Mahalingam and another vs Mahalingam and another

S.S. Subramani, J.—Defendants 1 and 2 in O.S. No. 813 of 1998 on the file of District Munsif Court, Pollachi, are the revision petitioners.

Suit filed by the plaintiff was one for declaration that the petitioners are not entitled to any right of way or cart track through the plaint ''A'' schedule

property and for other reliefs.

Along with the suit, plaintiff filed I.A. No. 2544 of 1998 for an order of interim injunction. Court below ordered notice on the injunction

application and the defendants entered appearance on 29.1.1999, on the day, when the case was posted for objection of the petitioners, they

sought adjournment. Lower Court did not grant adjournment, but passed the following order.

This petition is filed under Order 39, Rule 1 and Section 151, C.P.C. praying to grant an ad interim injunction restraining the respondents 1 and 2

from taking their carts and cattle through plaint ''A'' schedule lands till the disposal of the suit.

Counter of respondents 1 to 3 not filed. Petition is allowed. No costs.

The same is challenged in C.R.P. No. 1394 of 1999.

After said order, petitioners moved I.A. No. 130 of 1999 under Sections 141, 151 and Order 9, Rule 7 of the Code of Civil Procedure. Lower

Court dismissed that application on the ground that the provision applicable is Order 39, Rule 4 and correct provision of law is not stated,

therefore, the same is liable to be rejected. The same is challenged in C.R.P. No. 1393 of 1999.

At the same time, when the matter came up for admission, learned Judge of this Court, ordered status quo.

I heard learned counsel on both sides.

Learned counsel for the petitioners submitted that the order, granting injunction is nullity since statutory provisions have not been complied with.

After hearing the counsel on both sides, I feel that the order of the lower Court is liable to be interfered with.

In Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, their Lordships considered when an order of injunction is to

be granted. In para 30 of the judgment, their Lordship held thus:

Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the

satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the

plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief

according to the legal principles - Ex debito justitiae. Before any Such Order is passed, the Court must'' be satisfied that a strong prima facie case

has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal

of injunction would cause irreparable injury to him.

In the same decision, in paras 34 and 35, their Lordships further reiterated that Court also must record its reasons for granting injunction. It is true

that in para 34 and 35, their Lordships dealt with the power of Court while granting ex parte order of injunction. But, according to me, the same

principle have to be applied in this case also when the Court is granting injunction only because the defendant did not file his objection. Paras 34

and 35 of judgment also read thus:

The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was

introduced, Rule 3 said ""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"". The proviso was introduced to

provide, a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the

opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that 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 restraint 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 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 exparte 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 by the 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 surplus age 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 all. This

principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazir Ahmed v. Emperor. 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 Ramchandra Keshav Adke v.

Govind Joti Chavare.

As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without

notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant

factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed.

(emphasis supplied)

When the law provides that particular act has to be done only in a particular way, the Court is bound to pass an order only in that way and not

in any other manner. I have already extracted the Order passed by the lower Court. Merely because the defendant did not file a counter, it does

not follow that the plaintiff is entitled to get an injunction. The plaintiff must satisfy the Court that grounds have been made out for grant of an

injunction. The lower Court has not applied its mind while passing the impugned order. When the lower Court has not considered whether the

plaintiff has got a prima facie case or whether there is balance of convenience and what is the irreparable loss that is to be sustained unless order of

injunction is granted, the order cannot stand in a Court of law when the law says that the grant of injunction can be only on satisfying certain

conditions. The very jurisdiction of the Court to pass order of injunction also rests on satisfaction of those ground. In this case, the lower Court has

not given any- reason for the grant of an injunction. It acted without jurisdiction.

After the injunction order was passed, petitioners moved an application to have the injunction application heard. It is true that they moved an

application under Sections 141, 151 and Order 9, Rule 7 of the Code of Civil Procedure, the lower Court also understood the purpose of that

application. The application was filed only to modify the order of injunction or to have the same vacated. Merely because a wrong provision of law

was quoted, the lower Court should not have dismissed that application. Both parties knew that the application was filed only to pass a final order

in the injunction application after setting aside the earlier order. Dismissal of that application on the ground that a wrong provision of law has been

quoted is also an illegality committed by the Court below.

At this juncture, learned counsel for the respondents submitted that against the order dated 29.1.199, an appeal lies. The argument is, it is not

an ex parte order, but an order after defendants have entered appearance and therefore, revision is not maintainable. I do not find any substance in

that argument. This Court is exercising the power of revision or the supervisory jurisdiction only to see that the Courts below are acting in

accordance with law. If the Courts below have ignored the provisions of law or the law declared by the Hon''ble Supreme Court and has passed

an order, which causes manifest injustice to the party, merely because an appeal lies against the order, that cannot be a ground to hold the

revisional jurisdiction is not to be exercised. According to me, against the order dated 29.1.1999, no appeal also will lie since it is not an order in

the eye of law. There is no adjudication or a finding, why the Court is exercising discretionary power for granting injunction. Non-appearance of

the defendants or non-filing of their objection is not a ground for granting injunction. In this case, the Court below has exercised jurisdiction

arbitrarily and the order is perverse. A learned Judge of this Court in P. Ramaswamy Vs. Dhandayuthapani Finance, Sankari, has held that merely

because an appeal is maintainable, the power of this Court under S.115, C.P.C. is not ousted. According to me, when manifest injustice is done,

that will be a ground to invoke the revisional jurisdiction of this Court. In the result, the impugned orders are set aside and both the C.R.Ps. are

allowed. No costs. C.M.P. No. 7745 of 1999 is closed. Court below is directed to pass order in the injunction application afresh after hearing

both sides.