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Judgment
The revisional application under Article 227 of the Constitution of India is directed against the Order No. 7 dated April 5, 2018 passed by the leaned District Judge, at Alipore Dist. 24 Parganas(South) in Misc. Appeal No. 26 of 2018.
The opposite parties being the plaintiffs of Title Suit No. 98 of 2018 filed an application in the said suit under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The learned Trial Judge by the order no. 1 dated January 19, 2018 refused the prayer of the opposite parties for an ad interim order of injunction on the said application.
The opposite parties being aggrieved by and dissatisfied with the said order of the learned Trial Judge preferred an appeal before the learned District Judge at Alipore being Miscellaneous Appeal No. 26 of 2018. In the said appeal the opposite parties filed an application under Order 39 Rules 1 and 2 of the Code.
The learned District Judge, by the order no. 3 dated February 28, 2018 passed an ad interim order of injunction on the said application, directing the parties to maintain status quo over the suit property in respect of the right, title, interest, nature, character and possession of the same till March 27, 2018 with a direction upon the opposite parties to comply with the provisions of Order 39 Rule 3(a) and (b) of the Code.
The petitioners, the defendant Nos. 1 and 3 of the said suit, being respondents of the said appeal, entered appearance in the said appeal and filed an application praying that the ad interim order of injunction passed in the said appeal on February 28, 2018 be vacated and/or be not extended alleging that the opposite parties have not complied with the mandatory provisions of the Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code by not communicating the ad interim order of injunction to the petitioners and by not supplying a copy of the plaint of the suit to them.
The opposite parties contested the said application by filing the written objection. In the said written objection the opposite parties contended, inter alia, that supply of the copy of the Memorandum of the said Appeal and the copy of the application for injunction amount to substantial compliance of requirements of the said provision of the Code.
The learned District Judge by the order impugned dismissed the said application filed by the petitioners accepting the said contention of the opposite parties and further holding that the application for injunction contains same averments of the plaint. The learned District Judge by the said order transferred the record of the said Miscellaneous Appeal to the Court of learned 13th Additional District Judge for disposal after extending the said ad interim order of injunction passed on February 28, 2018 till the disposal of the application for injunction filed in the said appeal.
Mr. Raja Basu Chowdhury, learned Counsel appearing on behalf of the petitioners submits that the requirements of Clauses (a) and (b) of the proviso appended to Rule 3 of Order 39 of the Code are mandatory in nature as such non-compliance thereof will certainly bring serious consequences. But the learned Trial Judge without appreciating the mandatory nature of the said provision of the Code extended the ad interim order of injunction instead not vacating the same. In support of his such contention he places reliance on the decision of the Hon'ble Apex Court in the case of A. VENKATASUBBIAH NAIDU VS. S. CHELLAPPAN AND OTHERS. reported in (2000) 7 SCC 695.
Mr. Durga Prasad Dutta, learned Counsel appearing on behalf of the opposite parties submits that the ad interim order of injunction was passed in the appeal and admittedly the copy of the memorandum of the said appeal along with the copy of the application for injunction filed in the said appeal have been served upon the petitioners which amounts to substantial compliance of the said provision of the Code.
Heard learned Counsel for the parties. Perused the materials on record.
The Court under Order 39 Rule 3 of the Code in all cases before grant of an order of injunction shall direct service of notice of the application for injunction to the party against whom an order of injunction has been prayed for.
The Court has however, the power to grant an order of injunction without effecting such service upon the said party where it appears to the Court that object of granting an injunction would be defeated by delay.
Therefore, grant of an order of injunction without giving notice to the party against whom such an order has been passed is an exception to the general rule.
The proviso appended to Order 39 Rule 3 of the Code mandates recording of reasons in an ex parte order of injunction for its opinion that object of granting the injunction would be defeated by delay.
It is now settled position of law that recording of reasons in such an order of injunction is mandatory. (See. in the case of SHIV KUMAR CHADHA VS. MUNICIPAL
CORPORATION OF DELHI AND OTHERS reported in (1993) 3 SCC 161, MORGAN STANLEY MUTUAL FUND VS. KARTICK DAS reported in (1994) 4 SCC 225).
The requirements of Clauses (a) and (b) to the proviso of Rule 3 of Order 39 of the Code being an integral part of the said proviso is mandatory in nature. Therefore, the party in whose favour an ex parte order of injunction is passed must comply with the requirements of the said clauses, non-compliance thereof cannot be without any consequence.
It has been held held by the Hon'ble Apex Court in the case of A. VENKATASUBBIAH NAIDU VS. S. CHELLAPPAN AND OTHERS. Reported in (2000) 7 SCC 695 that An order granting ex parte interim injunction can be deemed to contain the requirements set out in clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code 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 parte, fails to comply with the duties which he has to perform as required by the proviso 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 service of a copy of the plaint upon the party against whom an ex parte order of injunction has been passed, as required under Clause (a)(ii) of the proviso to Rule 3 of Order 39 of the Code cannot be substituted by service of an application for injunction on the ground that the averments of the said application is similar with that of the averments of the plaint of the suit inasmuch as to ascertain the existence of a prima facie case in granting an order of injunction in favour of the plaintiff, the entire plaint averments, cause of action of the suit and the relief sought for therein are required to be looked into.
In view of the discussion made above, the order impugned is set aside. This Court is informed by the learned counsel for the parties that the next date for hearing of the said appeal has been fixed on April 04, 2019.
The learned 13th Additional District Judge at Alipore before whom the said appeal is now pending is requested to dispose of the said appeal on the said date fixed and if it is not possible for him to dispose of the said appeal on the said date for any unavoidable reason, the same be disposed of within a week thereafter.
The learned Judge to adhere to the aforementioned time limit shall not entertain any prayer for adjournment from either of the parties.
The petitioners shall file their written objection to the injunction application filed in the said appeal within a week from date. The opposite parties are at liberty to file a rejoinder to the said written objection within three days after the service of the copy of the said written objection upon them.
It is, however, made clear that this Court has not gone into the merit of the said appeal and the application for injunction thereto and the learned Judge is free to decide the same in accordance with law within the stipulated time.
The time limit fixed by this order is mandatory and peremptory.
It is recorded that the plaint of this suit has already been served upon the petitioners on February 15, 2019 as submitted by the learned counsel for the parties jointly.
C.O. 1291 of 2018 is thus disposed of. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.