Rt Rev Dr. V. Devasahyam, Bishop in Madras CSI and Another vs D. Sahayadoss and Others

Defendants in O.S.No.293 of 2001 on the file of the Subordinate Judge, Cuddalore, aggrieved by the order dated 29.11.2001 in I.A.No. 777

of 2001 in the said suit, has filed the above revision under Article 227 of the Constitution of India. Plaintiffs/respondents herein filed the said suit

(O.S.No.293 of 2001) before the Sub Court, Cuddalore against the defendants/petitioners herein for declaration declaring that the Church of Holy

Epiphany, Cuddalore is an independent entity outside the control of the Church of South India and that the suit property belongs absolutely to the

Church of Holy Epiphany, and restraining the defendants, their men, agents or any person claiming under them by a decree of permanent injunction

from in any manner interfering with the plaintiffs'' possession and enjoyment of the suit property and their right to administer the affairs of The

Church of Holy Epiphany. Pending suit, the plaintiffs filed I.A.No.777 of 2001 under Order 39, Rules 1 and 2 and Section 151 of the Code of

Civil Procedure, praying for an order of interim injunction restraining the second respondent therein from acting as Pastor (Presbyter) of the

Church of Holy Epiphany and the first respondent from appointing any other person as Pastor (Presbyter) of the Church of Holy Epiphany. The

learned Subordinate Judge, by an order dated 29.11.2001, after hearing the arguments of the petitioners'' side and perusing the records and after

holding that they made out a prima facie case, granted ad interim injunction against the second respondent therein till 20.12.2001 and ordered

Notice to the respondents. Against the said order, the respondents in that application preferred the present revision under Article 227 of the

Constitution of India.

Heard the learned counsel for the petitioners as well as respondents.

Mr. M.A. Sadanand, learned counsel appearing for the petitioners, after drawing my attention to the relevant provisions, namely, Order 39,

Rules 1, 2 and 3 of the CPC and by pointing out that inasmuch as the learned Subordinate Judge has not recorded any reason for the grant of

interim order, the same is violative of the provisions of Order 39, Rule 3, C.P.C. and not sustainable. He also points out that in such a

circumstance, the petitioners herein are entitled to seek constitutional remedy under Article 227 of the Constitution of India by way of revision

before this Court. On the other hand, Mr. N.D. Behetty, learned counsel appearing for the respondents, vehemently contended that the present

revision under Article 227 of the Constitution of India is not maintainable since the petitioners herein have effective remedy either by filing a petition

for vacation of the injunction or filing an appeal before the appellate court accordingly prayed for dismissal of the revision petition.

I have carefully considered the rival submissions.

Since the issue arose in this Revision relates to interpretation of Order 39, Rules 1 and 3 C.P.C., it is useful to refer the same:-

Order 39, Rule I. Cases in which temporary injunction may be granted.-Where in any suit it is proved by affidavit or otherwise-

a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution

of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiffs or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the

wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the

plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until disposal of the suit or until further orders.

xx xx

2A. xx xx

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 or 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.

Before considering the fact whether the learned Subordinate Judge, Cuddalore has complied with the conditions stipulated in the above Rules, it

is but proper to refer the factual aspects. According to the petitioners, the Church of South India was formed by the Union of several Protestant

Churches in the year 1947. The Church of South India is an unregistered body with a written constitution which governs the administration in the

Church. It is divided into 21 Dioceses each administered by a body called the Diocesan Council which meets once in two/three years.

Each Dioceses is headed by a Bishop who presides over an elected Executive Committee which acts for the Diocesan Council in between the

biennial meetings of the Diocesan Council. Each Diocese consists of several units called Pastorates. A pastorate consists of one or more

congregations. Each Pastorate has its own constitution which is in conformity with the constitution of the Church of South India and the Diocese.

The properties of the Church of South India are held by the Church South India Trust Association (CSITA) which is registered under the

Companies Act, 1956. Though several civil and revenue proceedings had taken place, it is suffice to refer the filing of the suit, namely,

O.S.No.293 of 2001 by the respondents herein before the Sub Court, Cuddalore. In that suit, they prayed for a declaration declaring that the

Church of Holy Epiphany, Cuddalore is an independent entity outside the control of the Church of South India, declaring that the suit property

belongs absolutely to The Church of Holy Epiphany and restraining the defendants, their men, agents or any person claiming under them by a

decree of permanent injunction from in any manner interfering with the plaintiffs'' possession and enjoyment of the suit property and their right to

administer the affairs of The Church of Holy Epiphany. The plaintiffs also filed I.A.No. 777 of 2001 under Order 39, Rules 1 and 2 and Section

151 of the CPC praying for an order of injunction against the 2nd respondent therein from acting as Pastor (Presbyter) of The Church of Holy

Epiphany and from appointing any other person as Pastor (Presbyter) of The Church of Holy Epiphany pending suit. The Principal Subordinate

Judge, Cuddalore took up the injunction application and passed the following orders on 29.11.2001:-

29.11.2001

Petitioner''s side arguments Heard. Perused the

records. Prima facie case made out. Hence, ad-

Petition Under Order 39, Rules 1

interim injunction granted against 2nd respondent

and 2 Section 151. C.P.C.

till 20/12. Notice to respondents by then. Prl.

Subordinate Judge.

29.11.2001

Mr. M.A. Sadanand, learned counsel for the petitioners herein by drawing my attention to Order 39, Rules 1 and 3, vehemently contended that in

the absence of recording the reasons for granting ad-interim injunction before hearing the other side, the interim order passed by the learned

Subordinate Judge cannot be sustained. He also contended that the plaintiffs have not enclosed any document either along with the plaint or with

the injunction application; hence there is no question of ""perusing the records"" as stated by the learned Subordinate Judge. Any party who files a

suit for necessary relief is also entitled for a temporary injunction under Order 39, Rule 1. The said application must be supported by affidavit

stating that the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in

execution of a decree or that the other party threatens, or intends, to remove or dispose of his property with a view to defraud. In other words, if

there is sufficient materials and apprehension to show that the defendant is likely to waste, damage, alienate, sell or dispossess the property in

dispute or otherwise cause injury to the plaintiff in relation to the property in dispute in the suit, he can ask for a temporary injunction either until the

disposal of the suit or until further orders. Like wise, in a suit for restraining the defendant from committing a breach of contract or other injury, the

plaintiff may at any time during the pendency of the suit apply to the Court, for temporary injunction to restrain the defendant from committing the

breach of contract or injury complained of. In all these cases, the Court may by order grant injunction, on such terms as to the duration of the

injunction. The power granted under Rules 1 and 2 of Order 39 is subject to the conditions prescribed in Rule 3. As per Rule 3, in all the injunction

applications the normal rule is to issue notice of the application to the opposite party. However, if it appears to the Court that the object of granting

injunction would be defeated by delay, the Court shall, before granting an injunction, direct notice of the application for the same to be given to the

opposite party. The Court can grant injunction without giving notice of the application to the opposite party by recording the reasons for its opinion

and also require the applicant to fulfill the conditions stipulated in Clauses (a) (i) (ii) and (iii) and (b) of Rule 3. In the order under challenge, the

learned Subordinate Judge has no doubt stated that he heard the ""petitioners'' side arguments"" and ""perused the records."". He also stated that there

is a ""prima facie case"". Before going further, as rightly contended by Mr. M.A. Sadanand, the plaintiffs have not produced a single document in

support of their allegations along with the plaint. A perusal of the copy of the plaint filed in the typed-set of papers as well as the certified copy of

the plaint produced at the time of hearing shows that the plaintiffs have not produced documents along with the plaint. Order 7, Rule 9 insists that

plaintiff shall endorse on the plaint, or annex thereto, a list of the documents, if any, which he has produced along with it and if the plaint is

admitted, he has to present within such time as may be fixed by the Court or extended by it from time to time as many copies for the service of the

defendants. If documents are enclosed along with the plaint, Sub-rule (4) of Rule 9 enables the Chief Ministerial Officer of the Court to sign such

list and copies of such statements regarding the correctness of the same. Mr. N.D. Behetty, learned counsel appearing for the respondents, fairly

admitted that the plaint did not contain documents. However, it is stated that at the time of hearing of the injunction application I.A.No.777 of

2001, necessary documents have been placed before the Court and after perusing those documents, the learned Subordinate Judge has granted

ad-interim injunction. He also points out that the copies of those documents have been served on the respondents therein along with the copy of

the injunction petition, affidavit, plaint etc. According to Mr. Behetty, this shows that the plaintiffs have produced those documents at the time of

hearing of the injunction application. I am unable to accept the said contention, since the injunction application I.A.No.777 of 2001 did not contain

any such enclosures as claimed by Mr. Behetty. The petition and order finds a place at pages 30 and 31 of the typed book. Absolutely there is no

reference regarding details of those documents whether they were filed along with the petition or placed at the time of hearing of the injunction

application. In other words, except the oral statement of Mr. N.D. Behetty, absolutely there is no iota of evidence to show that the documents

have been filed either along with the plaint or in the injunction application. In such a circumstance, as rightly contended by Mr. M.A. Sadanand,

except the averments in the affidavit and plaint, no documents have been placed before the Court; accordingly the statement of the learned

Subordinate Judge that he ""perused the records"" cannot be sustained.

The scope of Order 39, Rule 3, particularly giving reason/reasons for granting injunction without giving notice of the application to the opposite

party and the effect of the same has been considered in various decisions. In Morgan Stanley Mutual Fund Vs. Kartick Das, , three Judge Bench

of the Supreme Court has held that reasons to be recorded before grant of ex parte injunction under Order 39 Rule 3. This question was

elaborately considered in para 38 of their judgment:-

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,

...the court shall record the reasons'' why an ex pane 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.

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.

After saying so and after considering the merits of the case before them, Their Lordships have concluded that, (para 39)

39...As to why the respondent chose to come at the eleventh hour and where was the need to pass an urgent order of injunction, are mailers

which are not discernible. Besides tested in the light of the case law set out above, the impugned order which is bereft of reason and laconic cannot

stand a moment''s scrutiny.

In Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, , which is also another three Judge Bench of the Supreme

Court, it has been held that, (para 30)

30....It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. 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.

It is clear from Rule 3 that whenever the Court intends to grant ex parte injunction without notice to the opposite part, the Court shall record its

reason/reasons for its opinion that the object of granting the injunction would be defeated by the delay and also require the applicant to fulfil the

conditions stipulated in Clause (a) and (b) therein. Though the learned Subordinate Judge has stated that he heard the arguments of the petitioners''

side, perused the records and found that a prima facie case is made out in favour of the petitioners, first of all there is no question of perusing the

records in the absence of any documents filed either along with the plaint or with the injunction application. The mere statement that ''there is a

prima facie made out'' would not be sufficient for strict compliance of Rule 3. As a matter of fact, the courts have taken a view that apart from

arriving at a conclusion that a prima facie case is made out, in certain matters, the court has to satisfy the maintainability of the suit etc. It is to be

noted that grant of injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of

a particular case. The Courts have to be more cautious that when the said power is being exercised without notice or hearing the party who is to

be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an

injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would

be defeated by delay. By the CPC (Amendment) Act, 1976, a proviso has been added to the said rule saying 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. In view of the Proviso to Rule 3 aforesaid, 1 hold that without recording the reasons, the grant

of ad-interim injunction cannot be sustained. When the statute itself requires reasons to be recorded, the Court cannot ignore the requirements.

Further, 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. 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 Toylor v. Taylor, 1875 (1) Ch D 426 : 45 LJ Ch 373 and AIR 1936 253 (Privy Council) (2). To make it clear that 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. It is also relevant to note the Constitutional Bench decision of the

Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , wherein Their Lordships have

held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and

cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the light of the specific provision, namely, Proviso to Rule 3, in

the absence of recording reasons for granting ad-interim injunction even before notice to the opposite party, I hold that the impugned order of the

learned Subordinate Judge dated 29.11.2001 is liable to be interfered.

Now I shall consider whether the impugned order can be interfered by exercising the constitutional remedy under Article 227 of the Constitution

of India or the aggrieved party has to go before the same court for vacation of the injunction order or file an appeal before the appellate court to

vindicate their grievance. Mr. N.D. Behetty, learned counsel for the respondents by relying on a latest decision of the Apex Court in A.

Venkatasubbiah Naidu Vs. S. Challappan and Others, , contended that the remedy under Article 227 of the Constitution of India is not

appropriate and the proper course for the petitioner herein is to go before the same court or file an appeal before the appellate court. In the said

decision, the power of the court to pass ex pane order of injunction with or without notice, interim or temporary or till further orders or till the

disposal of the suit, and the non-compliance of Rule 3 (a) or (b) as well as interference by this Court exercising Article 227 of the Constitution of

India have been considered. The facts in that case are the plaintiff claims to be a lessee under one S. Alagu, 6th defendant in the suit in respect of

the property and on that strength he claimed to be in possession of the property. He alleged that the defendants 1 to 5 have been threatening to

dispossess him. The appellant/plaintiff filed the suit on 25.6.99 for a decree of permanent injunction restraining defendant Nos. 1 to 5 from

dispossessing him. Along with the institution of the suit he moved an application under Order 39, Rules 1 and 2 of the CPC to pass an ad-interim

injunction restraining the respondents 1 to 5 or their men or agents, or their representatives or any person claiming through them or under them

from evicting the petitioner from the suit property other than by due process of law. On 29.6.99 the Assistant Judge of the City Civil Court,

Chennai passed an ex pane order of injunction. In the order, the learned Judge has stated that he perused the documents. Rental receipt document

11 to document 47 proves that the petitioner is the statutory tenant and in prima facie possession of the suit property. The balance of convenience

is in favour of the petitioner. In the interest of justice, it appears that R-1 to R-5 are restrained from evicting the petitioner from the suit property;

accordingly granted interim injunction till 25.8.99. The first respondent on behalf of himself and respondents 2 to 5, filed a revision petition invoking

Article 227 of the Constitution before this court alleging that they purchased the property from the owners thereof its per different sale documents

executed on 15.3.96, and they were in possession and enjoyment of the property. The learned Single Judge of this Court, who disposed of the

revision, made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond

thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order

39, Rule 3-A of the Code, according to the learned Single Judge and, therefore, he set aside the injunction order. After holding that there is no

documents to show that the first respondent is actually in possession and running such a business except the lease deed, he came to the conclusion

that the ex parte order is unsustainable and accordingly set aside the order of the trial Judge. After holding so, the learned Single Judge directed the

trial court to lake up the interlocutory application for injunction and pass orders on merits and in accordance with law. It was contended before the

Supreme court that the High Court should not have entertained a petition under Article 227 of the Constitution when the respondent had two

remedies statutorily available to him first is that the respondent could have approached the trial court for vacating, if not for any modification, of the

interim ex parte order passed. Second is that an appeal could have been preferred by him against the said order. It was also stated that it is open

to the respondent to opt either of the two remedies. After referring to Rule 3 of Order 39, the Supreme Court has arrived at the following

conclusion:- (para 12 of L.W)

What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not

require the applicant to perform the duties enumerated in Clauses (a) and (b) of Rule 3 of Order 39. In our view, such an order can be deemed to

contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed

ex pane, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance

with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The

consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take

advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against

any disobedience alleged against another party.

It is also relevant to note the further conclusion of Their Lordships in para 18,

It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the

procedure established by law. Under the normal circumstances, the aggrieved party can prefer an appeal only against an order passed under Rules

1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during

the pendency of the application for grant or vacation of temporary injunction. In such circumstances, the party who does not get justice due to the

inaction of the court in following the mandate of taw must have a remedy. So we are of the view that in a case where the mandate of Order 39

Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant

or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to

entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate

cases, the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring

judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex

parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary

injunction, on the date of expiry of thirty days mentioned in the Rule.

Mr. N.D. Behetty very much relied on the conclusion of Their Lordships in para 12 and 18 extracted above. Though the said decision supports the

contention of the learned counsel for the respondents, the facts in that case clearly show that the learned Single Judge of the High Court interfered

in the revision filed under Article 227 of the Constitution mainly on the ground that the trial court ought not have granted an order of injunction at

the first stage itself which could operate beyond 30 days and according to the learned single Judge, such a course is impermissible under Order 39,

Rule 3-A of the Code. He, therefore, set aside the injunction order ""for the clear transgression of the provisions of law"" and noted that this is the

third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Order 39, Rule 3-A of the

Code emphasises that Court should dispose of the applications for injunction within 30 days. It is clear that where an injunction has been granted

without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within 30 days from the date on

which the injunction was granted; and where it is unable so to do, it shall-record its reasons for such inability. That is not the position in the case on

hand. In the present case, the learned Subordinate Judge, Cuddalore, by Order dated 29.11.2001, case has granted ad-interim injunction till

20.12.2001. The Hon''ble Supreme Court after holding that the said Rule does riot say that the period of injunction should be restricted by the

Court to 30 days at the first instance, but the court should pass final order on it within 30 days from the day on which the injunction was granted,

came to the conclusion that the order does not ipso facto become illegal merely because it was not restricted to a period of 30 days or less. It is

also clear that the Court (Supreme Court) was to consider the consequence, if any, on account of the court failing to pass the final orders within 30

days as enjoined by Rule 3-A. Only in this context, the Supreme Court has held that the aggrieved party shall be entitled to the right of appeal

notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. This is clear

from para 18 of Their Judgment. The reading of paragraph 18 of their Judgment, it is clear that the aggrieved party can prefer an appeal only

against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. The Hon''ble Supreme

Court has also expressed that in a case where the mandate of order 39 Rule 3 A of the Code is floated, the aggrieved party shall be entitled to the

right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force.

They also observed that in such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the

omission of the subordinate Court in complying with the provisions of Rule 3A. In the present case, inasmuch as the learned Subordinate Judge has

not recorded the reason for its opinion for granting ad-interim injunction without giving notice of application to the opposite party, I am of the view

that the said decision is not helpful to the respondents'' case as claimed by Mr. N.D. Behetty. I am also satisfied that Their Lordships have very

much considered the consequence of failure of non-compliance of Sub-rule (a) or (b) of Rule 3 and Rule 3A. Further, the earlier judgments of the

Supreme Court, particularly regarding Proviso to Rule 3 have not been cited or referred to in Venkatasubbiah Naidu, A. v. S. Challappan and

Ors., 2001 (1) L.W. 429. I have already referred to the decisions reported in Morgan Stanley Mutual Fund Vs. Kartick Das, and Shiv Kumar

Chadha and Others Vs. Municipal Corporation of Delhi and Others, , wherein the three Judge Bench of the Hon''ble Supreme Court after

considering the Proviso to Rule 3, have held in categorical terms that ex parte injunction without recording reasons for its opinion cannot be

sustained and this Court can interfere by exercising the constitutional power under Article 227. For these reasons, I am of the view that the two

Judge Bench decision reported in Venkatasubbiah Naidu, A. v. S. Challappan and Ors., 2001 (1) L.W. 429 relied on by Mr. N.D. Behetty is not

helpful and applicable to the case on hand.

Learned counsel appearing for the respondents has also very much relied on a Judgment of K.A. Swamy, J., the then Hon''ble Chief Justice of

this Court in Rt. Rev, R.T. Baskaran and Anr. v. Aruldoss and Anr., 1996 (2) L.W. 834. No doubt, in similar circumstance, the Hon''ble Judge in

para 4 of the Judgment has held that,

Even assuming for a moment that what is passed is only an ad-interim injunction, ignoring the provisions contained in Rule 3 of Order 39 of

Civil Procedure Code, the only appropriate course for the party against whom an order of injunction is issued, is to file objections immediately

without waiting for service of notice, and seek vacation of the same. Rule 3-A of Order 39, C.P.C. specifically provides that where an injunction

has been granted without giving a notice to the opposite party the Court shall make an endeavour to finally dispose of the application within 30

days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability. Therefore, it

becomes incumbent on the part of the Court granting an injunction without giving a notice to the opposite party to decide the application within four

weeks. That being the position, the practice of filing a Civil Revision Petition against the ad-interim injunction and entertaining of the same by this

Court cannot be encouraged, rather it should be deprecated, and discontinued....

Though Mr. N.D. Behetty heavily relied on the above passage of the conclusion of the Hon''ble Judge, it is to be noted that the said conclusion had

been arrived at in a revision filed u/s 115, C.P.C. against the ex parte order of injunction passed under Order 39, Rules t and 3. Admittedly, it

seems that the decisions of the Supreme Court reported in Morgan Stanley Mutual Fund Vs. Kartick Das, and Shiv Kumar Chadha and Others

Vs. Municipal Corporation of Delhi and Others, were not brought to the notice of the Hon''ble Judge. Apart from this, the learned Judge had no

occasion to consider the power of interference under Article 227 of the Constitution of India. I have already stated that the case before the learned

Judge relates to revision filed u/s 115, C.P.C. In such a circumstance, I am of the view that the conclusion arrived at by the learned Judge is to be

confined to the revision petitions filed u/s 115, C.P.C., accordingly the same is also not helpful to the present case.

It is relevant to refer a decision of the Apex Court in State of U.P. Vs. District Judge, Unnao and Others, , wherein their lordships have held

that rigid and inflexible view of jurisdiction under Article 227 should not be taken. Their Lordships have also held that ""Article 227 or Article 226

was devised to advance justice and not to thwart it. Even as early as in 1954 the Constitutional Bench of the Supreme Court in Waryam Singh and

Another Vs. Amarnath and Another, had held that the power of superintendence conferred by Article 227 is to be exercised most sparingly and

only in appropriate cases in order to keep subordinate Courts within the bounds of their authority apart from and independently of the provisions of

other laws conferring revisional jurisdiction on the High Court. It is also relevant to note the latest decision of the Supreme Court in Vadivelu Vs.

Sundaram and Others, regarding the revisional jurisdiction of this Court under Article 227 of the Constitution. In the said decision, Their Lordships

have held in para 26 that ""when there is error of jurisdiction or flagrant violation of the law laid down by this Court, by exercising the revisional

powers, the court can set aside the order passed by the Tribunal to do justice between the parties."" It is clear that error of jurisdiction or flagrant

violation of the law laid down by the Supreme Court can be set aside by this Court under Article 227 of the Constitution. As already referred to by

me, in the case of granting injunction without hearing the opposite party, it is mandatory on the part of the trial court to record the reasons for its

opinion for granting such injunction. When the said condition is violated, I am of the view that in order to do justice between the parties, this Court

can interfere by exercising the revisional powers under Article 227 of the Constitution. The impugned order which is bereft of reason and laconic

cannot stand a moment''s scrutiny as ruled in Morgan Stanley Mutual Fund Vs. Kartick Das, . If it is held that the compliance with the proviso in

Rule 3 is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise. As observed by the Hon''ble

Supreme Court, 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. Inasmuch as this condition has been violated by the learned Subordinate Judge, the

impugned order is liable to be set aside.

Net result, the order dated 29.11.2001 of the Subordinate Judge, Cuddalore in I.A.No. 777 of 2001 in O.S.No.293 of 2001 is set aside.

Civil Revision Petition is allowed. No costs.