WA/1723/2013 of Pasmala Anjaiah Chary Vs T.Satyanarayana on 31 December 2013

*THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA

AND

THE HONOURABLE SRI JUSTICE SANJAY KUMAR

+ WRIT APPEAL No.1723 of 2013

% 31-12-2013

Pasmala Anjaiah Chary

… Appellant

Vs.

$ T.Satyanarayana

…

Respondent

! COUNSEL FOR APPELLANT : Sri P.S.Rajasekhar ^ COUNSEL FOR RESPONDENT NO.1: Sri M.T.Ghori COUNSEL FOR RESPONDENT NO.2: G.P. for Municipal Administration COUNSEL FOR RESPONDENT NOs.3 & 4: Sri R.Radha Krishna Reddy <GIST

>HEAD NOTE:

? CITATION:

(1993) 3 Supreme Court Cases 161

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE SANJAY KUMAR

W.A.No.1723 of 2013

JUDGMENT:(per Hon’ble the Chief Justice Sri Kalyan JyotiSengupta )

Learned Counsel for the parties agree for final disposal ofthis appeal.

This writ appeal has been directed against an ad interimorder passed by the learned single Judge dated 05.07.2013, whichis as follows:

“There shall be interim suspension as prayed for.”

The undisputed fact is that the interim order was passed exparte and without requiring any notice to be served. Therefore, wehave to examine as to how the interim order is sustainable underlaw.

Learned Counsel for the appellant argues that this interimorder was obtained by practicing fraud upon the Court as his clientduly lodged a caveat and that once the caveat is lodged, notice isrequired to be served mandatorily. This fact was not placedbefore the learned single Judge. The materials are producedbefore us to show that the caveat was lodged. Learned Counselfor the appellant also says that this interim order is also not inaccordance with the proviso to Rule 3 of Order 39 of the Code ofCivil Procedure, which has been made applicable by virtue of Rule23 of the Writ Rules of this Court.

Learned Counsel for respondent No.1/writ petitioner, on theother hand, says that the factum of filing of the caveat was notknown to his client and the caveat was filed during the vacationCourt and as such the factum of lodging the caveat could not beplaced before the Court.

We are of the view that once the caveat was filed whetherduring the vacation Court or in normal functioning of the Court, theeffect of its filing is the same. The caveat filed remains effectivefor certain period of time as stipulated under law and in this case itdid not lapse and remained valid on the date of passing of theinterim relief. On that ground alone, this interim order must be setaside and quashed as the protection of having prior notice, givenunder law is denied.

That apart, we have noticed that the learned single Judgewhile passing the ex parte ad interim order did not follow themandatory requirements of Order 39 Rule 3 of the Code of CivilProcedure, which reads as follows:

“The Court shall in all cases, except where itappears that the object of granting the injunction wouldbe defeated by the delay, before granting an injunction,direct notice of the application for the same to be given tothe opposite party.

Provided that, where it is proposed to grant aninjunction without giving notice of the application to theopposite party, the Court shall record the reasons for itsopinion that the object of granting the injunction would bedefeated by delay, and require the applicant---- (a) to deliver to the opposite party, or to send tohim by registered post, immediately after the ordergranting the injunction has been made, a copy of theapplication for injunction together with-

(i) a copy of the affidavit filed in support ofthe 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 isgranted or on the day immediately following that day, anaffidavit stating that the copies aforesaid have been sodelivered or sent.”

The aforesaid provision was examined by the Hon’bleSupreme Court way back in 1993 in the case of Shiv KumarChadha Vs. Municipal Corporation of Delhi[[1]]. The Hon’bleSupreme Court in that case, while examining the scope came tothe following legal conclusion:

“The condition so introduced is that the Court"shall record the reasons" why an ex parte order ofinjunction was being passed in the facts andcircumstances of a particular case. In this background,the requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality.This requirement is consistent with the principle, that aparty to a suit, who is being restrained from exercising aright which such party claims to exercise either under astatute or under the common law, must be informed whyinstead of following the requirement of Rule 3, theprocedure prescribed under the proviso has beenfollowed. The party who invokes the jurisdiction of theCourt 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 situationand Court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that thereare other statutes which contain similar provisionsrequiring the Court or the authority concerned to recordreasons before exercising power vested in them. Inrespect of some of such provisions it has been held thatthey 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 Rule3 of Order 39. The Parliament has prescribed a particularprocedure for passing of an order of injunction withoutnotice to the other side, under exceptionalcircumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that Courtmust record reasons before passing such order. If it isheld that the compliance with the proviso aforesaid isoptional and not obligatory, then the introduction of theproviso by the Parliament shall be a futile exercise andthat part of Rule 3 will be a surplusage for all practicalpurposes. Proviso to Rule 3 of Order 39 of the Code,attracts the principle, that if a statute requires a thing tobe done in a particular manner, it should be done in thatmanner or not all.

As such whenever a Court considers it necessaryin the facts and circumstances of a particular case topass an order of injunction without notice to other side. Itmust record the reasons for doing so and should takeinto consideration, while passing an order of injunction,all relevant factors, including as to how the object ofgranting injunction itself shall be defeated if an ex parteorder is not passed. But any such ex parte order shouldbe in force upto a particular date before which the plaintiffshould be required to serve the notice on the defendantconcerned. …..

Accordingly we direct that the application forinterim injunction should be considered and disposed ofin the following manner:-(i) The Court should first direct the plaintiff to servea copy of the application with a copy of the plaint alongwith relevant documents on the counsel for theCorporation or any competent authority of theCorporation and the order should be passed only afterhearing the parties.

Conclusion

(ii) If the circumstances of a case so warrant andwhere the Court is of the opinion, that the object ofgranting the injunction would be defeated by delay, theCourt should record reasons for its opinion as requiredby proviso to Rule 3 of order 39 of the Code, beforepassing an order for injunction. The Court must directthat such order shall operate only for a period of twoweeks, during which notice along with copy of theapplication, plaint and relevant documents should beserved on the competent authority or the counsel for theCorporation. Affidavit of service of notice should be filedas provided by proviso to Rule 3 of order 39 aforesaid. If the Corporation has entered appearance, any such exparte order of injunction should be extended only afterhearing the counsel for the Corporation.

(iii) While passing an ex parte order of injunctionthe Court shall direct the plaintiff to give an undertakingthat he will not make any further construction upon thepremises till the application for injunction is finally heardand disposed of.”

Thus, from a reading of the aforesaid judgment of theHon’ble Supreme Court, it is clear that ordinarily the interim reliefshould not be granted without serving any notice on other side, butin exceptional circumstances if the interim relief is required to begranted without serving any notice, the aforesaid requirement is amust. The legislature thought it fit that the Court must be satisfiedwith exigency of the facts for grant of an ex parte interim order,and such satisfaction must be recorded to inform any oneincluding adversary as to why ex parte ad interim relief isgranted. In our view, in judicial field exercise of arbitrary actioncannot at all be tolerated. If any authority does not act in terms ofprovisions of law then such act and omission yield a situation ofarbitrariness. We, therefore, set aside the judgment and order ofthe learned single Judge. We request His Lordship to consider theprayer for interim relief afresh, after hearing the parties in thiscase, at an early date.

Accordingly, the Writ Appeal is disposed of. Miscellaneouspetitions, if any, pending shall also stand closed. No order as tocosts.

___________________

K.J. SENGUPTA, CJ

__________________

SANJAY

KUMAR, J

31.12.2013

Gsn

Note: L.R. copy to be marked: YES

[1](1993) 3 Supreme Court Cases 161