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2019 DIGILAW 72 (PAT)

Purushottam Kumar Singh v. Navneet Kumar Singh

2019-01-08

BIRENDRA KUMAR

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Birendra Kumar, J. – Heard learned counsel for the parties. 2. This appeal has been preferred by the defendants of the suit for setting aside the order dated 05.09.2018 passed in T.S. Case No. 201 of 2018 by learned Sub- Judge-1, Bikramganj (Rohtas). 3. By the impugned order, the learned trial court has granted order of ad interim status quo which is in the nature of injunction ex parte in favour of the plaintiff-respondents. Some of the defendants have challenged the validity of the impugned order on the ground that the same suffers from non-assignment of reason and non-consideration of relevant facts which the Court while considering the matter of grant of injunction is bound to consider. 4. The impugned order reads as follows: – ^^oknh dh rjQ ls gkftjh ds lkFk 'kiFk i= ds lkFk bErkukbZ vkosnu nh xbZ gSA dkWih lkFk layXu gSA iqdkj ij oknh dh vksj ls fo}ku vfèkoDrk mifLFkr gksdj vius vkosnu dks lapkfyr fd,A lquokbZ i'pkr vfHkys[k voyksdu ls ik;k dh oknh }kjk ;g okn flfMmy ^^d** vjth nkoh dk caVokjk losZ uksbax dfe'uj }kjk eqnbZ;ku dk 1@3 fgLls dk r[rk vyx djus gsrq nh xbZ os lkFk gh lkFk rFkkdfFkr o;ukek la[;k&4161@15 dks fMDys;j uktk;t xSj dkuwuh oks osyk vfèkdkj dk gS ?kksf"kr djus gsrq nk;j dh xbZ gSA mijksDr ifjfLFkfr ds en~nsutj flfM;wy ^^d** vjthnk;h dh Hkwfe dk Lo:i esa dksbZ cnyko u gks ds en~nsutj ;Fkkor fLFkfr cgky j[krs gq, bErkukbZ vkosnu ij lquokbZ gksus rd iwoZor fLFkfr cgky dh tkrh gSA lkFk gh lkFk oknh dks funsZf'kr fd;k tkrk gS fd dkj.k i`PNk nsus gsrq 'kks dkmt uksfVl fuxZr djsaA fnukad 7-12-2018 okLrs oknh mDr vkns'k dk ikyu djsaA** 5. The proviso to Rule 3 of Order 39 of the Civil Procedure Code empowers the court to grant ex parte injunction with riders as follows: – “Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay…...” 6. The perusal of the impugned order above, would make it clear that the court below has not assigned any reason that object of grant of injunction would be defeated if it is not granted till notice to the opposite party. The perusal of the impugned order above, would make it clear that the court below has not assigned any reason that object of grant of injunction would be defeated if it is not granted till notice to the opposite party. The identical matter was considered by the Hon’ble Apex Court in a case of Morgan Stanley Mutual Fund vs. Kartick Das & Ors. reported in 1994(4) SCC 225 . Para 36 of the judgment reads as follows – “36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are – (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; (e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application. (f) even if granted, the ex parte injunction would be for a limited period of time. (g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.” 7. After hearing the parties and considering the facts that the learned court below has acted in utter disregard of requirement of law, in my view, the impugned order is not sustainable. Hence, the same is set aside with direction to the court below to pass a reasoned order according to law after hearing the parties. 8. With the consent of the parties, this appeal stands allowed at the stage of admission itself.