Srinandan Singhal and Deepak Singhal S/O Ramtilak Vs. Sri. Kunj Bihari S/O Late Kashi Ram and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/844401
SubjectCivil
CourtKarnataka High Court
Decided OnNov-16-2009
Case NumberM.F.A. No. 6382/2008
JudgeSubhash B. Adi, J.
ActsCode of Civil Procedure (CPC) - Order 39, Rules 1, 2, 3 and 4
AppellantSrinandan Singhal and Deepak Singhal S/O Ramtilak
RespondentSri. Kunj Bihari S/O Late Kashi Ram and ors.
Appellant AdvocateR.B. Deshpande, Adv.
Respondent AdvocatePatel D. Karegowda, Adv. for R1-R4
DispositionAppeal allowed
Cases ReferredShivkumar Chadha v. Municipal Corporation of Delhi and Ors.
Excerpt:
- karnataka small causes courts act, 1964 [k.a. no. 11/1964]. sections 8 & 9: [k. ramanna, j] suit for ejection - jurisdiction of small causes court - suit for possession in respect of non-residential premises - held, small causes court has jurisdiction to pass a decree. however, a suit for possession of with mesne profits or damages would be outside the jurisdiction of small causes court. subhash b. adi, j.1. this appeal is directed against the order passed by the prl. city civil and sessions judge, bangalore, in o.s. no. 3539/2008 dated 4.6.2008.2. defendants 1 and 2 are the appellants herein. respondents 1 and 2 are the plaintiffs. the plaintiffs have filed a suit for permanent injunction restraining the defendants 1 to 9 from interfering with the business of the plaintiffs in any manner. plaintiffs also filed an application under order 39 rule 1 and 2 of the cpc interalia seeking ad-interim temporary injunction restraining the defendants, his agents, from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule premises during the pendancy of the said suit. the said application came up for consideration before the court on 4.6.2008. the learned trial judge issued an order of status-quo by dispensing notice to the defendants on the ground that the plaintiffs have made out a prima facie case for granting temporary order of status-quo and if no such order is passed, they will be put of loss.3. learned counsel for the appellants submitted that, in case if the court wants to dispense with the notice to the defendants before granting temporary injunction under order 39 rules 3 of the cpc, the court is required to record reason and also reason for granting the temporary injunction and the impugned order neither states any reason for granting ex-part temporary injunction nor recorded any findings. he submits the order is contrary to the order 39 rule 3 of the cpc in this regard, ha also relied on a decision of the supreme court in the case of shivkumar chadha v. municipal corporation of delhi and ors. reported in : (1993) 3 supreme court cases 161 and submitted that, in case of granting ax-parte temporary injunction, the trial court exercise its discretion to dispense with the notice to the defendants in such case, it must record reasons for granting ex-parte temporary injunction, apex court in the said judgment has observed at para-36 as under:36. accordingly, we direct that the application for interim injunction should be considered and disposed of in the following manner:(i) the court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the corporation or any competent authority of the corporation and the order should be passed only after hearing the parties.(ii) if the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion 33 required by proviso to rule 3 of order 39 of the code, before passing an order for injunction. the court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should toe served on the competent authority or the counsel for the corporation. affidavit of service of notice should be filed as provided by proviso to rule 3 of order 39 aforesaid. if the corporation has entered appearance, any such ex-parte order of injunction should be extended only after hearing the counsel for the corporation.(iii) while passing an ex-parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.4. in the light of the above decision of the apex court, learned counsel for the appellant submitted that the trial court has not applied its mind nor hag given the reasons as to why the notice to the defendants to be dispensed with and as to the ground for granting ex-parts temporary injunction.5. learned counsel for the respondents submitted that, the trial court considering the averments made in the application for grant of temporary injunction found it expeditious to grant ex-parte temporary injunction and has opined that prima facie case is made out and considering the case, the order has bean passed. he submitted that the order of status-quo is made on 4.6.2008 and at this stage, it should not be vacated, alternatively he submits that in case of ex-parte temporary injunction, remedy is avilable to the defendants to file an application for vacating temporary injunction under order 39 rule 4 of the cpc.6. order xxxix rule 3 of c.p.c. reads as follows:3. before granting injunction, court to direct notice to opposite party.-the court shall in the cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting the injunction, direct notice of the application for the same to be given to the opposite party;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, and require the applicant--(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-(1) a copy of the affidavit filed in support of the application;(ii) a copy of the plaint; and(iii) copies of documents on which the applicant relies; and(b) 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 aforesaid have been so delivered or sent.very reading of the said provision makes it clear that, the court shall in all eases issue notice to the opposite party before granting temporary-injunction except when it appears that the object of granting injunction would be defeated by the delay in issuing notice and may, in such circumstances, grant exparte temporary injunction subject to satisfying itself that, there is urgency in the matter and issuing notice to the opposite party would defeat the granting of injunction and must record the reasons for granting exparte injunction. reading of clause (a) of order xxxix rule 3, it also emphasizes that the party, on whose benefit the exparte injunction is granted, must serve the opposite party immediately after granting of injunction the copy of the affidavit filed in support, of the application, plaint and documents relied. no doubt, just not mentioning the reasons for granting injunction, that by itself may not vitiate the order, tout if there are no reasons for granting exparte temporary injunction and the court has not applied its mind, it would defeat the very purpose of the object of the order xxxix rule 3 cpc. reading of order xxxix rule 1, 2 and 3 makes it clear that, in normal circumstances, the court shall issue notice to the opposite party before hearing the application under order xxxix rule 1 and 2 cpc and in exceptional circumstances, it may grant exparte temporary injunction, however, subject to recording of reasons for the urgency as veil as for granting temporary injunction. temporary injunction is granted subject to finding of prima facie case in favour of the party seeking injunction, balance of convenience and hardship would be caused to the party or parties seeking temporary injunction if not granted. these circumstances must be considered before passing the exparte temporary injunction.7. nature of the order passed by the trial court is in the nature of temporary injunction and further, the trial court has not even assigned any reason for the dispensing notice to the defendants nor it has considered what is the nature of injunction sought for and why it should be granted, instead very casually the order has been passed by the trial court.8. looking at the order, i find that the order is not in consonance with order 39 rule 3 of the cpc, and same is contrary to the judgment of the apex court also. no doubt, order 39 rule 4 provide for filing an application for vacating the ex-parte temporary injunction granted, however when the order passed by the trial court is not in conformity with order 39 rule 3 of the cpc, the order is not sustainable and further this court ha3 granted interim order of stay on 12.6.08 and the ex-parte order is not given effect to. in these circumstances, this appeal deserves to be allowed.9. accordingly, the appeal is allowed and the impugned order is sat aside. matter is remanded back to the trial court to reconsider the application for temporary injunction and after hearing both the parties, the trial court to pas3 appropriate order in accordance with law.
Judgment:

Subhash B. Adi, J.

1. This appeal is directed against the order passed by the Prl. city civil and sessions Judge, Bangalore, in O.S. No. 3539/2008 dated 4.6.2008.

2. Defendants 1 and 2 are the appellants herein. Respondents 1 and 2 are the plaintiffs. The plaintiffs have filed a suit for permanent injunction restraining the defendants 1 to 9 from interfering with the business of the plaintiffs in any manner. Plaintiffs also filed an application Under Order 39 Rule 1 and 2 of the CPC interalia seeking ad-interim temporary injunction restraining the defendants, his agents, from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule premises during the pendancy of the said suit. The said application came up for consideration before the Court on 4.6.2008. The learned trial judge issued an order of status-quo by dispensing notice to the defendants on the ground that the plaintiffs have made out a prima facie case for granting temporary order of status-quo and if no such order is passed, they will be put of loss.

3. Learned Counsel for the appellants submitted that, in case if the Court wants to dispense with the notice to the defendants before granting temporary injunction under Order 39 Rules 3 of the CPC, the court is required to record reason and also reason for granting the temporary injunction and the impugned order neither states any reason for granting ex-part temporary injunction nor recorded any findings. He submits the order is contrary to the order 39 Rule 3 of the CPC in this regard, ha also relied on a decision of the Supreme Court in the case of Shivkumar Chadha v. Municipal Corporation of Delhi and Ors. reported in : (1993) 3 Supreme Court Cases 161 and submitted that, in case of granting ax-parte temporary injunction, the trial court exercise its discretion to dispense with the notice to the defendants in such case, it must record reasons for granting ex-parte temporary injunction, Apex Court in the said judgment has observed at para-36 as under:

36. Accordingly, we direct that the application for interim injunction should be considered and disposed of in the following manner:

(i) The court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the corporation or any competent authority of the corporation and the order should be passed only after hearing the parties.

(ii) if the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion 33 required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should toe served on the competent authority or the Counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the Corporation has entered appearance, any such ex-parte order of injunction should be extended only after hearing the Counsel for the Corporation.

(iii) While passing an ex-parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.

4. In the light of the above decision of the Apex Court, learned Counsel for the appellant submitted that the trial court has not applied its mind nor hag given the reasons as to why the notice to the defendants to be dispensed with and as to the ground for granting ex-parts temporary injunction.

5. Learned Counsel for the respondents submitted that, the trial court considering the averments made in the application for grant of temporary injunction found it expeditious to grant ex-parte temporary injunction and has opined that prima facie case is made out and considering the case, the order has bean passed. He submitted that the order of status-quo is made on 4.6.2008 and at this stage, it should not be vacated, alternatively he submits that in case of ex-parte temporary injunction, remedy is avilable to the defendants to file an application for vacating temporary injunction under Order 39 Rule 4 of the CPC.

6. Order XXXIX Rule 3 of C.P.C. reads as follows:

3. Before granting injunction, Court to direct notice to Opposite Party.-

The court shall in the cases, except where it appears that the object of granting the Injunction would be defeated by the delay, before granting the injunction, direct notice of the application for the same to be given to the opposite party;

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, and require the Applicant--

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(1) a copy of the affidavit filed In support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies; and

(b) 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 aforesaid have been so delivered or sent.

Very reading of the said provision makes it clear that, the Court shall in all eases issue notice to the opposite party before granting temporary-injunction except when it appears that the object of granting injunction would be defeated by the delay in issuing notice and may, in such circumstances, grant exparte temporary injunction subject to satisfying itself that, there is urgency in the matter and issuing notice to the opposite party would defeat the granting of injunction and must record the reasons for granting exparte injunction. Reading of Clause (a) of Order XXXIX Rule 3, it also emphasizes that the party, on whose benefit the exparte injunction is granted, must serve the opposite party immediately after granting of injunction the copy of the affidavit filed in support, of the application, plaint and documents relied. NO doubt, just not mentioning the reasons for granting injunction, that by itself may not vitiate the order, tout if there are no reasons for granting exparte temporary injunction and the court has not applied its mind, it would defeat the very purpose of the object of the Order XXXIX Rule 3 CPC. Reading of Order XXXIX Rule 1, 2 and 3 makes it clear that, in normal circumstances, the court shall issue notice to the opposite party before hearing the application under Order XXXIX Rule 1 and 2 CPC and in exceptional circumstances, it may grant exparte temporary injunction, however, subject to recording of reasons for the urgency as veil as for granting temporary injunction. Temporary injunction is granted subject to finding of prima facie case in favour of the party seeking injunction, balance of convenience and hardship would be caused to the party or parties seeking temporary injunction if not granted. These circumstances must be considered before passing the exparte temporary injunction.

7. Nature of the order passed by the trial court is in the nature of temporary injunction and further, the trial court has not even assigned any reason for the dispensing notice to the defendants nor it has considered what is the nature of injunction sought for and why it should be granted, instead very casually the order has been passed by the trial court.

8. Looking at the order, I find that the order is not in consonance with Order 39 Rule 3 of the CPC, and same is contrary to the judgment of the Apex Court also. No doubt, Order 39 Rule 4 provide for filing an application for vacating the ex-parte temporary injunction granted, however when the order passed by the trial court is not in conformity with Order 39 Rule 3 of the CPC, the order is not sustainable and further this Court ha3 granted interim order of stay on 12.6.08 and the ex-parte order is not given effect to. In these circumstances, this appeal deserves to be allowed.

9. Accordingly, the appeal is allowed and the impugned order is sat aside. Matter is remanded back to the trial court to reconsider the application for temporary injunction and after hearing both the parties, the trial court to pas3 appropriate order in accordance with law.