JUDGMENT Hon’ble Anil Kumar Sharma, J.—The defendant of O.S. No. 170 of 2012 Anuj Kumar Singh v. Ram Ji Singh, pending in the Court of Civil Judge (SD), Ballia has approached this Court by way of instant appeal for setting aside ex parte ad interim injunction order passed by the learned trial Court on 28.2.2012. The Stamp Reporter of the Court has noted that the instant first appeal from order is not maintainable. 2. We have heard the learned counsel for the appellant at length and perused the impugned order and other papers filed alongwith memo of appeal as well as the law cited at the Bar. 3. The plaintiff-respondent has filed suit (O. S. No. 170/12) in the Court of Civil Judge (Sr.Div.), Ballia for permanent injunction restraining the defendant from carrying on business of brick-klin in the year 2012 without paying his share in profits amounting to Rs. 10.5 lakhs for the year-2011, from selling 2.5 lakhs baked bricks and 4.0 lakhs raw bricks; from using 15 tons coal lying at the brick klin and interfering in plaintiff’s egress and ingress in the brick-klin bounded at the foot of the plaint. The plaintiff relied upon an unregistered partnership-deed dated 15.1.2011 executed between him and the defendant for running brick-klin in the name and style of ‘M/s Yuva Shakti Eint Bhatta’, and its registration certificate with the Commercial Tax Department. Ballia. Alongwith the suit the plaintiff filed application for ad interim injunction 6-C/2 supported with affidavit. The learned trial Court after hearing plaintiff’s counsel through impugned order dated 28.2.2012 granted interim relief restraining the defendant from running the brick-klin in the year 2012 without paying Rs. 10.5 lakhs to the plaintiff and further restrained him from selling the baked and raw bricks, using 15 tons coal and from plaintiff’s visit in the brick-klin bounded at the foot of the plaint. 4. Learned counsel for the appellant has vehemently argued that the learned trial Court has not followed the mandate of Rule 3 and 3-A of Order XXXIX Code of Civil Procedure in as much as no reasons have been recorded in the impugned order, so it is bad in law and since the application for ad interim injunction application has not been disposed of within 30 days, the ex parte ad interim injunction order has become final, so the instant appeal is maintainable. He has placed reliance on the following cases: 1. A. Venkatasubbiah Naidu v. S. Chellappan and others, (2000) 7 SCC 695 ; 2. Ashok Prakashan (Regd.) and another v. Sunil Kumar and others, 2006(6) ADJ 1 ; 3. American Institute of English Language Pvt. Ltd. v. Nitin Saraswat and another, 2003 (1) ARC 35; 4. Laxmi Narain and another v. The District Judge, Lalitpur and another, 1999 (36) ALR 198; 5. Road Flying Carrier and another v. The General Electric Company of India Ltd., AIR 1990 All 134 ; and 6. Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, JT 1993 (3) SC 238. 5. In the facts of the case of A. Venkatasubbiah Naidu (supra) the trial Court has granted ex parte ad interim injunction straight away for two months violating the provisions of Rule 3-A of Order 39 of the Code, which provides that where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable to do so, it shall record its reasons for such inability. The defendants challenged this order before High Court by way of revision under Article 227 of the Constitution. The learned single Judge setting aside the order observed that the trial Court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the Court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3-A of the Code. On these facts, the Apex Court in para-21 of the report observed as under : “21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. In such circumstances the party which does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. In such circumstances the party which does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code if flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant of vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be final order passed on the application of temporary injunction, on the date of expiry of thirty days mentioned in the Rule.” In para-22 of the report it was further observed by the Apex Court - “Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party has two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.” 6. In Shiv Kumar Chadha’s case (supra), the Hon’ble Supreme Court has held as under: “The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. In Shiv Kumar Chadha’s case (supra), the Hon’ble Supreme Court has held as under: “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. 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 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. 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, ((1875) 1 Ch D 426 : 45 LJ Ch 373) and Nazir Ahmed v. Emperor (AIR 1936 PC 253 (2) : 63 IA 372 : 36 Crl.L.J. 897). 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 ((1975) 1 SCC 915 : AIR 1975 SC 915 ). 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....” 7. An ex parte injunction should generally be until a certain day, usually the next motion day....” 7. In view of this legal preposition, it need not emphasis that provisions of Rule 3 and 3-A of Order XXXIX of the Code of Civil Procedure are mandatory in nature. However, the factual position of the instant case is some what different. Here the learned trial Court fixing date of hearing within thirty days in its impugned order has discussed the facts of the case in brief and has also noted the evidence filed by the respondent in support of his contention and has indicated the reasons for granting ex parte ad interim injunction order. It has observed that as the partnership has not been dissolved, so prima facie case in favour of the plaintiff is found. No doubt in so many words it has not been stated that the object of granting the injunction would be defeated by the delay, but in the facts and circumstances of this case, we find that the provisions of Rule 3 have been substantially followed. In these circumstances, the cases of Ashok Prakashan (Regd.), American Institute of English Language Pvt. Ltd., Laxmi Narain and Road Flying Carrier (supra) are not helpful to the appellant as in all these cases no reasons were given by the trial Court in the impugned orders while granting ex parte ad interim injunction orders. The interim order in the instant case has been granted up to 25.3.2012 directing the plaintiff to ensure compliance of Rule 3 of Order XXXIX of the Code, which was also made. The defendant has filed objections alongwith his affidavit against plaintiff’s application aforesaid on 23.3.2012 i.e. before the date fixed for hearing the ad interim injunction application, but the trial Court has wrongly fixed 22.4.2012 for hearing, as already 25.3.2012 was fixed for the purpose. As 25.3.2012 was Sunday, so the case was taken up on 26.3.2012 and on that day with the consent of the parties the hearing was preponed for 2.4.2012. Alongwith the memo of appeal the appellant has filed certified copy of the order sheet of the case as Annexure-11, but it does not contain orders passed between 10.4.2012 and 18.4.2012. It was holiday on 2.4.2012, so the case was put before the trial Court on 3.4.2012 and on that day 5.4.2012 was fixed for hearing of the application. Alongwith the memo of appeal the appellant has filed certified copy of the order sheet of the case as Annexure-11, but it does not contain orders passed between 10.4.2012 and 18.4.2012. It was holiday on 2.4.2012, so the case was put before the trial Court on 3.4.2012 and on that day 5.4.2012 was fixed for hearing of the application. The order-sheet further indicates that on 5.4.2012 time was not left with the trial Court, so the hearing was adjourned to 6.4.2012 and on this day arguments in part were heard and for rest arguments 9.4.2012 was fixed. The plaintiff filed certain papers on 9.4.2012, so 10.4.2012 was fixed for plaintiff’s rest arguments. Learned counsel for the appellant has supplied the uncertified copy of the order sheet of the case, which also contains orders passed by the learned trial Court between 10.4.2012 and 18.4.2012. The order sheet of 10.4.2012 shows that arguments of defendant were heard, however, plaintiff moved application for adjournment. The learned trial Court fixed 13.4.2012 for orders directing the plaintiff to address the Court positively on 11.4.2012 and on this day arguments were concluded. On 13.4.2012, the plaintiff sought adjournment for a week seeking time to file case-laws and the trial Court adjourned the case to 18.4.2012 observing that if the case-law is not filed, then vacation of ex parte order would be considered. In this context it is noteworthy that this year the annual transfers in the subordinate judiciary were effective on 16.4.2012 and all the Judicial Officers in the State who were under transfer were directed to hand over charge on 16.4.2012 (after-noon). On our query, the Registry has informed that till 16.4.2012 Sri N. K. Singh was presiding the Court of Civil Judge (SD), Ballia and thereafter his jurisdiction was changed and Smt. Sarla Dutta took over the charge of that Court, although this change was within the district. Experience shows that whenever an officer is under transfer out of station or his jurisdiction is changed within the district, his mind is diverted to the future change and the Bar also (particularly one of the party) is not interested in having verdict from the officer whose is being shifted. The history of this case supports our view. Experience shows that whenever an officer is under transfer out of station or his jurisdiction is changed within the district, his mind is diverted to the future change and the Bar also (particularly one of the party) is not interested in having verdict from the officer whose is being shifted. The history of this case supports our view. As noted above, this year in annual transfers of Judicial Officers in the State, all the officers under transfer were directed to be ready for handing over charge in the after-noon of 16.4.2012 vide Officer Memorandum of this Court dated 30.3.2012. The Presiding Officer of the trial Court hearing the case was likely to be shifted locally to another Court and actually his jurisdiction was changed in the after-noon of 16.4.2012 as he became Chief Judicial Magistrate, Ballia. In this back ground it cannot be held that there was any inaction on the part of the concerned Judicial Officer to expeditiously decide the ad interim injunction application filed in the case. The reasons for delay could not be mentioned in the order-sheet of the case due to change of Presiding Officer of the Court as was required per Rule 3-A of Order XXXIX CPC. Thus when the appellant has already filed objections as are required under Rule 4 of the above Order of the Code, and the learned trial Court had concluded hearing, the instant appeal filed on 30.4.2012 should not be entertained by this Court. In the case of GAIL (India) Ltd. v. Advance Lamps Component & Tablewares (P) Ltd., Firozabad, 2007 (3) AWC 3036 , a division bench of this Court in similar fact situation has observed that when application under Rule 4 Order XXXIX CPC has already been moved by the defendant-appellant in the Court below, two simultaneous proceedings, i.e. (i) application and (ii) appeal cannot be allowed to go on. Application for discharge/set aside/variation will be heard first. The Apex Court has also highlighted this legal position in para-22 of the report of A. Venkatasubbiah Naidu’s case (supra). 8. The result of the foregoing discussion is that no interference in the impugned order is required by this Court in the instant appeal, which is also not maintainable, as there was no inaction by the Judicial Officer in expeditiously hearing/disposing of the application for ad interim injunction. 8. The result of the foregoing discussion is that no interference in the impugned order is required by this Court in the instant appeal, which is also not maintainable, as there was no inaction by the Judicial Officer in expeditiously hearing/disposing of the application for ad interim injunction. We were informed that the trial Court had fixed 7.5.2012 for hearing/disposal of ad interim injunction application in the case, we hope that by now the said application should have been heard and decided. However, if it has not been done, we direct the trial Court to positively dispose of the application within three weeks from receipt of this order. In this event, we direct the appellant to file the certified copy of this order before the trial Court within three days from today. With the above observation, the appeal is dismissed. 9. Before parting with the case, we would like to remind the Judicial Officers of the State to sensitize themselves in following the mandate of provisions of Order XXXIX Rule 3 and 3-A CPC in letter and spirit whenever they intend to pass ex parte ad interim injunction order without giving notice to the defendant. Let a copy of the order be placed before Hon’ble Chief Justice by the Registrar General for circulating it among all the Judicial Officers for future guidance. ——————