Madhu Chhanda Bandyopadhyay @ Madhuchhanda Banerjee v. Shankari Kayal
2016-11-18
HARISH TANDON
body2016
DigiLaw.ai
JUDGMENT : 1. This revisional application is directed against the judgement and order dated 5th April, 2016 passed by the learned Additional District Judge, 1st Court, Serampore in Miscellaneous Appeal No.31 of 2014, by which the said appeal was dismissed on contest. 2. The plaintiff/opposite party filed a suit for declaration of title and permanent injunction restraining the defendants/petitioners from creating a sort of obstruction in the suit property and also disturbing her peaceful possession in respect thereof. In such a suit an application for temporary injunction was taken out and moved for passing an ex parte ad interim order of injunction. 3. By order no. 3 dated 19th May, 2014 the Trial Court passed an ex parte ad interim order of injunction restraining the defendants/opposite parties from disturbing the peaceful possession in respect of ‘A’ schedule property. The defending petitioners preferred an appeal against the said ex parte ad interim order of injunction and by the impugned order the Appellate Court declined to interfere with the same. 4. It appears that the Appellate Court was swayed by the fact that in view of the deed of Gift executed by the mother of the petitioners and the claim of appellants/defendants to use the entrance of ‘B’ schedule property for ingress and egress to ‘A’ schedule property has no basis. 5. It goes without saying that the consideration at the time of passing an ad interim order of injunction is different than the consideration at the time of passing a temporary injunction. It is a settled law that the Court while passing an ex parte ad interim order of injunction must record the reasons, which is imperative and mandatory. After the amendment in the Code of Civil Procedure brought in the year 1976, the normal rule is that the Court should not pass an ex parte ad interim order of injunction, but should direct the notice to be served on the other side. By way of an exception the power is conferred upon the Court under Order XXXIX Rule 3 of the Code of Civil Procedure to pass an ex parte ad interim order of injunction without serving a notice, provided a strong case of irreparable loss and injury is made out apart from the existence of prima facie case and balance of convenience and inconvenience. 6.
6. Providing reasons is one of the fundamental duties entrusted upon the Court in judicial dispensation. The aforesaid provision indicates the duties cast on the Court at the time of passing an ad interim order of injunction to record reasons. The reason is the heart and soul of the order without which it cannot survive on the parameters of law. 7. There are umpteen number of judgements delivered by the Supreme Court as well as this Court deprecating the action of the Trial Courts in passing an ex parte ad interim order of injunction without recording reasons. 8. The Apex Court in case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi reported in (1993) 3 SCC 161 held in unequivocal terms that a party is not entitled to an order of injunction as a matter of course or right and the Court shall not ignore the non-adherence of the said proviso while proceeding to pass an ex parte ad interim order of injunction. 9. The aforesaid proposition of law is further fortified in three Bench decision of the Supreme Court rendered in case of Morgan Stanley Mutual Fund vs. Kartick Das reported in (1994) 4 SCC 225 . 10. The Court of Appeal below ought to have bear in mind that the scope of an appeal is limited in the sense that the consideration is whether the Trial Court followed the principles of law enunciated and laid down in the abovementioned decisions at the time of passing an ex parte ad interim order of injunction. If the Appellate Court found that the impugned order is completely bereft of reasons and in contravention to the provisions as indicated above, it should not venture to enter into the merit and demerit of the application but to have relegated the parties to the Trial Court to ventilate their grievance after setting aside the said ex parte ad interim order of injunction. 11. Simply on the ground that the Trial Court passed an ex parte ad interim order of injunction without following the rule of law in this regard, the orders passed by both the Courts below are hereby set aside. 12. This Court is informed that the petitioners have been served with the copy of the injunction application, which is pending before the Trial Court. 13.
12. This Court is informed that the petitioners have been served with the copy of the injunction application, which is pending before the Trial Court. 13. Learned advocate for the petitioners submits that the written objection to the said application has already been filed and, therefore, the application for temporary injunction is otherwise ready for final disposal. 14. The Trial Court is directed to fix the date of hearing of the said application, which shall not be beyond one week from the date of the communication of this order. 15. It is, however, made clear that such date shall be fixed on the presence of the parties or their respective counsels. 16. The Trial Court is further directed to decide the said application within two weeks therefrom in accordance with law after affording an opportunity of hearing to the parties and by recording proper reasons. 17. None of the observations made hereinabove shall have any impact on the merit of the application for temporary injunction and the Trial Court shall not be swayed by it and shall decide the same independently and in accordance with law. 18. The Special Officer appointed by this Court stands discharged. 19. With the above observations, this revisional application is disposed of. 20. There will be no order as to costs.