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Madras High Court · body

2000 DIGILAW 322 (MAD)

Mahalingam and another v. Mahalingam and another

2000-03-22

S.S.SUBRAMANI

body2000
Judgment : Defendants 1 and 2 in O.S.No.813 of 1998 on the file of District Munsif Court, Pollachi, are the revision petitioners. 2. Suit filed by the plaintiff was one for declaration that the petitioners are not entitled to any right of way or cart track through the plaint ‘A’ schedule property and for other reliefs. 3. Along with the suit, plaintiff filed I.A.No.2544 of 1998 for an order of interim injunction. Court below ordered notice on the injunction application and the defendants entered appearance on 21. 1999, on the day, when the case was posted for objection of the petitioners, they sought adjournment. Lower court did not grant adjournment, but passed the following order: “This petition is filed under O.39, Rule 1 and Sec.151, C.P.C. praying to grant an ad interim injunction restraining the respondents 1 and 2 from taking their carts and cattle through plaint ‘A’ schedule lands till the disposal of the suit. Counter of respondents 1 to 3 not filed. Petition is allowed. No costs.” The same is challenged in C.R.P.No.1394 of 1999. 4. After said order, petitioners moved I.A.No.330 of 1999 under Secs.141, 151 and O.9, Rule 7 of the Code of Civil Procedure. Lower court dismissed that application on the ground that the provision applicable is O.39, Rule 4 and correct provision of law is not stated therefore, the same is liable to be rejected. The same is challenged in C.R.P.No.1393 of 1999. 5. At the time, when the matter came up for admission learned Judge of this Court, ordered status quo. 6. I heard learned counsel on both sides. 7. Learned counsel for the petitioners submitted that the order, granting injunction is nullity since statutory provisions have not been complied with. 8. After hearing the counsel on both sides, I feel that the order of the lower court is liable to be interfered with. 9. In Shiv Kumar Chadha v. Municipal Corporation of Delhi , (1993)3 S.C.C. 161 their Lordships considered when an order of injunction is to be granted. 8. After hearing the counsel on both sides, I feel that the order of the lower court is liable to be interfered with. 9. In Shiv Kumar Chadha v. Municipal Corporation of Delhi , (1993)3 S.C.C. 161 their Lordships considered when an order of injunction is to be granted. In para.30 of the judgment, their Lordships 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 debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has bene 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.” In the same decision, in paras.34 and 35, their Lordships further reiterated that court also must record its reasons for granting injunction. It is true that in paras.34 and 35, their Lordships dealt with the power of court while granting ex parte order of injunction. But, according to me, the same principle have to be applied in this case also when the court is granting injunction only because the defendant did not file his objection. Paras.34 and 35 of judgment also read thus: “34. The imperative nature of the proviso has to be judged in the context of Rule 3 of O.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 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. 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 before exercising lower 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 O.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 provide by the 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 O.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 all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazir Ahmed v. Experor. Proviso to Rule 3 of O.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 all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazir Ahmed v. Experor. 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 Ramchandra Keshav Adki v. Govind Jot Chavad. 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 parte order is not passed.” [Italics supplied] 10. When the law provide that particular act has to be done only in a particular way, the court is bound to pass an order only in that way and not in any other manner. I have already extracted the order passed by the lower court. Merely because the defendant did not file a counter, it does not follow that the plaintiff is entitled to get an injunction. The plaintiff must satisfy the court that grounds have been made out for grant of an injunction. The lower court has not applied its mind while passing the impugned order, when the lower court has not considered whether the plaintiff has got a prima facie case or whether there is balance of convenience and what is the irreparable loss that is to be sustained unless order of injunction is granted, the order cannot stand in a court of law when the law says the grant of injunction can be only on satisfying certain conditions. The very jurisdiction of the court to pass order of injunction also rests on satisfaction of those grounds. In this case, the lower court has not given any reason for the grant of an injunction. It acted without jurisdiction. 11. After the injunction order was passed, petitioners moved an application to have the injunction application heard. The very jurisdiction of the court to pass order of injunction also rests on satisfaction of those grounds. In this case, the lower court has not given any reason for the grant of an injunction. It acted without jurisdiction. 11. After the injunction order was passed, petitioners moved an application to have the injunction application heard. It is true that they moved an application under Secs.141, 151 and O.9, Rule 7 of the Code of Civil Procedure, the lower court also understood the purpose of that application. The application was filed only to modify the order of injunction or to have the same vacated. Merely because of wrong provision of law was quoted. The lower court should not have dismissed that application. Both parties know that the application was filed only to pass final order in the injunction application after set aside the earlier order. Dismissal of that application on the ground that a wrong provision of law has been quoted is also an illegality committed by the court below. 12. At this juncture, learned counsel for the respondents submitted that against the order dated 21. 1999, an appeal lies. The argument is, it is not an ex parte order, but an order after defendants hence entered appearance and therefore, revision is not maintainable. I do not find any substance in that argument. This Court is exercising the power of revision or the supervisory jurisdiction only to see that the courts below are acting the accordance with law. If the courts below have ignored the provisions of law or the law declared by the Hon’ble Supreme Court and has passed an order, which causes manifest injustice to the party, merely because an appeal lies against the order, that cannot be a ground to hold the revisional jurisdiction is not to be exercised. According to me, against the order dated 21. 1999, no appeal also will lie since it is not an order in the eye of law. There is no adjudication or a finding, why the court is exercising discretionary power for granting injunction. Nonappearance of the defendants or non-filing of their objection, if not a ground for granting injunction. In this case, the court below have exercised jurisdiction arbitrarily and the order is perverse. There is no adjudication or a finding, why the court is exercising discretionary power for granting injunction. Nonappearance of the defendants or non-filing of their objection, if not a ground for granting injunction. In this case, the court below have exercised jurisdiction arbitrarily and the order is perverse. A learned Judge of this Court in P.Ramaswamy v. Sri Dhandayuthapani Finance, Sankari P.Ramaswamy v. Sri Dhandayuthapani Finance, Sankari P.Ramaswamy v. Sri Dhandayuthapani Finance, Sankari , A.I.R. 1986 Mad. 360 has held that merely because an appeal is maintainable, the power of the court under Sec.115, C.P.C. is not ousted. According to me, when manifest injustice is done, that will be a ground to invoke the revisional jurisdiction of this Court. 13. In the result, the impugned orders are set aside and both the C.R.Ps. are allowed. No costs. C.M.P.No.7745 of 1999 is closed. Court below is directed to pass order in the injunction application afresh after hearing both sides.