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2020 DIGILAW 642 (TS)

Vasavi And Gp Infra v. D. Bhujalu

2020-08-26

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

body2020
JUDGMENT M.S.Ramachandra Rao, J. - These two appeals arise out of the same suit O.S.No.428 of 2019 on the file of the XV Additional District and Sessions Judgecum-II Additional Family Judge, Kukatpally, Ranga Reddy District and so they are being disposed of by this common Judgment. 2. The appellant in both the appeals is defendant No.42 in the said suit. 3. The said suit was filed by respondent Nos.1and 2 herein against the appellant and others for a preliminary decree for demarcation of the land admeasuring Ac.0.35 gts constituting 1/9th share of the 1st respondent by demarcating and partitioning the same by metes and bounds out of total extent of Ac.11.11 gts in Sy.No.88 of Nanakramguda, Serilingampally Mandal, Ranga Reddy District. 4. Along with the suit, respondent Nos.1 and 2 filed I.A.No.2414 of 2019 under Order 39 Rules 1 and 2 C.P.C. for grant of ex parte interim injunction restraining the appellant and some of other respondents from creating any third party interest over the suit schedule property by way of sale/mortgage or transfer of the same till disposal of the suit. 5. They also filed I.A.No.2415 of 2019 under Order 39 Rules 1 and 2 C.P.C. for grant of interim injunction restraining the appellant and some defendants therein from raising any constructions or alterations over the suit schedule property till disposal of the suit. 6. The plaint schedule property which is mentioned is Ac.3.30 gts out of Ac.11.11 gts in Sy.No.88 of Nanakramguda, Serilingampally Mandal, Ranga Reddy District within the specified boundaries. 7. By separate orders dt.29-11-2019, ex parte ad interim injunction was granted in favour of respondent Nos.1 and 2. 8. Both the said orders are identical and are as under: "Heard. Perused the record. The pleadings and the averments in the petition prima facie prove the rights of the petitioner/plaintiff over the petition schedule property and also their to share in it. The averments in the petition further prima facie show the attempts of the respondent in taking steps to sell/mortgage or any transfer over the property to defeat the right o the petition. As such the balance of convenience and irreparable loss are in favour of the petitioners and they are entitled for urgent orders dispending with notice. The averments in the petition further prima facie show the attempts of the respondent in taking steps to sell/mortgage or any transfer over the property to defeat the right o the petition. As such the balance of convenience and irreparable loss are in favour of the petitioners and they are entitled for urgent orders dispending with notice. Issue ad-interim injunction restraining the respondents from creating any third party interest over the petition schedule property by way of sale/mortgage or any transfer over the petition schedule property till 27.12.2019, subject to compliance of Order 39 Rule 3 C.P.C." 9. In these appeals, it is the contention of the appellant that the impugned orders passed by the Court below in I.A.No.2414 of 2019 and 2415 of 2019 in O.S.No.428 of 2019 are bereft of reasons, contrary to the mandatory requirement stipulated by Order 39 Rule 3 C.P.C. Reliance is placed on the judgment of the Supreme Court in Shiv Kumar Chadda Vs. Municipal Corporation of Delhi, (1993) 3 SCC 161 . 10. It is further contended that there is no compliance of Order 39 Rule 3 C.P.C. by respondent Nos.1 and 2 though the impugned orders direct them to comply with the same, and that the respondents 1 and 2 failed to deliver to the appellant and to others either in person or by registered post, immediately after order granting temporary injunction was passed, copies of applications for such injunction together with affidavit, plaint and documents; and to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies of affidavit have been so deliver or sent. Other contentions on merits of the claim of the appellant have also been raised. 11. Notice before admission order was issued by this Court on 28-07-2020 in both these matters and it was stated at that time by the learned counsel for appellant that respondent Nos.3 to 49 are not necessary parties. 12. Notices have been served in both the appeals on respondent Nos.1 and 2 and Sri N.Manohar Reddy, learned counsel entered appearance on behalf respondent Nos.1 and 2. 13. 12. Notices have been served in both the appeals on respondent Nos.1 and 2 and Sri N.Manohar Reddy, learned counsel entered appearance on behalf respondent Nos.1 and 2. 13. Heard Sri S.Niranjan Reddy, learned Senior Counsel for Ms.Gorantla Sri Ranga Pujitha, learned counsel for appellants in both the appeals and Sri E.Madan Mohan Rao, learned counsel for Sri Manohar Reddy, learned counsel for respondent Nos.1 and 2 in both the appeals. 14. Sri S.Niranjan Reddy, leaned counsel reiterated that the impugned orders challenged in both the appeals do not contain any reasons, that the principle laid down by the Supreme Court in Shiv Kumar Chadda (1 supra) has not been followed, and therefore the impugned orders deserve to be set aside. He also relied upon the judgment of the Supreme Court in A.Venkatasubbaiah Naidu Vs. S.Chellappan, (2000) 7 SCC 695 that if the party in whose favour an order is passed ex parte fails to comply with the duties which such party is required to perform as per proviso to Order 39 Rule 3(3) C.P.C., then any compliance with such requisites on the part of such party cannot be allowed to go without consequences and that such party cannot be allowed to take advantage of such an order. 15. Sri E.Madan Mohan Rao, learned counsel appearing for respondent Nos.1 and 2 refuted the above contentions and stated that the impugned orders does contain reasons grant of ex parte ad interim injunction in favour of respondent Nos.1 and 2. 16. We do not agree with the said contention. 17. We have already extracted the impugned orders passed in I.A.Nos.2414 of 2019 and 2415 of 2019 in both the appeals. There is no discussion at all about the basis of the claim of respondent Nos.1 and 2/plaintiffs or the documents which prima facie, according to the Court below, support their claim for ad interim injunction. 18. 17. We have already extracted the impugned orders passed in I.A.Nos.2414 of 2019 and 2415 of 2019 in both the appeals. There is no discussion at all about the basis of the claim of respondent Nos.1 and 2/plaintiffs or the documents which prima facie, according to the Court below, support their claim for ad interim injunction. 18. In Shiv Kumar Chadda (1 supra), the Supreme Court held that the requirement for recording the reasons for grant of ex parte injunction, contained in proviso to Or.39 Rule 3 CPC cannot be held to be a mere formality and that 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. It declared: "32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite-party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the oppositeparty, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...". 33. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the oppositeparty, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...". 33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. 34. 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 oppositeparty". 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. 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. 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,1871 1 Ch 426 .D. = 45 LJ Ch 373)] and Nazir Ahmed v. Emperor, (1936) AIR PC 253 (2) ]. This principle was approved and accepted in well-known cases of Taylor v. Taylor,1871 1 Ch 426 .D. = 45 LJ Ch 373)] and Nazir Ahmed v. Emperor, (1936) AIR PC 253 (2) ]. 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,1979 1 SCC 559. 35. 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. ......"( emphasis supplied) 19. We are convinced that the Court below has violated this principle of law and had granted ex parte ad interim injunction in favour of respondent Nos.1 and 2 and against appellant and others without giving reasons as mandated by proviso to Order 39 Rule 3 CPC and therefore the impugned orders passed by the Court below deserve to be set aside. 20. On the other aspect as to compliance with requirement of proviso to Order 39 Rule 3 C.P.C., we are not inclined to go into the said issue since there is dispute about the same. 21. Accordingly, both the Civil Miscellaneous Appeals are allowed; the impugned orders dt.29-11-2019 in I.A.Nos.2414 of 2019 and 2415 of 2019 in O.S.No.428 of 2019 are both set aside; both the said I.As. are restored to the file of the Court below; and the Court below is directed to pass reasoned order in accordance with law after hearing the appellant as well as respondent Nos.1 and 2. No costs. 22. Pending miscellaneous petitions, if any, shall stand closed.