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2000 DIGILAW 26 (JHR)

Steel Authority Of India Ltd. v. Amit Construction

2000-12-01

VINOD KUMAR GUPTA

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ORDER V.K. Gupta, A.C.J. 1. This Revision petition is directed against the order dated 20th September, 2000, passed by the learned 1st Additional District Judge, Bokaro in Misc. Appeal No. 51/2000, whereby, even while issuing directions to the trial Court to hear the injunction application on 23rd, September, 2000, he summarily and cryptically rejected the petitioners prayer for setting aside the status quo granted by the trial Court on 7th, September, 2000. 2. As per the office note, the respondent No. 1 has been served, but no one appears on its behalf. 3. I have heard the learned counsel appearing for the petitioner. 4. Very disturbingly and distressingly I find that the trial Court, by violating all norms, based an ex parte ad interim injunction order in favour of the plaintiff and against the petitioner-defendant with regard to the maintenance of status quo, bul without recording any reasons as to how and why the trial Court was granting an ad interim injunction at an ex parts stage without issuing notice and without hearing the defendant in the suit. More distressingly I find that the appellate Court i.e., learned 1st Additional District Judge, even while preponding the injunction application to 23rd September, 2000 rejected summarily the petitioners prayer for setting aside the status quo order even though the petitioner had repeatedly advanced arguments to show as to how and in what manner the status quo order was causing acute hardships to the petitioner and was working to its grave prejudice. It was the bounden duty of the learned 1st Additional District Judge to have taken into consideration these submissions of the petitioner and should have recorded reasons as to why was it not inclined to allow the petitioners prayer for setting aside the status quo order. 5. It is now an established principle of law that in all cases where a plaintiff asks a trial Court for grant of an ex parte ad interim injunction, in respect to the subject- matter of a suit filed by him in that Court, the trial Court must issue notice to the defendant to show cause as to why injunction be not granted and only after hearing the defendant an order can be passed granting or refusing the temporarily injunction as prayed for by the plaintiff. It is only because of the proviso to Rule 3 of Order 39 of the Code of Civil Procedure that the Court has the jurisdiction and power to grant an injunction without giving notice to the defendant about the plaintiffs application but the Court shall do so only by recording reasons for its opinion that the object of granting injunction can be defeated by delay. Any order passed by a Court, therefore, granting ex parte ad interim injunction without observing the aforesaid mandatory requirement of law is bad and illegal. In the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors, reported in (1993) 3 Supreme Court Cases 161, their Lordships of the Supreme Court while dealing with this important legal question observed as under :-- "32. Power to grant injunction is an extra-ordinary 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 bo 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 itsopinion that the object of granting the injunction would be defeated by delay....." 33. It has come to our notice that inspite of the aforesaid statutory requirement, the Courts have been passing orders of in- juncrjon 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 madeby 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 is said that if the reasons for grant of injunction are mentioned, a grievance can be madeby 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 applica-tion has no bearing 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." After thus analysing the requirement for issuing notice based on the observance of the legal principle ex debito justitiae and the requirement of the Legislature introducing proviso to Rule 3, their Lordships finally held as under :-- "35. 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 parie order is not passed. But any such ex parts order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned." In the Supreme Court Practice 1993, Vol. l at page 514, reference has been made to the views of the English Courts saying : "E.x parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion..... An ex parte injunction should generally be until a certain day, usually the next motion day....." 6. l at page 514, reference has been made to the views of the English Courts saying : "E.x parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion..... An ex parte injunction should generally be until a certain day, usually the next motion day....." 6. There is little doubt, therefore, that the trial Court committed a patent illegality in granting ex parte ad interim injunction, about maintenance of stains quo, without issuing notice to the defendant and without observing the aforesaid mandatory requirement of recording reasons as to how, why and in what manner the object of granting injunction itself shall be defeated if the ex parte order is not passed. 7. On going through all the relevant aspects of the matter, as far as the facts in one case go, I find that in a situation where a contract period already granted has expired and a new contract has been awarded, passing of a status quo order with respect to the subject-matter of such a contract with which the outgoing contractor had nothing to do was totally and wholly unjustified. I accordingly, while allowing this petition set aside both the order passed by the Courts below, namely, the order dated 20th September, 2000, passed by the 1st Additional District Judge and the one dated 7th September, 2000 passed by the learned Munsif, Chas, in Title Suit No. 58/2000.1 further direct that the injunction application filed by the plaintiff in the suit shall be heard on its merits by the trial Court and order passed thereon after the petitioner and other defendants in the suit file objections to the injunction application, if not already filed, and after the parties are heard. 8. The Registrar of this Court is directed to circulate this judgment to all the courts in the State for their taking note of the observations with regard to the trial Court not granting ex parte ad interim injunction without recording reasons as to why the grant of ex parte ad interim injunction would frustrate the purpose for which the said application is filed and by taking into account the law laid down by the Apex Court and by following the guidelines in the case of Shiv Kumar Chadha v. Municipal Corporation Delhi and others (supra) on the subject. This petition is allowed, with the aforesaid directions. This petition is allowed, with the aforesaid directions. No order as to costs. 9. Petition allowed.