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Madhya Pradesh High Court · body

2013 DIGILAW 474 (MP)

Radheshyam Rathi v. Rotary Club

2013-04-08

Sujoy Paul

body2013
ORDER 1. In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order of the Court below dated 26.3.2013 whereby the Court below has passed the ex-parte injunction against the defendants. The matter was heard on the question of maintainability. The brief facts necessary for adjudication of this matter are as under:- 2. The respondent No. 1 filed a suit for declaration and permanent and mandatory injunction stating that the plaintiff-Club (Rotary Club, Birla Nagar) is running under Rotary International District 3050. A declaration is sought in the said suit that the election held on 3.10.2012 be quashed, result of elected candidate be set aside and a direction be issued to recount the valid votes in the presence of the election officer and after recounting, results be declared. Along with the said suit an application under Order 39 Rules 1 and 2 r/w section 151 CPC (Annexure P6) and another application under Order 39 Rule 3 CPC (Annexure P7) were filed. The Court below entertained those applications and passed the impugned ex-parte injunction order. At the time of admission, an objection is raised by the plaintiff/respondent that the impugned order is appealable under Order 43 Rule 1 CPC and this petition is not entertainable. The petitioner submits that the petition is maintainable because the order passed by the Court below is under Order 39 Rule 3 CPC and against this order no appeal lies under Order 43 Rule 1 CPC. Thus, with the consent of parties, this matter was heard on the question of maintainability. 3. Shri Prashant Sharma, learned counsel for the petitioner drew the attention of this Court on Order 43 Rule 1 (r). This provision reads as under:- “1. Appeal from orders. An appeal shall lie from the following orders under the provisions of section 104, namely:- (r) an order under rule 1, rule 2 (rule 2A), rule 4 or rule 10 of Order XXXIX.” 4. By placing heavy reliance on the language employed in this rule, Shri Prashant Sharma submits that there is a deliberate omission and legislature has not chosen to insert rule 3 under the purview of Order 43 Rule 1(r) CPC. Thus, he submits that no appeal lies when order is passed by the Court below under Order 39 Rule 3 CPC. By placing heavy reliance on the language employed in this rule, Shri Prashant Sharma submits that there is a deliberate omission and legislature has not chosen to insert rule 3 under the purview of Order 43 Rule 1(r) CPC. Thus, he submits that no appeal lies when order is passed by the Court below under Order 39 Rule 3 CPC. In addition, he relied on the order dated 2.5.2005 passed by the apex Court in Suresh Bhasin v. Ramesh Chandra and others and judgment of this Court in Gajraj Singh and others v. Ram Kumar reported in 1992 (2) Vidhi Bhasvar 328= ( 1993 MPLJ 52 ). 5. Per contra, Shri V.K. Bharadwaj, learned senior counsel assisted by Shri Alok Katare, Advocate for respondent No. 1 submits that the appeal is very much maintainable and in support of that contention he relied on various authorities. 6. I have bestowed my anxious consideration on the rival contentions of the parties on the question of maintainability and perused the record. 7. A plain reading of Order 39 Rule 1 shows that it has been compartmentalized into two divisions:- (i) The temporary injunction. (ii) Interlocutory orders. 8. Rules 1 to 5 fall under “temporary injunction”, whereas rules 6 to 10 fall under interlocutory orders. It is, thus, clear that all orders under Rules 1 to 5 of Order 39 are, in fact order of “temporary injunction”. 9. Proviso to Rule 3 under Order 39 was inserted by Act No. 104 of 1976 w.e.f. 1.2.1977. In original Rule 3, the powers were given to the Court to grant ex-parte injunction without notice to the other side. However, a proviso aforesaid was added which mandates that while granting such injunction ex-parte, the Court shall record reasons for its opinion that the object of granting injunction would be defeated by the delay and may require the applicant/plaintiff to fulfill the requirement of Clause (a) and (b). Thus, Rule 3 is a method by which the Court may grant ex-parte injunction and direct notices to the opposite party. This power is exercised in the situation where it appears to the Court that the object of granting injunction would be frustrated by the delay, in such cases ex-parte injunction can be passed. The basic power to grant temporary injunction is there in Rules 1 and 2 of Order 39. This power is exercised in the situation where it appears to the Court that the object of granting injunction would be frustrated by the delay, in such cases ex-parte injunction can be passed. The basic power to grant temporary injunction is there in Rules 1 and 2 of Order 39. Rule 3 only deals with a particular situation for exercise of power to grant injunction ex-parte. 10. Under Order 39 Rule 3 a Court only decides whether to grant injunction ex-parte or after giving notice to the other side.If the Court decides to issue notice and passes injunction order after giving notice, the power, in fact, is exercised under Order 39 Rules 1 and 2. In cases where the Court decides to pass injunction order without giving notice, in that eventuality also, the power of of granting injunction is traced and flows from Order 39 Rules 1 and 2. Order 39 Rule 3 is only a method and option for the Court to issue injunction after giving notice or without giving notice and prescribes the methodology and procedure for granting ex-parte injunction. In the event Court deems it proper to grant ex-parte injunction, it is obliged to assign reasons for its opinion. 11. In AIR 1984 Gauhati 86 (FB) (Akmal Ali and others etc. v. State of Assam and others), the Court opined that procedure for granting ex-parte injunction is laid down in Rule 3, whereas Rules 1 and 2 combined together is repository of Court’s power of granting injunction. 12. In AIR 2000 SC 3032 (A. Venkatasubbiah Naidu v. S. Chellappan and others), the apex Court opined that it cannot be contended that the power to pass ex-parte interim orders of injunction does not emanate from Order 39 Rule 1. The said rule is repository of the power to grant orders of temporary injunction with or without notice, interim or temporary or till further orders or till the disposal of the suit. Thus, it is held by the apex Court that any order passed in exercise of aforesaid power in Rule 1 would be appealable under Order 43 Rule 1 CPC. This Court in 1961 JLJ 1203= AIR 1963 MP 208 (Chhaganlal v. Niwasdas Goyal) opined that where an order of temporary injunction is issued ex-parte, that order is nonetheless an order under Rules 1 or 2 of Order 39 CPC and would as such be appealable. This Court in 1961 JLJ 1203= AIR 1963 MP 208 (Chhaganlal v. Niwasdas Goyal) opined that where an order of temporary injunction is issued ex-parte, that order is nonetheless an order under Rules 1 or 2 of Order 39 CPC and would as such be appealable. The same view is taken by this Court in 1978 (I) MPWN 447 (Sitaram v. Rajabeti). In AIR 2002 Gauhati 146 the Single Judge followed the Full Bench judgment in Akmal Ali (supra). In AIR 2004 AP 310 (Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt. Ltd. and Ors.) the High Court of AP took the same view. So far 1992 (2) Vidhi Bhasvar 328= 1993 MPLJ 52 (Gajraj Singh and others v. Ram Kumar and others) is concerned, in my opinion, the said judgment is of no assistance to the petitioner. In the said case, the application was preferred under Order 39 Rule 3 CPC, but Court did not grant any injunction. Only notices were directed to be issued (para 7). If injunction is not granted, it is clear that the powers under Order 39 Rules 1 and 2 are not exercised. In that event, such order, by no stretch of imagination, can be said to be an order passed under Orders 39 Rules 1 and 2. Mere issuance of notice without any injunction will not fall within the powers under Order 39 Rules 1 and 2. On this factual foundation, in Gajraj Singh (supra), the Court opined that mere issuance of notice will not make an order appealable under Order 43 Rule 1 (r). In the present case, admittedly, injunction has been passed which is necessarily an order passed under Order 39 Rules 1 and 2. On the basis of aforesaid analysis, the case of Gajraj Singh (supra) is distinguishable and is of no assistance to the petitioner. 13. In my considered opinion, merely because two separate applications were filed by the plaintiff under Order 39 Rules 1 and 2 read with section 151 CPC and under Order 39 Rule 3 CPC respectively will not mean that Order 39 Rule 3 is an independent provision. Rule 3 is part and parcel of Order 39, Rule 3 merely provides a method to grant ex-parte injunction when certain conditions are satisfied. Rule 3 is part and parcel of Order 39, Rule 3 merely provides a method to grant ex-parte injunction when certain conditions are satisfied. When the conditions are satisfied, the Court may grant injunction ex-parte which is necessarily a power exercised under Order 39 Rules 1 and 2 CPC. Rule 3 cannot be divorced from the nature of power given to the Court u/r 1 and 2 and it has to be read with rule 1 and 2 CPC. In other words, in my opinion, when Court decides to grant injunction ex-parte by invoking Rule 3 aforesaid, even then it only shows that Court was satisfied that it is a fit case for grant of ex-parte injunction and in that eventuality, it exercises the power under Rules 1 and 2 to grant injunction. Therefore, merely because in Order 43 Rule 1 (r), the Rule 3 of Order 39 is not mentioned, it will not mean that the order impugned would not be appealable. Accordingly, I am unable to hold that this petition under Article 227 of the Constitution is maintainable. Petitioner has a remedy of appeal under Order 43 Rule 1 (r). The order of the Supreme Court in Suresh Bhasin (supra) can be relied upon by the petitioner before the appropriate appellate forum. In my opinion, this petition is not tenable and therefore, I leave it open for the petitioner to rely on the said order before appropriate appellate forum. Petition is not entertainable for the reasons stated above. It is dismissed without expressing any opinion on the merits of the case. Needless to mention that liberty is reserved to petitioner to avail aforesaid remedy. 14. Certified copy of the impugned order be returned to the petitioner after obtaining photocopy of the same.