Thingujam Ningol Shakhi Devi vs Longjam Suranjoy Singh

H.K.K. Singh, J.—The petitioner herein has brought a suit being Matrimonial (Injunction Suit) No. 18/2002 in the Family Court, Manipur praying for the relief of permanent injunction restraining the respondent No. 1 from marrying respondent No. 2 on the ground that the petitioner is the legally married wife of respondent No. 1 and their marriage relationship is still subsisting. Alongwith the said suit an application for temporary injunction was made on the date of filing of the suit, i.e., on 26.6.2002 and on the same day an ex parte temporary injunction order was issued restraining respondent No. 1 and No. 2 from performing their marriage ceremony on 1.7.2002 respondent No. 1 approached the Court praying for vacating the temporary injunction order on the ground that the petitioner had not complied with the mandatory requirements of law as provided for in the proviso appended to Rule 3 order XXXIX of CPC. This matter was registered as Judicial Misc. Case No. 58/2002 and the learned Judge, Family Court passed the impugned order dated 1.7.2002 thereby vacating the temporary injunction order passed on 28.6.2002 after hearing the parties.

By this Application under Article 227 of the Constitution, the petitioner had approached this Court praying for invoking the Constitutional power to intervene in the matter complaining, inter alia, that a great injustice has been caused to the petitioner herein as a result of the impugned order which is not tenable in law.

At the outset Mr. N. Ibotombi, learned counsel for the respondents has raised technical objections contending that u/s 19 of the Family Court''s Act an Appeal lies against the aforesaid order of injunction which includes setting aside or vacation of temporary injunction order that had been passed ex parte and as such the High Court may riot exercise the Constitutional power. In support of the submission the learned counsel has relied upon some of the decisions including one decision of our High Court reported in 1998 (1) GLT 323 and some other decisions.

Mr. Modhu, learned counsel for the petitioner on the other hand has submitted to the Court that in view of the fact that no Division Bench will be available in this Bench for sometime now (for the whole month of July, 2002 as per Constitution of Bench) the petitioner has been compelled to approach this Court for the aforesaid Constitutional power of this Court.

Here law is settled that High Court will not ordinarily exercise the Constitutional, jurisdiction under Article 226/227 if a Statutory provision of Appeal or revision is/are available. But depending upon the facts and circumstances of the case to prevent miscarriage of justice, the Constitutional power may be and has to be exercised in fit cases. In the present case even if the impugned order of temporary injunction (vacation of temporary injunction order) may be appealable under the provisions of Section 19 of the Act (hereinafter the Act) still, the Constitutional power under Article 227 may be exercised in view of the order that I am going to pass and considering the matter that it is a matter arising out of matrimonial matter.

It is true that under the provision of order XXXIX Rule 3 of the CPC a proviso has been inserted by Amendment Act being No. 104 of 1976, by which a Statutory provision has been made requiring the party in whose favour the injunction order have been made to perform certain acts, the relevant provision is extracted below :

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 requiring 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 applications ;

(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 so sent.

Mr. Modhu, has submitted that the order was passed at the late hour of the Court and as such, the requirement of delivering or sending those papers as provided for under Clause (a) could not be done on that day as the copies could not be obtained on that date, and when the copies were available on the next day, i.e., on 29.6.2002 at about 12 noon the Post Office was found closed and as such, the next day also being holiday, the papers could only be sent by registered post on 1.7.2002. These factual averments are controverted by Mr. N. Ibotombi, contending interalia that in the affidavit filed on 1.7.2002 nonavailability of the copies of the injunction order has not been disclosed and the learned Judge, Family Court vacated the temporary injunction order only on the ground of non-compliance of the requirement of law as noted above.

The point to be decided here in this case is the consequence of non-compliance of the Statutory provisions if there has been any. In the case of A. Venkatasubbiah Naidu Vs. S. Challappan and Others, the Supreme Court has held at para 13 as under :

"13. What would be the position if a Court which passed the qorder 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 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 parte, 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 obly 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."

The above decision of the Apex Court clearly indicates that the party in whose favour injunction order has been granted has to fulfil the statutory requirements, if he fails to comply with the requirements of law, the risk is his. The Apex Court has not categorically came to the conclusion that the non-compliance of the statutory requirement of proviso, to Rule 3 of Order XXXIX CPC entails vacating the injunction order or that the injunction order itself becomes none-est. Then the only consequence of such a non-fulfilment of the statutory requirement may be that if the party to whom a direction or injunction has been issued may not be bound by the order of injunction until the order is made known to him or in other words unless and until the order has been communicated to the party so that he has got the full knowledge of the order. At this juncture a three Bench decision of the Supreme Court in the case of Mulraj Vs. Murti Raghonathji Maharaj, may be referred to. The Apex Court in this case held that injunction order must be communicated to the party to whom injunction order has been issued and an order or injunction is generally issued to a party who has been forbidden from doing certain acts, and it is well settled that inasmuch as the other party must have knowledge of the injunction order before it can be penalised for disobeying it.

The Court while considering the injunction order which is originally of equity jurisdiction may consider the conduct of the party and the fact that the one who has obtained an injunction order has failed to perform the requirements of law may be a relevant fact at the time of consideration for vacating or modifying or even confirming of the injunction order, but non-compliance of the requirements of law as required by proviso to Rule 3 of Order XXXIX CPC does not perse makes the temporary injunction order none-est. This is for the reason that if the one who obtained an injunction order fails to perform duty, the other party who has been prohibited from doing certain things may not have the knowledge of the injunction order, and as such, that party may not be penalised for disobeying the injunction order.

For the aforesaid reasons/observations I am of the opinion that the learned Judge, Family Court should not have vacated the temporary injunction order only on the sole ground of non-compliance of the proviso to Rule 3 of Order XXXIX CPC. More so when the requirement of law was complied with on 1.7.2002 and affidavit to that effect was filed on that date. The factum of intervening holidays being Sunday and also close of the Post Office at about 12 Noon on Saturdays should have been considered.

In view of the conclusion, and considering the nature of the case I am inclined to invoke the power of the High Court under Article 227 and set aside the impugned order of the learned Judge, Family Court and I do so accordingly.

Before parting, it is clarified that the learned, Judge, Family Court may proceed with the case in accordance with the provision of law as provided, and decide the matter of vacating or otherwise, of the temporary injunction order by giving both the parties proper right of hearing.

Accordingly the petition is disposed of.

As it is submitted by the learned counsel that the next date for hearing the matter is on 15.7.2002, send the records back immediately.