Rajapalayan Industrial and Commercial Syndicate Ltd. and Another vs K.A. Vairaprakasam and Another

Srinivasan, J.—This revision petition is against an order passed on 26-5-1-988 by the Vacation Civil Judge in I.A. 697 of 1988. It is, no

doubt, an ad interim ex parte order and a revision petition is not ordinarily maintainable in this court. Normally, this court does not entertain a

revision petition against an ad interim injunction, when the court below has passed the same and has ordered notice to the other side. The normal

course open to the opposite party in such a case is to approach the same court for vacating the injuction order or passing appropriate order as laid

down by a Division Bench of this court in Abdul Shukoor Sahib v. Umachandran AIR 1976 Mad 350.

However, learned counsel for the petitioner points out that the order of interim injunction made by the trial court in this case is in complete

violation of the provisions of Order XXXIX Rule3, C.P.C. When the CPC was amended in 1976 by Act 104 of 1976, a proviso was introduced

in Order XXXIX Rule 3, whereby when a court proposes to grant an injunction without giving notice of the application to the opposite party, the

Court shall record reasons for its decision that the object of granting, the injunction would be defeated by delay and require the applicant to

comply with certain conditions set out therein.

Unfortunately, the members of the Subordinate judiciary do not take care to adjure to the rule contained either in the proviso to Rule 3-A.

Recently, I had an occasion to interview certain temporary District Munsiffs for the selection of District Munsifs. I had questioned each one of the

persons who had acted as temporary District Munsif, whether he was aware of Order XXXIX Rules 3 and 3-A C.P.C. and I found to my dismay,

that none was able to answer that question. None of them was aware of the contents of these two rules. That position seems to be prevailing even

with thesubordinate Judges. The proceeding from which this revision has arisen is dealt with by a Subordinate judge who has functioned as

vacation civil Judge.

In this case, he has ordered an ad interim injunction till 21-6-1988 without recording any reason for granting the temporary injunction without

giving notice to the opposite side or hearing the opposite side. This is in violation of the procedure prescribed by Order XXXIX Rule 3 C.P.C. It

is very unfortunate that a Subordinate Judge should ignore the provisions of the Civil Procedure Code, while passing orders in a matter like this.

Particularly in this case, the order of interim injunction has the effect of paralysing the work of a company. The allegations, made in the affidavit

filed in support of the application for injunction are to the effect that defendants 2 and 3 in the suit had ceased to be Directors of the Company

somewhere in 1986 or 1987. The suit has been filed only on 25-5-1988. The cause of action for the suit is said to be a notice dated 2-5-1988

calling for an annual general meeting of the company to be held on 27-5-1988. The notice was admittedly received by the plaintiff on 4-5-1988.

The suit is filed by a shareholder. The suit is filed 21 days after the receipt of the notice of the annual general meeting and by the application for

interim injunction the plaintiff prayed for a direction restraining respondents 2 and 3, who are two of the three directors of the company, not only

from convening the general body, meeting on 27-5-1988 but also from operating the Bank account or acting as directors. On 26-5-1988 the

learned Subordinate Judge passed an order granting ad interim injunction. By granting that injunction, he had restrained defendants 2 and 3, who

are two of the three directors of the company, from not only calling for the General Body meeting but also from operating Bank account or in any

way acting as directors of the first defendant company. Even assuming that the holding of the General Body meeting should have been stopped

without issuing notice to the defendants, there was no justification for preventing defendants 2 and 3 from functioning as directors without hearing

them. The learned Judge overlooked that the order passed by him would have the effect of paralysing the affairs of the company and effect the

intertests of third parties. He did not even provide for any safeguards for the proper working of the company but made his order effective for

nearly a month till 21-6-1988.

I am told by learned counsel for the petitioners that it has become a habit of the Subordinate Judiciary to pass such orders though dire

consequences flow therefrom and this case is one such instance. In matters relating to injunctions pending suit, the attitude seems to be ''asketh and

thou shall have it."" It is only to prevent that evil, the proviso to Rule 3 of Order XXXIX C.P.C. has been introduced in 1976. As a further

safeguard, Rule-3-A has also been introduced. It is very unfortunate that occasions arise often for this court to remind the courts below of the

provisions of the Civil Procedure Code.

In S. Sundaram Pillai and Others Vs. P. Govindaswami and Another, , M. N. Chandurkar C. J. had to make the following observations : --

Before parting with the case, it is necessary to observe that the trial courts realise that injunctions, whether prohibitory or mandatory, should not

be granted as a matter of course and the trial court must exercise extreme caution and care before an order of injunction is made and it has to

decide the question relating to the grant of an ad interim injunction according to well established principles. The trial court, even at the stage of

making an ad interim order of injunction has to apply its mind seriously to the question whether the plaintiff has made out a prima facie case for the

grant of an injunction. The circumstances that ad interim order can be vacated after the defendant appears and contests the correctness of the

order of injunction is no justification for issuing an injunction as a matter of course.

In the present case, I would have interfered with the order of the court below at this stage. But the defendants had filed an application to vacate

the interim order before the same Judge and final orders were passed on 10-6-1938 against which an appeal was filed by the third defendant in the

suit in this court. The said appeal has been disposed of by me today by a separate order on the basis of consent of parties.

In the circumstances, the revision petition is dismissed, but with a direction to the Subordinate Judiciary to adhere strictly to the provisions of the

CPC in future in the matter of granting orders of injunction. There will be no order as to costs.