rules 1and 2 read with Section 151 of the Code of Civil Procedure for an ad interim injunction. The learned trial court after following the procedure under Rule 3 Order 39 issued notice to the Defendantopposite parties on the ground that there is no sufficient ground for issuing exparte injunction order. This order has been challenged in the instant revision on the ground that the matter was most urgent and the opening of the tender was fixed for 9.9.2002 which was extended by notice dated 11.9.2002 for opening on 24.9.2002. According to the revisionist, he was already granted contract by an order dated 14.8.2002 and started working thereupon since 16.8.2002. It is also alleged that under Order 39 Rule 3, it is provided that the reasons should be recorded if the injunction is not granted exparte. It is further contended that the court below has committed irregularity in recording the finding that the revisionist has sought relief for allowing work of handling and transport contractor whereas, the work order was already existing as issued on 14.8.2002 and the same is still subsisting. The revisionist has further contended that ad hoc contractor could be appointed as provided in the Cricular dated 3.9.2002 for six months and further period can be extended for three months.

The opposite party has filed the counter affidavit alleging therein that one Gurmeet Singh was engaged at ad hoc contractor on 12.7.2001. On complaints being received against the said Sri Singh about certain irregularities and for charging loading and unloading charges over and above to the agreed terms and conditions. Therefore, his agreement was cancelled on 1.8.2002 and quotations were called under temporary arrangement by the Sultanpur Centre. The revisionist on being found with lowest quotation was selected and his name was sent for approval to the Head Office. The Regional Office issued order on 14.8.2002 and the revisionist was given the contract. He deposited the security money as Rs.2,50,000/ on 16.8.2002. Fresh tender notice was published on 23.8.2002. The amended tender notice was issued on 11.9.2002. It has not been finalized because of the interim order passed by this Court. The Circular dated 1.9.2000 has no concern with the defendantopposite parties. The tender notice was issued for appointment of regular contractor. The agreement between the parties was purely temporary basis and did not prescribe for any time limit for agreement. The defendantopposite parties have also filed the copy of the quotation dated 22.7.2002 on the basis of which the plaintiffrevisionist had applied.

A perusal of the document on record goes to show that there was an agreement between the plaintiff and the opposite partycorporation for ad hoc period with effect from 16.8.2002. No period was prescribed for that agreement. The plaintiffrevisionist has relied on the Circular dated 1.9.2000. This Circular has been issued by the Food Corporation of India while Warehousing Corporationdefendant has nothing to do with the said Circular. After finding no period prescribed in the agreement, the learned trial court did not think it proper to issue exparte injunction prior to the service of the notice on the opposite parties.

Order 39 Rule 3 is as follows:

"3. Before granting injunction, Court to direct notice to opposite party The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party;

(Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) Copies of documents on which the applicant relies and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.)"

After hearing the parties counsel I am of the opinion that at the time of issuing notice under Order 39 Rule 3 if an adinterim injunction was not granted, the trial court is not required to record any reason. The reasons are to be recorded only where, it is proposed to grant an injunction without giving notice of the application to the opposite party. So if, no reason has been given by the learned trial court, it cannot be said that the trial court has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. The documents filed by the plaintiffrevisionist before the trial court at the time of moving application under Order 39 Rules 1 and 2 was prima facie not sufficient to give any right to the plaintiffrevisionist to get an injunction to restrain the defendant from implementing the tender notice dated 24.8.2002 and 11.9.2002. The basis of the suit is that the Circular dated 1.9.2000 was not issued by the Warehousing Corporation, therefore, if the trial court did not issue ex parte injunction, it cannot be said that the trial court has either failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. Since, the agreement between the parties was for an ad hoc period and since the Circular dated 1.9.2000 was not applicable in the case of Warehousing Corporation, there is nothing on record to interfere in the impugned order in this revision.

In result, the revision is dismissed.

(Revision dismissed)