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2007 DIGILAW 4155 (MAD)

Lakshmi Natesan v. Periasamy & Others

2007-12-12

K.K.SASIDHARAN

body2007
Judgment : The sole respondent in I.A.No.74 of 2007 in C.M.A.No.9 of 2007 on the file of Principal Subordinate Judge, Puducherry is the petitioner in this civil revision Petition. 2. The respondents herein preferred C.M.A.No.9 of 2007 before the court below challenging the order of "status quo" granted by the First Additional District Munsif Court, Puducherry as per order dated 23. 2007 in I.A.No.1055 of 2007 in O.S.No.450 of 1997. .3. The brief facts necessary for the disposal of the civil revision petition are as follows:- The respondents herein preferred a suit in O.S.No.450 of 1997against the petitioner herein for a decree of declaration to declare the respective title, in respect of their shares purchased by them set out in "B" Schedule as items 1 to 5, which are part and parcel of the property in "A" Schedule and for a consequential injunction restraining the defendants or their men or agents from in any manner interfering with the peaceful possession of the property in Schedule "B" and for a further declaration to declare that the decree dated 30.4.1997 in O.S.No.284 of 1997 on the file of III Additional District Munsif, Puducherry is not valid and binding on the plaintiffs. The said suit was contested by the first defendant by filing written statement wherein it was contended that the plaintiffs have purchased specific extent of immovable property in their respective sale deeds and the sale deeds do not say that the plaintiffs have purchased undivided shares out of a greater extent and the documents also do not identify the properties purchased by them by boundaries. It is the further contention that in the earlier suit in O.S.Nos.374 to 378 of 1997 on the file of III Additional District Munsif, Punducherry the plaintiffs have not claimed that they have purchased undivided interest and therefore the plea in the present suit is clearly an after thought and as such the plaintiffs are not entitled for any relief, much less the relief claimed in the suit. The first defendant also filed additional written statement wherein she had claimed that the suit is barred under Order 2 Rule 2(3) of the Code of Civil Procedure as they are precluded from bringing in a new suit with respect to the plea which was omitted by them in the earlier suit. 4. The first defendant also filed additional written statement wherein she had claimed that the suit is barred under Order 2 Rule 2(3) of the Code of Civil Procedure as they are precluded from bringing in a new suit with respect to the plea which was omitted by them in the earlier suit. 4. The suit in O.S.No.450 of 1997 was subsequently dismissed for default as per judgment and decree dated 9. 1998 and later it was restored. Therefore it is obvious that whatever orders that were in existence at the time of dismissal of the suit, gets revived on restoration of the suit. 5. The suit in O.S.No.450 of 1997 though ripe for trial, has not been taken up for trial. In the meantime, the first defendant filed I.A.No.1055 of 2007 in O.S.No.450 of 1997 for an order of injunction restraining the respondents/plaintiffs from trespassing into the suit property and to alienate the suit property to third parties and also against the change of nature of the suit property till the disposal of the suit . In the said suit without ordering notice to the plaintiffs, the learned First Additional District Munsif passed an order of "status quo", as according to the learned Munsif the balance of convenience is in favour of the petitioner in the injunction application and a prima facie case has been made out in favour of the petitioner and in case interim order is not granted, the petitioner would be put to irreparable loss and damages. It is the said order, which was taken up in appeal by the plaintiffs in C.M.A.NO.9 of 2007. The appellants in the Civil Miscellaneous Appeal also prayed for an order to suspend the operation of the order dated 23. 2007 in I.A.No.1055 of 007 in O.S.No.450 of 1997 till the disposal of the appeal and the learned Principal Subordinate Judge as per order dated 14. 2007 in I.A.No.74 of 2007 in C.M.A.No.9 of2007 granted the said prayer and stayed the order of the learned First Additional District Munsif, Puducherry and aggrieved by the said order, the first respondent in the Civil Miscellaneous Appeal has preferred this civil revision petition. 6. In the above factual matrix I have heard Mr.R.Thiagarajan, learned counsel for the petitioner and Mrs.Chitra Sampath, learned counsel for the respondents. .7. 6. In the above factual matrix I have heard Mr.R.Thiagarajan, learned counsel for the petitioner and Mrs.Chitra Sampath, learned counsel for the respondents. .7. The learned counsel for the petitioner vehemently contended that the very appeal before the learned Principal Subordinate Judge, Puducherry in C.M.A.No.9 of 2007 is not maintainable as the remedy of the aggrieved respondents in I.A.No.1055 of 2007 in O.S.No.450 of 1997 is to file counter and to get the interim order vacated by approaching the learned I Additional District Munsif. It is further contended that without availing the alternative remedy of vacating the order by approaching the trial court, it is not legally permissible for the aggrieved party to file an appeal against the said order before the appellate court and according to the learned counsel, the appeal is not maintainable in view of the judgment of this court reported in AIR 1976 Madras 350 (ABDUL SHUKOOR v. UMACHANDER). The learned counsel further submitted that without interfering with the order of the trial court, the learned First Additional District Munsif may be directed to dispose of the injunction application on merits after giving an opportunity to both the parties. 8. Mrs.Chitra Sampath, learned counsel for the respondents contended that it is quite strange on the part of the First Additional District Munsif in entertaining the very application for injunction after a period of ten years from the date of filing of the suit and that too at the instance of the first defendant and granting an order of "status quo" without issuing notice to the counsel for the plaintiffs. According to the learned counsel the very procedure adopted by the learned First Additional District Munsif is legally erroneous, which prompted the plaintiffs to file an appeal before the Appellate Court without approaching the trial court to get the interim order vacated. The learned counsel relying on the decision reported in 2006(2) CTC 353 (RAJAGOPAL, R @ R.R. GOPAL @ NAKKHEERAN GOPAL v. JAYALALITHA), contended that in view of the interlocutory orders which decides matters of moment or affect vital and valuable rights of parties and which work serious injustice to the parties concerned, it can be considered as judgment to be appealable before the Appellate Court. The learned counsel for the respondents has also produced a copy of the judgment dated 8. The learned counsel for the respondents has also produced a copy of the judgment dated 8. 1997 in C.M.A.757 of 1997 and submitted that there is an order of injunction in operation against the respondent herein and as such the learned First Additional District Munsif should not have granted any injunction and that too, without hearing the other side. 9. On going through the order of the court below as well as the order of the learned First Additional District Munsif which is the subject matter of appeal in C.M.A.No.9 of 2007, I am convinced that the procedure adopted by the learned First Additional District Munsif, Puducherry is quite strange, in as much as the learned Munsif entertained an injunction petition and granted an order of "status quo" without even giving notice to the learned counsel for the plaintiffs, who is already on record and that too in a suit pending since 1997. .10. The affidavit filed in support of the application for injunction shows that on 23. 2007 the respondents in the injunction application along with their henchmen made an attempt to trespass into the suit property and the respondents are also taking steps to alienate the suit property to third parties and also to change the nature of the suit property. The affidavit is seen to be signed on 23. 2007 and the learned First Additional District Munsif granted an order of "status quo" on 23. 2007. The order of the learned First Additional District Munsif did not say in so many words as to what prompted the Munsif to grant the interim order without even ordering notice to the plaintiffs/respondents. 11. It is trite law that order should contain reasons which would enable the appellate or revisional Court to appreciate the respective contentions and the factors considered by the Court for granting the order. The reasons give clarity to the order and it will also avoid unnecessary criticism that orders are passed mechanically without seeing the materials available on record. 12. In the decision reported 2004 (7) S.C.C.431 (CYRIL LASRADO v. JULIANA MARIA LASRADO), the Apex Court indicated the necessity to state reasons in the order and held thus:- "11. Reason introduce clarity in an order. 12. In the decision reported 2004 (7) S.C.C.431 (CYRIL LASRADO v. JULIANA MARIA LASRADO), the Apex Court indicated the necessity to state reasons in the order and held thus:- "11. Reason introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Courts judgment not sustainable. 12. Even in respect of administrative orders, Lord Denning, M.R., in BREEN v. AMALGAMATED ENGG. UNION Observed: (ALL ER p.1154) "The giving of reasons is one of the fundamentals of good administration." In ALEXANDER MACHINERY (DUDLEY) LTD. v. CRABTREE it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 13. The learned counsel for the revision petitioner relied on the judgment of a Division Bench of this court reported in AIR 1976 Madras 350 (ABUL SHUKOOR v. UMA CHANDER) for the position that an appeal against an ex parte order granting temporary injunction does not lie. The learned counsel for the revision petitioner relied on the judgment of a Division Bench of this court reported in AIR 1976 Madras 350 (ABUL SHUKOOR v. UMA CHANDER) for the position that an appeal against an ex parte order granting temporary injunction does not lie. In the said decision, this Court held that no appeal will lie against the ex parte ad interim injunction but the specific remedy available under Order 39 Rule 4 of the Code of Civil Procedure has to be availed of by the interdicted party, so that a final reasoned order could be obtained in the trial court, against which the Code has provided an obvious appeal under Order 43 Rule 1(r) of the Code of Civil Procedure. 14. The Apex Court in the judgment reported in AIR 2000 Supreme Court 3032 (A. VENKATASUBBIAH NAIDU v. S. CHELLAPPAN) considered the issue with respect to ex parte interim injunction and the remedies available to the aggrieved party. In the said decision the Supreme Court explained the legal position and held that under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2, 2A, 4 or 10 of Order 39 of the Code of Civil Procedure in terms of Order 43, Rule 1 of the Code of Civil Procedure and he cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. The Supreme Court further held that in such circumstances the party, who does not get justice due to the inaction of the court not following the mandate of law, must have a remedy and as such the Supreme Court indicated in that case that if the mandate of Order 39 Rule 3-A of the Code is flouted, then the aggrieved party is entitled to file an appeal, not withstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force. 15. So far as the present case is concerned, it is evident that the respondents have not approached the trial court for vacating the interim order and without exhausting the alternative remedy, the respondents have filed an appeal before the appellate court and obtained an order of suspension of the order of injunction. 15. So far as the present case is concerned, it is evident that the respondents have not approached the trial court for vacating the interim order and without exhausting the alternative remedy, the respondents have filed an appeal before the appellate court and obtained an order of suspension of the order of injunction. Therefore the interim order in the Civil Miscellaneous Appeal has to be vacated and as a result, the parties have to be relegated to their original position to pursue their remedy before the trial court. However in this case, though I am inclined to interfere with the order of the Appellate Court, I am of the opinion that the interest of justice requires further orders to be passed inasmuch as the trial Court has granted injunction without notice to the respondents/plaintiffs and that too, during the pendency of the earlier order of injunction granted by this court. 16. The order of the trial court dated 23. 2007 is bereft of particulars. No reasons are assigned by the learned trial Judge while granting the order of ex parte injunction. The suit is of the year 1997 and as stated earlier, the injunction in favour of the plaintiffs is already in force. In such circumstances, the trial Court should have issued notice to the plaintiffs before granting any order of injunction or status quo in favour of the defendant. 17. It is not sufficient by merely reproducing the ingredients of Order 39 Rule 1 of the Code of Civil Procedure in the interim order. The Courts while granting interim order should be satisfied about the conditions stipulated in Order 39 Rule 1 of the Code of Civil Procedure and notice to the other side is the rule and ex parte order is an exception. 18. In the judgment reported in 1993(3) S.C.C.161 (SHIV KUMAR CHADHA v. MUNICIPAL CORPORATION OF DELHI) , the Apex Court expressed its concern in passing orders by the courts in the matter of granting ex parte injunction and accordingly held thus:- "33. 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 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 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. 34. 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 injunction cannot be held to be a mere formality. 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 prin ciple, 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 reasons before exercising power 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 Order 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 proviso 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 Order 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 24 and Nazir Ahmed v. Emperor 25 . Proviso to Rule 3 of Order 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 24 and Nazir Ahmed v. Emperor 25 . 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 Adke v. Govind Joti Chavare 26 . 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. But any such ex parte 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. 1, at page 514, reference has been made to the views of the English Courts saying: “Ex 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....” 19. Therefore I am inclined to interfere with the order of the learned First Additional District Munsif, Pondicherry dated 23. 2007 in I.A.No.1055 of 2007 in O.S.No.450 of 1997 and direct the learned Munsif to decide the I.A afresh after giving an opportunity to both the parties. The learned Munsif should give sufficient opportunity to the respondents herein to file their counter and both the parties should be permitted to produce evidence in support of their contentions and decide the matter on merits and in accordance with law within a period of one month from the date of receipt of a copy of this order. The learned Munsif should give sufficient opportunity to the respondents herein to file their counter and both the parties should be permitted to produce evidence in support of their contentions and decide the matter on merits and in accordance with law within a period of one month from the date of receipt of a copy of this order. It is needless to say that the observations made above are only for the purpose of deciding this revision and as such, the observations may not be considered as expression on the merits of the matter and the trial court has to decide the injunction application purely on merits. Since the suit is of the year 1997, the learned First Additional District Munsif, Pondicherry is directed to dispose the suit as expeditiously as possible and in any case positively before 21st April, 2008 and report compliance to this court. 20. In the result, the Civil Miscellaneous Appeal No.9 of 2007 pending before the Principal Sub Ordinate Judge, Puducherry is struck off from the file. The ex parte order dated 23. 2007 in I.A.No.1055 of 2007 in O.S.No.450 of 1997 on the file of First Additional District Munsif, Pondicherry is set aside. The Civil Revision Petition is disposed of subject to the observations made in para 19 of this order. Consequently, the connected Mps are closed. No costs.