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2001 DIGILAW 91 (CAL)

K. C. GEORGE v. GOURI SHANKAR MISHRA

2001-02-22

ALTAMAS KABIR, GORACHAND DE

body2001
ALTAMAS KABIR, J. ( 1 ) THIS appeal is directed against Order No. 2 dated 5th September, 2000, passed by the learned Additional district Judge, Contai, District- Midnapore, in title Suit No. 3 of 2000, granting ad interim order of injunction on the plaintiffs' application for temporary injunction, till the disposal of the said application. ( 2 ) APPEARING for the appellant, Mr. Amitava Ghosh submitted that the impugned order was per se bad having been passed exparte without compliance with the provisions of Rule 3 of Order 39 of the Code of Civil procedure which requires the court to record reasons while granting an ex-parte order of injunction. Mr. Ghosh submitted that the law relating to grant of ex-parte orders of injunction had been clearly explained by the Hon'ble supreme Court, in Shiv Kumar Chadha vs. Municipal Corporation of Delhi and Ors. , and in Morgan Stanley Mutual Fund vs. Kartick das. ( 3 ) MR. Ghosh submitted that in shiv Kumar Chadha's case the Hon'ble Supreme court had observed that before passing an order of injunction the court has to 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. The Hon'ble Supreme Court went on to observe that the courts have to be more cautious when the said power is exercised without notice or hearing the party who is to be affected by such ex-parte order. The Hon'ble supreme Court also had occasion to refer to the Civil Procedure Code (Amendment) Act, 1976, whereby a proviso had been added to rule 3 of Order 39 indicating 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. Mr. Mr. Ghosh submitted that after considering the imperative nature of the proviso and the principles laid down in earlier decisions, the Hon'ble Supreme Court finally concluded that whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to the 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 would be defeated if an ex-parte order was not passed. Furthermore, such ex-parte order should be in force upto a particular date before which the plaintiff should be required to serve notice on the defendant concerned. Mr. Ghosh submitted that in the morgan Stanely Mutual Fund case the Supreme Court while considering certain provisions of the Consumer Protection Act, 1986, also had occasion to consider the provisions relating to grant of ex parte ad interim orders of injunction. Mr. Ghosh submitted that among several questions posed by the Hon'ble supreme Court in the said decision, one of the questions related to the guiding principles in relation to the grant of ad interim injunction in areas concerning the functioning of the capital market and public issues of the corporate sector and whether certain 'venue restriction clauses' would require to be evolved judicially as has been done in cases such as the sanchaita case. Mr. Ghosh submitted that while answering such question the Hon'ble Supreme Court observed that as a principle, ex-parte injunction could be granted only under exceptional circumstances. Mr. Ghosh submitted that while answering such question the Hon'ble Supreme Court observed that as a principle, ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex-parte injunction are:-" (A) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than the grant of it would involve; (c) the court will also consider the time at which the plaintiff first- had notice of the act complained so that the making of improper order against a party in his absence -is prevented; (d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex-parte injunction; (e) the court would expect a party applying for ex-parte injunction to show utmost good faith in making the application; (f) even if granted, the ex-parte injunction would be for a limited period of time; (g) general principles like prima facie case, balance of convenience and irreparable loss would be considered by the court. " ( 4 ) MR. Ghosh urged that in the present case no reason whatsoever have been given by the learned court below in passing the ad interim order of injunction which had far reaching consequence as far as the appellant was concerned. Mr. Ghosh urged that the decision in the two aforesaid cases squarely covered the facts of the present case and the impugned order which had been passed without recording any reasons, therefor, was liable to be set-aside ( 5 ) APART from the legal aspect, Mr. Ghosh also submitted that even on merits the ex-parte ad interim order of injunction passed by the learned Court below could not be sustained, having regard to the fact that the prayers made in the application for temporary injunction had no nexus with the reliefs prayed for in the suit itself. Mr. Ghosh urged that while the case, as sought to be made out in the plaint, was with regard to a Trust created by the defendant No. 1 appellant on 15th October, 1980, under the name and style of "bethel Charitable Trust", allegedly for public and charitable purposes, the prayers made in the application for temporary injunction had little or no connection with the plaint case. Mr. Mr. Ghosh urged that the prayers made in the application for temporary injunction included a prayer for an order not to disturb the functioning of the branches of the Trust within West Bengal or take any disciplinary action against any staff, including the plaintiff Nos. 1 to 5, till the disposal of the suit. Mr. Ghosh urged that such a prayer was misconceived since the Trustees could not be restrained from taking disciplinary action against the staff of the Trust, including the plaintiffs. Mr. Ghosh urged that the plaintiff no. 1 who had been transferred to Rourkela, which was the Head Office of the Trust, had refused to move on transfer having regard to the ad-interim order of injunction passed in the suit and the Trustees were unable to take any disciplinary action against him on account thereof. ( 6 ) MR Ghosh lastly urged that the suit which had been filed under section 92 of the civil Procedure Code, was not maintainable, inasmuch as, the Trust in question was a private Trust and not a trust of public and charitable nature, as would be revealed from the objects of the Trust as set out in the Trust Deed itself. ( 7 ) APPEARING for the respondent No. 1 mr. Swadesh Ranjan Bhunia, Senior Advocate, firstly contended that the appeal was not maintainable in view of the amendments introduced in Order 39 by the Civil Procedure Code (Amendment) Act, 1976. Mr. Bhunia urged that by virtue of such amendment a complete Code had been created which envisaged that only one appeal could be filed after completion of the Rule 4 stage and the same would be evident from the fact that in Order 43 Rule (1) (r)no provision had been made for filing an appeal in respect of an order passed under Rule 3. Mr. Bhunia urged that the matter would have to be considered in the light of the amended provisions which had replaced the old law. In support of his submission Mr. Bhunia referred to various decisions wherein the principle that the legislature does not use words without a purpose has been considered and we shall advert to the same, if required. ( 8 ) MR. Bhunia then contended that the order impugned in the appeal had been passed upon due compliance with the amended provisions of Order 39 Rule 3 of the Code of Civil procedure. ( 8 ) MR. Bhunia then contended that the order impugned in the appeal had been passed upon due compliance with the amended provisions of Order 39 Rule 3 of the Code of Civil procedure. It was urged that the ex-parte ad interim order of injunction had been passed by the learned Court below after considering the balance of convenience and inconvenience and the urgency of the matter. The learned court below had also directed service of notice as stipulated under Rule 3a of Order 39. Mr. Bhunia urged that while passing an ex-parte ad interim order of injunction the learned court below was not required to go into a detailed analysis of the questions involved and to pass an elaborate judgment on the basis thereof. Mr. Bhunia submitted that it had been mentioned in the impugned order that the ex-partead interim order of injunction was being passed because of the urgency involved, which really meant that the object of granting injunction would be defeated by delay if an ad interim order was not made pending the hearing of the application for temporary injunction. ( 9 ) REFERRING to a Bench decision of this court in the case of NEPC Micon Limited vs. Magma Leasing Limited and Anr. , Mr. Bhunia submitted that while discussing the mandatory nature of the provisions of Chapter XX Rule 3 of the Original Side Rules and the proviso to rule 3 of Order 39 C. P. C. , the Division Bench had held that the failure to give reasons would make the order vulnerable in appeal but would not destroy it altogether. It had also been observed that to hold that an ex-parte unreasoned interlocutory order is void would lead to the absurd result that the very object which is sought to be achieved by the petitioner in protecting himself against irreparable injury might be defeated by the failure of the Court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control. ( 10 ) MR. Bhunia submitted that the suit had been correctly filed under section 92 C. P. C. as the Trust had been created for charitable purposes which were being sought to be defeated by the appellant who was the defendant No. 1 in the suit. ( 10 ) MR. Bhunia submitted that the suit had been correctly filed under section 92 C. P. C. as the Trust had been created for charitable purposes which were being sought to be defeated by the appellant who was the defendant No. 1 in the suit. It was also submitted that the Trust funds which had been accumulated out of deposits made by public were being misappropriated and utilised in the mining business of the appellant's wife. Mr. Bhunia submitted that the appellant had committed various other illegalities with regard to the affairs of the Trust for which the appeal was liable to be dismissed and the interim order passed in the appeal was liable to be vacated. ( 11 ) MR. Shyama Prasanna Roy-chowdhury, while adopting Mr. Bhunia's submissions, also laid stress on the view expressed by the Division Bench in the NEPC Micon case (supra) relied upon by Mr. Bhunia submitted that such views had been expressed after considering the observations made by the Hon'ble supreme Court in Shiv Kumar Chadha's case and in the Morgan Stanley Mutual Fund case. Mr. Roychowdhury wanted us to hold that notwithstanding the views expressed by the hon'ble Supreme Court in the said two cases, the provisions of Rule 3 of Order 39 were not that mandatory so as to render void the order passed thereunder without due compliance of such provisions. Mr. Roychowdhury contended that in view of the decision of the Division bench in the NEPC Micon case, it must be held that the provisions contained in the proviso to Rule 3 of Order 39 C. P. C. were merely directory and not mandatory in nature. ( 12 ) MR. Roychowdhury urged that there were other similar provisions in the Code of civil Procedure, such as Order 41 Rule 27, where before passing an order the court was required to record reasons. Mr. Roychowdhury submitted that a Constitution Bench of the hon'ble Supreme Court had held such provision to be directory and not mandatory in the case of K Venkataramiah vs. A. Seetharama redd and Ors. . Mr. Roychowdhury submitted that a Constitution Bench of the hon'ble Supreme Court had held such provision to be directory and not mandatory in the case of K Venkataramiah vs. A. Seetharama redd and Ors. . Their Lordships observed that where a further appeal lies from the decision of the appellate court such recording of reasons is necessary and useful to the Court of further appeal for deciding whether the discretion under the Rule had been judicially exercised by the Court below and the omission to record reasons must, therefoic be treated as a serious defect, but even then, the provision was not mandatory and the omission to record reasons for allowing additional evidence does not vitiate such admission. ( 13 ) MR. Roychowdhury tried to impress upon us that since the aforesaid decision was rendered by a Constitution Bench, the same would prevail over the views expressed in Shiv Kumar Chadha's case and in the Morgan stanley Mutual Fund case, which had been rendered by a Division Bench of the Hon'ble supreme Court. ( 14 ) MR. Roychowdhury also placed reliance on a Bench decision of this court in the case of Smt. Muktakesi Dawn and Ors. vs. Haripada Mazumdar and Anr. , wherein upon placing reliance on the decision in K. Venkataramiah's case, the Division Bench held that while it would be helpful if reasons were recorded while passing an ex-parte ad interim, order of injunction, if there are good materials on record to show that there were good reasons for passing such order, the said order could not be set at naught solely on the ground that the Court, while making the order, did not record the reasons for proceeding ex-parte. ( 15 ) MR. Roychowdhury submitted that having regard to the provisions of Section 107 c. P. C. the appeal court could itself consider the materials on record and pass such order as it thought fit so that some interim protection could be given to the plaintiffs pending the hearing of the plaintiffs' application for temporary injunction. ( 15 ) MR. Roychowdhury submitted that having regard to the provisions of Section 107 c. P. C. the appeal court could itself consider the materials on record and pass such order as it thought fit so that some interim protection could be given to the plaintiffs pending the hearing of the plaintiffs' application for temporary injunction. In this regard reference was made to an unreported decision of this court in the case of Manjit Singh Gill vs. Punjab sports Club to which one of us (Altamas Kabir, J.) was a party, wherein while sending back the matter to the trial court for hearing out the plaintiffs' application for temporary injunction the court directed the parties to maintain status quo with regard to the management of the club till the said application was heard and disposed of. Mr. Roychowdhury urged that there were sufficient materials on record which warranted the passing of an ad interim order and the order passed by the learned court below could be suitably modified to meet the exigencies of. the situation and to provide interim protection to the plaintiffs pending the hearing and disposal oftheir application for temporary injunction. ( 16 ) ON a careful consideration of the submissions made on behalf of the respective parties and the decisions cited in support thereof we are inclined to agree with Mr. Amitava ghosh that the order impugned in the appeal cannot be sustained. The law relating to grant of ad interim orders of injunction without notice to the other side has been clearly and precisely explained by the Hon'ble Supreme court in Shiv Kumar Chadha's case (supra ). It has definitely been stipulated that whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to the other side, it must amongst other things record the reasons for doing so. The views expressed in the aforesaid case were reiterated by the Hon'ble Supreme Court in the Morgan Stanley Mutual Fund's case. The views expressed in the aforesaid case were reiterated by the Hon'ble Supreme Court in the Morgan Stanley Mutual Fund's case. The decision of this court in Smt. Muktakesi dawn's case (supra) was prior in point of time to the decision of the Hon'ble Supreme Court in Shiv Kumar Chadha's case and in the morgan Stanley Mutual Fund case and the learned Judges while deciding the case of Smt. Muktakesi Dawn did not have the benefit of the views expressed by the Hon'ble Supreme court in the two later cases. The decision of the Constitution Bench in the case of K. Venkataramiah (supra), is not of any help to the respondent having been rendered in the context of Order 41 Rule 27 c. P. C. which does not contemplate the passing of orders without notice to the other side. Furthermore, the impact of an ex-parte ad interim order of injunction is completely different from the impact of an order passed upon a contested hearing allowing additional evidence to be adduced. In our view, the two fact situations are completely different and cannot be referred to for purposes of comparison. ( 17 ) THERE is no denying the fact that the learned trial court did not record its reasons for passing an ex-parte ad interim order of injunction till disposal of the application for temporary injunction and such order is, therefore, squarely covered by the decision of the hon'ble Supreme Court in Shiv Kumar chadha's case and in the Morgan Stanley mutual Fund case and is liable to be set aside. The Bench decision of this Court in the nepc Micon Limited case was rendered in the context of the provisions of Chapter XX rule 3 of the Original Side Rules, which does not make provision for reasons to be given by the High Court in passing ex-parte orders upon such terms and conditions as may be considered necessary where the court is satisfied that the delay caused by proceeding in the ordinary manner would or might entail irreparable or serious mischief. The Division Bench had relied on the earlier Bench decision of this court in Muktakesi Dawn's case which as indicated herein before, was given without the benefit of the views expressed by the Hon'ble supreme Court in Shiv Kumar Chadha 's case and in the Morgan Stanley Mutual Fund case. The Division Bench had relied on the earlier Bench decision of this court in Muktakesi Dawn's case which as indicated herein before, was given without the benefit of the views expressed by the Hon'ble supreme Court in Shiv Kumar Chadha 's case and in the Morgan Stanley Mutual Fund case. That the learned Judges were conscious of the difference in the provisions of Order 39 Rule 3 C. P. C. and Chapter XX Rule 3 of the Original Side Rules would be evident from their observation" that the common distinguishing factor in all the cases referred to was that none of the Courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the original Side Rules. For the reasons indicated above, the order impugned in the appeal cannot be sustained. ( 18 ) IT is no doubt true that under provisions of sub-section (2) of Section 107 C. P. C. the appellate court can consider the grant of suitable ad interim orders pending the hearing and disposal of the plaintiffs' application for temporary injunction, but whether such orders are required to be passed would depend on the facts of each individual case. Since the plaintiffs' application for temporary injunction is pending hearing we do not propose to go into the merits of such application , even though invited by mr. Roychowdhury to do so. However, since a Trust and its properties are involved and various allegations of mismanagement and even misappropriation has been made, both in the plaint and in the application for temporary injunction, we substitute the order passed by the learned trial court with a direction upon the parties to maintain status quo with regard to the properties of the Trust till disposal of the said application for temporary injunction. ( 19 ) WE make it clear that we have neither gone into the merits of the case nor have we gone into the question relating to the maintainability of the suit under Section 92 c. P. C. and it will be open to the defendants to raise such question before the learned trial court at the time of hearing of the plaintiffs' application for temporary injunction or for the purposes of Order 14 Rule 2 C. P. C. and the learned trial court will be free to pass such orders as it thinks fit and proper both on the plaintiffs' application for temporary injunction and on the question of maintainability of the suit, if such question is at all raised. The appeal is accordingly disposed of. There will be no order as to costs. ( 20 ) IF an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant within seven days of such application being made, subject to compliance with all the required formalities. G. C. DC, J.-I agree. Appeal disposed of.