A. Chinnarajan v. N. S. Subbaiyah and others — 1998 DIGILAW 198 (MAD)

Judgment : .1. This Revision under Article 227 of the Constitution of India, is filed by the first defendant in O.S.No.100 of 1997, on the file of Sub Court, Palni. Two plaintiffs, who are respondents herein, filed the said suit, to direct the first defendant to surrender possession of the property to the plaintiff’s and directing him to pay a sum of Rs. 3,000 being the value of firewood and sized timber to the plaintiffs, with interest at 18% per annum from date of suit till payment, and also to direct an enquiry int o the past and future mesne profits under Or.20, Rule 12, C.P.C., and to grant permanent injunction restraining the first defendant and his men from putting up any further construction in the suit property, and also award costs of the suit, and grant such further reliefs. 2. Facts narrated in the plaint may briefly be stated thus:- First plaintiff is the son of late N.R.S. Ramasamy Chettiar. Between himself and his father, there was a partition on 25. 1964. Plaint schedule property was one of the items allotted to his father late N.R.S. Ramasamy Chettiar. It is not disputed that pursuant to the partition, Ramasami Chettiar had obtained absolute right and exclusive right over the same. It is seen that Ramasami Chettiar executed a will on 30.1.1980, bequesthing all his properties to the second plaintiff herein, who is also the son of the first plaintiff. There was difference of opinion between first plaintiff and his father. The will was cancelled. The father began to deal with the property and sold the plaint schedule item to a third person. There was a suit filed by the very same first plaintiff as O.S.No.183 of 1988, on the file of Subordinate Judges, Periakulam. That suit was to restrain the late father, by a permanent prohibitory injunction from alienating or dealing with the properties retained by him and also from interfering with the possession of those properties by the first plaintiff herein. In that suit, the plaint property was not an item. In that suit, it was further stated that the father has already executed a sale deed, in favour of a stranger, and the first plaintiff reserves his right to have the same impeached in appropriate proceedings. In that plaint, the first plaintiff herein also referred to a family arrangement dated 1. In that suit, it was further stated that the father has already executed a sale deed, in favour of a stranger, and the first plaintiff reserves his right to have the same impeached in appropriate proceedings. In that plaint, the first plaintiff herein also referred to a family arrangement dated 1. 1987 and the allegation was that the father is alienating the properties violating the terms of the family arrangement. .3. A detailed counter affidavit was filed by the father in that suit, wherein he admitted the execution of the family arrangement of 1987 and the circumstances under which he had revoked the will already executed by him. He also contended that he continued to be the absolute owner of all the properties obtained by him under the 1964 document, and the so called family arrangement never came into effect, and it is an unregistered deed. .He also denied having received any amount from the first plaintiff, but contended that certain documents were fabricated by the first plaintiff, exploiting his weakness and old age. He also alleged that he is residing away from the first plaintiffs house and the first plaintiff was also not maintaining him ever since the date of the so-called family arrangement. He also said that all the properties excepting one that has been sold by him continues in his possession. 4. The suit was not prosecuted further since there was a compromise. As per the terms of the compromise, first plaintiff declare that his father is the absolute, owner of all the properties scheduled to that plaint, and his father who is now more than 80, is not in a position to manage the same and, therefore, those properties are entrusted to the first plaintiff so that out of the income, first plaintiff should maintain his parents. Certain amounts were also directed to be paid annually. He also declared that those properties will ultimately go to his grandson, who is the second plaintiff herein. The father also agreed that he will not alienates the properties. A compromise decree was passed on 13. 1992. 5. Subsequently the father died. The present suit is filed by two plaintiffs in regard to the property which was not the subject matter of the earlier litigation, and which was already alienated by the father. The contention of and the I.A. was renumbered as I.A.No.308 of 1997. .6. A compromise decree was passed on 13. 1992. 5. Subsequently the father died. The present suit is filed by two plaintiffs in regard to the property which was not the subject matter of the earlier litigation, and which was already alienated by the father. The contention of and the I.A. was renumbered as I.A.No.308 of 1997. .6. First defendant entered appearance and filed a counter immediately after the case was transferred to Palni Court. The interim order is dated 25. 1997. After the receipt of notice, first defendant entered appearance and the case was posted to 15. 1997 on which date he entered appearance and also filed a counter. An application was filed by the plaintiffs for having the injunction extended, which was also granted till 9. 1997. On 9. 1997, the Lower Court endorsed that counter has already been filed, but the matter was adjourned for enquiry and disposal. It was being adjourned from time to time for one reason or other. In the meanwhile, first defendant filed an application for appointment of a Commissions" to verify as to what is the stage of construction. In view of the pendency of that application, the interim injunction was also being extended from time to time. First defendant also filed his written statement on 19. 1997, and along with the same, first defendant also filed all the documents and also photographs the plaintiffs is that they came into possession on the basis of the family arrangement entered into on 11. 1997. The first defendant, who is a neighbour, was attempting to knock off all the property by same hook or crook, and with that intention, trespassed into the same and wanted to put up construction. 7. Along with the suit, plaintiffs also moved T.A.No303 of 1997 to restrain the first defendant herein from putting up any construction in the plaint schedule property. The property was described as vacant land, and in the affidavit filed in support of the injunction application, it was stated that the first defendant is going to construct a building, and if the same is allowed plaintiffs will be put to hardship. It was also stated that the first defendant trespassed into the property on 27. 1988 and he is a person without any title. An ad interim injunction was granted by the lower Court restraining the first defendant from putting up any construction in the suit property. It was also stated that the first defendant trespassed into the property on 27. 1988 and he is a person without any title. An ad interim injunction was granted by the lower Court restraining the first defendant from putting up any construction in the suit property. 8. It will not be out of place to state that the suit was filed before the Vacation Civil Judge, Dindigul. At that time, the suit was numbered as O.S.No.28 of 1997, and the injunction Application was numbered as I.A.No.35 of 1997. Subsequently, it was transferred to Sub Court, Palni, where the suit was renumbered as O.S.No.100 of 1997 which were taken months back, to prove the stage of construction. In between, there was a police complaint filed by the first defendant against the plaintiffs. Plaintiffs also moved for contempt against the first defendant for alleged violation of the injunction order. At any rate, the ad interim injunction which was granted in May, 1997 was in force till the civil revision petition was filed. Various attempts made by the petitioner to have the same vacated, failed. It is under these circumstances, first defendant came to this Court with a grievance and filed this revision under Article 227 of the Constitution of India. .9. In the counter affidavit to the injunction application, it was stated by the petitioner that the first plaintiff’s late father who was admittedly having absolute title over the property, alienated the same for valuable consideration and from the purchaser, he has taken the document in 1988, and ever since that date, he is in exclusive possession. An absolute owner having alienated the property, without setting aside the same, relief for recovery of possession cannot be granted. It was further alleged th at long before the institution of the suit, he has made arrangements for construction of the building. The ground floor and first floor of the building have already been constructed, and the plastering alone is required to be done, and, if at this stage, he is restrained from proceeding further with the construction,he will be put to irreparable loss. The allegation of trespass by the plaintiff was also denied. It was further contended both in the counter as well as in the written statement that the plaintiffs have no prima facie case. The allegation of trespass by the plaintiff was also denied. It was further contended both in the counter as well as in the written statement that the plaintiffs have no prima facie case. The balance of convenience and the irreparable loss are only with the petitioner, if the injunction is allowed to continue. At any rate, since he is in possession from 1988, and has already progressed with the construction, the same cannot he restrained in a single suit for recovery. 10. At the time when the matter came for admission, on 212. 1997, I ordered notice of motion, and the ad interim injunction granted by the lower Court was suspended till 2. 1998. After the respondents entered appearance, they wanted the status quo to be maintained and, therefore, I gave a direction on 21. 1998 that status quo as on that date will be maintained till the disposal of the revision. 11. I heard learned counsel appearing for both parties, in detail, and fact, both of them argued the Injunction Application itself, and they did not confine their arguments to the scope of ad interim injunction. Though under Article 227 of the Constitution of India, ordinarily I need only consider the legality of the impugned Order, when both the learned counsel argued the entire injunction application itself, and when they have produced copies of various documents on which they placed reliance, it will be improper on my part if I do not consider the application on merits. At this stage, I may further make it clear that I am expressing only a prima facie opinion on the basis of the materials available before me, and I further make it clear that the conclusion arrived at by me for this injunction matter is only tentatived, and the lower Court is bound to take into consideration the merits of the case, untrammelled by any of the findings entered by me, for the purpose of granting or negativing the relief of injunction. The lower Court shall not get itself influenced by these tentative findings. My scope of enquiry is only under Or.30, R.1, C.P.C., and not beyond that. I may also add that both the learned counsel wanted the injunction application itself to be disposed of. .12. The lower Court shall not get itself influenced by these tentative findings. My scope of enquiry is only under Or.30, R.1, C.P.C., and not beyond that. I may also add that both the learned counsel wanted the injunction application itself to be disposed of. .12. A preliminary objection was raised by learned counsel for the respondents that the petitioner herein is not entitled to be heard unless he purges himself from the contempt for which proceedings have been initiated against him. He also contended that when the petitioner comes before Court with a revision under Art. 227 of the Constitution, his conduct also requires consideration, and in this case, violating the order of injunction he has proceeded with the construction, and that is an important point which this Court should take note of, to refuse to exercise the discretionary power under Art. 227. 13. I do not think the preliminary objection raised by the respondents is correct. The case put forward by the petitioner herein is that long before the institution of the suit, he has made preparation for the construction. The construction of the ground floor as well as the first floor are over. They are at the finishing stage. Second floor is yet to be constructed, and it is at this stage, the ad interim injunction was granted. It is further stated that in the suit, the schedule of property is described as a vacant land, which is apparently a false case. Plaintiffs, who are residing closely, were well aware of the construction, even months before the suit was instituted. He also contended that before the Court below, all the photographs taken on 24. 1997 were produced, to show the construction as on that date. It was nearly a month thereafter, the suit was instituted. The construction proceeded beyond what is seen in the photographs, dated 24. 1997. The further contention is that if only those things had been brought to the notice of the lower Court regarding the actual state of affairs, the lower Court would not have granted the interim order of injunction. He also said that after the interim injunction order was obtained, he never proceeded with the construction, and the construction proceeded only after I suspended the Order on 212. 1997. It is also stated that when status quo was ordered to be maintained, on 212. 1997,the construction was not proceeded. He also said that after the interim injunction order was obtained, he never proceeded with the construction, and the construction proceeded only after I suspended the Order on 212. 1997. It is also stated that when status quo was ordered to be maintained, on 212. 1997,the construction was not proceeded. To prove the bona fides of the said contention, learned counsel also relied on his conduct, namely, that immediately after the counter affidavit, to to substantiate his conduct regarding the stage of construction, he wanted the issuance of a Commission which was tooth and nail opposed by the respondents herein. The lower Court did not pass any Order on the same. In the mean-while, Contempt Application was also moved by the respondents. It is, therefore, contended by him that he has not come to Court for any relief, but only to have the ad interim injunction vacated. The question of purging himself from any contempt also, therefore, does not arise. His conduct his beyond any criticism. It is the plaintiff who have come forward with a false case by playing fraud on Court. The Court was made to believe that no construction was made, and this prompted the lower Court to grant the interim Order. 14. At this stage, I may say that there is no evidence in this case to show that after the injunction order was obtained, the petitioner proceeded with the construction, violating that Order. Attempt was made by petitioner to show the stage of construction, and also to show that there was no change after the injunction order. But he was prevented from doing so. At least, the respondents could have proved it by acceptable evidence. 15. Mere allegation of contempt is not sufficient to hold that the petitioner herein has violated the order and proceeded with the construction. In this connection, the decisions of this Court and also other High Courts will be of some importance. 16. In Palaniappa Chetty v. Raman Chettyand others , AIR 1929 Madras 672, this Court held thus: "....What happened thereon does not appear from the report. The other case "relied on is Gardon v. Gordon, 20 TLR 272; in the circumstances of that case it was held that the party in contempt could be heard. 16. In Palaniappa Chetty v. Raman Chettyand others , AIR 1929 Madras 672, this Court held thus: "....What happened thereon does not appear from the report. The other case "relied on is Gardon v. Gordon, 20 TLR 272; in the circumstances of that case it was held that the party in contempt could be heard. In the course of the judgment, Vaughan, Williams, L.J. thus observed: "Taking it generally it has not been disputed in the discussion before as that this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part when he comes and asks for something, and not to cases in which all that he is seeking is to be heard in respect of matters of defence." This observation is entirely applicable to the facts of this case. The petitioner wishes to be heard in prosecution of his own appeal, that is to obtain a decree in accordance with the relief sought in his plaint. It is clearly different from the facts of Gordon v. Gordon, 20 TLR 272 where the order had been passed against the defendant with regard to payment of a sum of money and that the defendant was allowed to be heard against such an order. This being so, it is clear that the petitioner until he purged his contempt could not be heard in prosecution of his appeal." In that judgment, their Lordships had made reference to a decision in Gordon v. Gordon , 20 TLR 272 wherein also similar question came for consideration. The relevant portion reads thus:-"(Learned Judge), after referring to the act of contempt as stated in the affidavit of Sir George Lewis, said that the question was whether the preliminary objection ought to prevail. In this opinion, it ought not. Many cases had been cited, but he did not think it necessary to go through them. There were some general principles which applied to the case. Speaking generally, it was not disputed should not he heard prima facie applied to voluntary motions on his part-applicants when he was coming to ask for something -not when he was asking to be heard by way of defence. Not "that every matter of defence entitled a person he was in contempt to be heard. Speaking generally, it was not disputed should not he heard prima facie applied to voluntary motions on his part-applicants when he was coming to ask for something -not when he was asking to be heard by way of defence. Not "that every matter of defence entitled a person he was in contempt to be heard. If, for instance, an order had been made in the exercise of the discretion of the Court, and a person who was in contempt said that the Court had exercised its discretion wrongly, he would not be heard until he had purged his contempt. But if there was an order as to which it was suggested that it might have been made without jurisdiction, and on looking at the order you could see that there was really the ground of the appeal, it seemed to his Lordship that such a case had always been treated as one in which the Court would entertain the objection, even though the person who made it was in contempt. It was admitted that if the order complained of was the very one which had created the contempt, and the objection to it was of the character to which his Lordship had referred, the fact that the person who was objecting was in contempt would not prevent his being heard. Here, according to the respondents own evidence, the contempt was committed before the order appealed from was made. The simple question for decision was this -an order was made the objection to which was not one which depended on an exercise of the "discretion of the Court. It was said that it was unlawful to make such an order as to the separate property of a married woman which was subject to a restraint of anticipation, and it was said, on the other hand, that the Court ought not to hear this objection because the appellant was in contempt. The nature of the objection being that the order was illegal, His Lordship thought there was no rule which prevented the appellant being heard. If the order was in fact illegal, and the Court were to refuse to hear the appeal, His Lordship did not think there would be any opportunity of questioning the order hereafter. It would not be right for the Court to allow the order to continue in force without first determining the question of its legality. 17. If the order was in fact illegal, and the Court were to refuse to hear the appeal, His Lordship did not think there would be any opportunity of questioning the order hereafter. It would not be right for the Court to allow the order to continue in force without first determining the question of its legality. 17. In Dr. Madan Gopal Gupta v. The Agra University and others, AIR 1974 All. 39 and S.S. Roy v. Damodar Vallay Corporation and others, AIR 1974 Cal. 69 , this question was considered in detail. In the Allahabad decision, it was held thus:- "The above authorities make it amply clear that the drastic step of striking out the defence and denial of hearing to a party in contempt is an extreme penalty which is enforced only in those cases where an act of a party in contempt impedes the course of justice or that justice in the cause cannot be done without compliance of the courts order, but the party in contempt is entitled to challenge the validity of the order and the jurisdiction of the court passing the order itself. The party in contempt may not be entitled to take advantage of its own action in the same cause without purging the contempt but such a party is entitled to defend itself. There is considerable difference in the right of a party in contempt for bringing an action into Court of law, and his right to defend himself before the Court. In former case, the party in contempt is not entitled to bring an action before a Court of law or to take advantage of its contemptuous act in the same cause or proceeding but in the latter case such a party is entitled to defend itself and to question the jurisdiction of the Court passing the order in respect of which contempt may have been committed. 18. In the second decision referred to supra, the Calcutta High Court has taken the following view: "The point raised is undoubtedly of an old vintage, coming down the corridor of time and going back many centuries in our law. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimature of judicial decisions. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimature of judicial decisions. It is pertinent therefore to refer to the backdrop against which this principle arises. That a party in contempt will not be heard was never a rule of the common law, but as was observed by Lord Justice law, which was adopted by the ecclesiastical Court and the Chancery Courts". This history of the rule in Chancery, as it appears from Beams Orders in Chancery page 35, shows that it originated in the 78th Ordinance of Lord Bacon of 1618. It laid down that "they that are in contempt are not to he heard, neither in that suit nor any other, except the Court of special grace "suspend the contempt." It also appears from Allbert on Forum Romanum 102 that Lord Chief Baron Gilbert laid it down as a general rule that "the contemner, who is in contempt, is never to be heard by motion or otherwise till he has cleared his contempt and paid the costs." The Ordinance of Lord Bacon though used for enforcing orders in Chancery was never applied unless the contempt had been established by the issue of a writ of attachment or an order for cramittal. It is only then that the party became a party in contempt and the Court would not hear him. The said ordinance however and the limitations referred to above were found to be capable of working great injustice and as was observed by Lord Justice Denning in (1952) 2 All ER 567 "in the course of practice, it came to be much restricted in scope. It was confined to cases where a party in contempt, i.e., a party against whom a writ of attachment had been issued or an order of committal had been made, came forward voluntarily and asked for an indulgence in the same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings." It is pertinent in this context to refer to Daniyers "Chancery Practice" (7th Edn. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings." It is pertinent in this context to refer to Daniyers "Chancery Practice" (7th Edn. Vel.l) page 725 that "a party in contempt for non-obediance to an order in one cause will not be thereby prevented from making an application to the Court in another cause relating to a distinct matter, although the party to such other, cause may be the same". In the case of Taylor v. Taylor, (1849) decided by 1 Mac. & G. 397-41 ER 1318) it was observed that "the circumstances of the plaintiff being out of the jurisdiction and in contempt for non-compliance with the decree made, did not prevent his filing the "bill in question". The observation of Lord Cottenham, L.C. were approved of again and again in a series of cases. It has been stated in Halsburys Laws of England (3rd Edn.) Vol.8, Section 4, Paragraph 73 that "probably the true rule is that party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing the obedience". "Lord Justice Denning also observed ultimately after discussing the history of the principle in (1952) 2 All ER 567 already referred to above that "applying this principle, I am of opinion that the fact that a party to a cause has disobeyed and order of the Court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues, it impedes the course of justice for the cause, by making it more difficult for the Court to "ascertain the truth or to enforce the orders which it may make then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed". I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharya stands qualified as above". 19. In Halsburys Laws of England - Fourth Edition -Volume 9, dealing with Contempt of Court, it is stated (in para 106) thus: "Position of party in contempt. I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharya stands qualified as above". 19. In Halsburys Laws of England - Fourth Edition -Volume 9, dealing with Contempt of Court, it is stated (in para 106) thus: "Position of party in contempt. The general rule is that a party in contempt, that is a party against whom an order for a committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt, nor while he is in contempt can he be heard to appeal from any order made in the cause but this is subject to exceptions. Thus a party in contempt may apply to purge the contempt, he may appeal with a view to setting aside the order in which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings. Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt, and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obediance. From the above decisions, it is clear that the preliminary objection raised by the respondents cannot be accepted. That apart, there is also a discretion which the Court has to exercise, to decide whether a party in contempt should be heard or not, and may, in its discretion, refuse to hear a party only on those occasions when his contempt impedes the course of justice. (Italics). 20. I do not think the petitioner is to be condemned on the basis of this allegation alone without any proof. To refuse to hear a party merely on the basis of the allegation of contempt or disobedience of Court is not proper. There must be clear and cogent evidence that the party has violated the Order. Learned counsel for the respondents was not successful in placing any material regarding the same except for production of certain photographs which were taken subsequent to my order where I suspended the interim order. 23. There must be clear and cogent evidence that the party has violated the Order. Learned counsel for the respondents was not successful in placing any material regarding the same except for production of certain photographs which were taken subsequent to my order where I suspended the interim order. 23. Now that the preliminary objection is overruled, the question that requires consideration is, whether the respondent herein are entitled to get an injunction. In this connection, it may also be noted that what is the nature of the Order that was passed by the lower Court. It is an on sentence order: "Heard. interim injunction Notice". 23. In Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, 1993 (3) SCC 161 , in para 30 of the judgment, Their Lordships considered the circumstances under which a temporary injunction could be granted. It was 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 debits justitials. 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." Paragraphs 32 to 35 of that judgment read thus:- "Power to grant 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 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. 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 Civil Procedure Code (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. ...". It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no hearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the Proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. 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.