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2013 DIGILAW 1788 (MAD)

M. Thanaraj v. M. Alamelu

2013-04-26

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. This Civil Revision Petition is filed against an exparte order of interim injunction granted in I.A.No.7 of 2011 in O.S.No. 4 of 2011 by the learned District Munsif, Coimbatore. 2. The petitioners are the first and third defendants in the above said suit filed by the first respondent herein. The said suit is one for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property. Pending disposal of the above said suit, the plaintiff sought for interim injunction. The Court below by an order dated 3.1.2011 granted an exparte interim injunction till 19.1.2011. The said order is challenged before this Court on the ground that while granting exparte interim injunction, the Court below has not assigned any reason for granting such exparte order. It is the contention of the petitioners before this Court that such order granted exparte without assigning any reason is not valid and therefore they seek this Court to set aside the said order. At the time of ordering notice to the respondents on 7.1.2011, this Court granted interim stay as prayed for and the said order is still in force. 3. Learned counsel appearing for the petitioners submitted that the exparte order of interim injunction granted by the Court below is not in accordance with law and the Court below has not taken note of any of the facts and circumstances of the case and assigned any reason justifying the exparte order of injunction. 4. Per contra, Mr.Silambanan, learned Senior Counsel appearing for the respondents supported the order of the Court below by contending that the learned Judge has noted that there was a prima facie case in favour of the plaintiff and that the balance of convenience was also in her favour. 5. I have considered the rival submissions made by the learned learned counsels for the respective parties. 6. While perusing the order passed by the Court below dated 3.1.2011, it only says that prima facie case and balance of convenience are in favour of the petitioner. Except saying so, the Court below has not assigned any reason as to how the Court below has come to such conclusion that the plaintiff has got a prima facie case and also how the balance of convenience is in her favour. Except saying so, the Court below has not assigned any reason as to how the Court below has come to such conclusion that the plaintiff has got a prima facie case and also how the balance of convenience is in her favour. This Court, time and again has repeatedly held that while granting exparte interim injunction , the Court below has to assign reasons for granting such exparte orders. If no reasons are assigned then the order becomes bad in the eye of law. Though it is not expected to pass an elaborate or detailed order while granting exparte interim relief, still the Courts should assign the reasons in nutshell so as to enable the opposite party, against whom such order was made, to know the same and contest the application accordingly. In effect, an order passed without reasons is a non-speaking order and cannot be sustained in the eye of law. A reasonable opportunity liable to be given to the other side to defend the application would be defeated, by not assigning reasons in the order. Thus, if any such order is made, it would amount to denial of reasonable opportunity to the opposite party. 7. At this juncture, it is useful to refer to a decision of the Hon'ble Apex Court in State ofOrissa Vs. Dhaniram Luhar ( 2004 (5) SCC 568 ), wherein it is observed at paragraphs 7 and 8 as follows:- “7. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha Vs. State of Bihar ( 2003 (11) SCC 519 ). 8. Even in respect of administrative orders Lord Denning, M.R. in Breen Vs. Amalgamated Engg. Union (1971 (1) All ER 1148) observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd., Vs. Crabtree (1974 ICR 120 (NIRC) 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. " 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. " 8. In a judgement reported in K.Chandran Vs. Siriya Pushpam ( 2009 (5) MLJ 383 ), the learned Judge after following the decision of the Apex Court reported in 1996 (2) CTC 684 ( R.R.Techno Mechanicals (P) Ltd., Vs. Democractic Union) observed that while ordering ex parte ad-interim injunction, the Court is expected to cite reasons. Absence of reasons being found cited in the order would prove fatal to the very order itself. 9. In another decision reported in 2010 (5) CTC 762 (Indian Evangelical Lutheran Church and others Vs. J.Rajesh and others), the learned single Judge of this Court has considered similar issue and after applying various decisions of the Apex Court as well this Court, the learned Judge observed at paragraph 31 as follows:- ”31. At the outset, it has to be seen as to whether the order passed by the Court below satisfies the requirement of Order 39, Rule 3 of the Code. In the considered view of this Court, the observation of the Court below that a prima facie case is made out and the balance of convenience is also in favour of the first respondent cannot be considered to be the reason to be recorded under Order 39, Rule 3 of the Code. It has been held by the Apex Court as well as this Court in a number of decisions that Order 39, Rule 3 of the Code is not obligatory, but is mandatory. It has been held by the Apex Court as well as this Court in a number of decisions that Order 39, Rule 3 of the Code is not obligatory, but is mandatory. The Proviso to Order 39, Rule 3 of the Code 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. " 10. The present case also is squarely covered by the above two decisions of this Court. Consequently, I am of the firm view that the order passed by the Court below is not valid and therefore the same is liable to be set aside. Moreover, the interim injunction was granted by the Court below only till 19.1.2011 and the said order was also stayed by this Court as early as 7.1.2011. Therefore, after a lapse of more than two years, instead of remitting the matter back to the Court below to consider the interim application and to pass orders on merits, it would suffice that the very suit itself can be directed to be taken up for final disposal since the suit is also for bare injunction. Learned counsels appearing for both sides also submitted that a time frame may be fixed for the Court below to dispose of the main suit. 11. Accordingly, the Civil Revision Petition is allowed and the order passed by the Court below in I.A.No. 7 of 2011 in O.S.No. 4 of 2011 is set aside. The Court below is directed to take up the suit in O.S.No. 4 of 2011 and dispose of the same on or before 15.7.2013. Consequently, the connected M.P. is closed. No costs.