CRP/6060/2009 of K.L.N. Moorthy Vs Sri Balaji Educational Society on 31 December 2009

ORDER:

This revision is directed against the order granting ex parteinjunction by the court below in I.A.No.431 of 2009 in S.O.P.No.262 of2009, dated 8.12.2009. Pending the said O.P., at the instance of thepetitioners, ex parte interim injunction was granted by the learnedDistrict Judge, Chittoor, against the 8[th] respondent, who, according tothe original petitioner, is a third party and is not a member of the 1[st]respondent society, nor he holds any office. The injunction prayed foragainst him is in the following manner as per the prayer in theapplication.

“to grant ad-interim temporary injunction restraining therespondent/8[th] respondent third party, his men and agentsfrom interfering with the functions of the institutions andsociety, including interference with the affairs of thepetitioner society.”

I have heard Sri V.Jagapathi, learned counsel for the petitionersand Sri M.N.Narasimha Reddy, learned counsel appearing forrespondents 1 and 4.

The only question that falls for consideration in this revision petitionis whether the learned District Judge was justified in granting ex parteinterim injunction dated 8.12.2009 impugned herein.

Learned counsel for the petitioners has vehemently submitted thatno reasons are assigned in support of the said ex parte injunction and interms of provisions of Order 39, Rule 3 C.P.C., whenever the courtgrants ex parte interim injunction the reasons as to why notice is dispensed with must be mentioned in the order. He relies upon thedecision of the Supreme Court in SHIV KUMAR CHADHA v.MUNICIPAL CORPORATION OF DELHI[[1]]and contends that the orderimpugned is totally unsustainable as there are hardly any reasons as towhy the court below could not wait till the service of notice on therespondents before grant of ad interim temporary injunction. Learnedcounsel also has referred to several documents and aspects includingpleadings in the O.P. in support of his contention that the petitionerherein has been working as Chief Executive Officer of the society andon account of differences among the members of the society hasresulted into rival groups, who claim to be the management, and in anycase the petitioner herein being Chief Executive Officer has beenrestrained from functioning as such on account of the said order.

On the contrary, Sri M.N.Narasimha Reddy, learned counselappearing for the respondents submits that the order impugned cannotbe said to be without reasons as the court below has referred to theaffidavit and material papers filed by the original petitioner in support ofthe said application and the reasons and the threat alleged in the saidapplication has also been kept in mind by the court below while passingthe aforesaid order. He therefore submits that the order cannot be saidto be the one without reasons as contemplated under Order 39, Rule 3C.P.C. So far as the contents of the O.P. are concerned, the learnedcounsel submits that respondents 1 to 7 were earlier in the governingbody, but have ceased as such on 10.8.2009 and thereafter petitionersare in the management.

The point for consideration is whether the order impugned suffersfrom the vice of not giving reasons in support of grant of ex parte interiminjunction.

Before considering the said aspect, it is to be noted that the presentpetitioner, who is aggrieved by the said order, is the Chief ExecutiveOfficer of the society and the society itself is the 1[st] petitioner in the O.P.and impleaded as 1[st] respondent in the C.R.P. No doubt, there appears to be a dispute with regard to managing the said society. The said O.P.filed before the court below is with the following prayer:

“It is therefore prayed that this Hon’ble Court may bepleased to pass a decretal order and order in favour of thepetitioners against the respondents.pleased to pass a decretal order and order in favour of thepetitioners against the respondents.

(a) ordering the action of the respondents inmanaging the management of the 1[st]petitioner society by petitioners 2 to 7 isagainst to the rules of the memorandum ofthe 1[st] petitioner society and illegal;managing the management of the 1[st]petitioner society by petitioners 2 to 7 isagainst to the rules of the memorandum ofthe 1[st] petitioner society and illegal; (b)consequently the respondents their menand agents and followers by grantingpermanent injunction from illegallyinterfering (other than due process ofresolution and law) in the functioning of the1[st]petitioner society by it’s presentgoverning body;and agents and followers by grantingpermanent injunction from illegallyinterfering (other than due process ofresolution and law) in the functioning of the1[st]petitioner society by it’s presentgoverning body;

(c) directing the respondents to pay the costsof the petition;of the petition; (d)and pass such other and further reliefswhich deem fit and proper in thecircumstances of the above case”which deem fit and proper in thecircumstances of the above case”

From the contentions advanced on either side, it isapparent that both sides have produced documents and severalcontentions are advanced on the merits of the case. However,the scope of this revision is being limited, I am not referring to thesaid contentions, lest I should not make any observations in theinterests of both sides in the said pending O.P. The aforesaidbackground of facts, therefore, clearly show that the petitionerherein (8[th] respondent in the O.P) is only an employee. Evenaccording to him, the employer has obtained injunctionrestraining him from interfering with the functioning of theinstitution of the society including interference with the affairs ofthe society.

Learned counsel for the petitioner is right in submitting thatthough the said injunction as prayed for is only against the 8[th]respondent, he having been appointed by the other respondents in the O.P., the ex parte injunction actually affects otherrespondents in the O.P. though they are not made parties to thesaid injunction petition, they are clearly affected by the said orderand have legitimate grievance to contend.

The order impugned is extracted hereunder:

“Heard advocate for petitioners. Perused theaffidavit and other material papers. In view of thereasons stated and in view of the threat alleged,issue interim injunction against respondent andnotice subject to compliance of Order 39, Rule 3C.P.C. Adjourned to 23.12.2009.”

Arguments

The order impugned would show that the learned District Judgehas not in so many words mentioned all the reasons as to why he isgranting ex parte interim injunction. However, the averments in theabove order is that in view of the reasons and in view of the threatalleged, mentioned in the said order. Reference in the impugned order,obviously relates to para 6 of the affidavit filed in support of theinjunction application, where, imminent threat was mentioned by thepetitioners and in that view the injunction as prayed for was sought. However, I am of the opinion that keeping in view of the serious conteston factual aspects involved in the matter, it would be just andappropriate to relegate the parties to the court below so as to enable thepetitioner to file a detailed counter affidavit together with documents, ifany, and seek vacation or modification of the order of injunction. Theimpugned order is operating against the petitioner from 8.12.2009 andthe learned counsel for the petitioner submits that it is causing seriousand immense hardship to the petitioner. According to the learnedcounsel for the petitioner, the other respondents also are aggrieved andaffected by the said order though not impleaded in the injunction petitionin spite of the fact that they are parties in the O.P.

In that view of the matter, it is open for respondents 1 to 7 to seektheir impleadment in the injunction petition and contest the same, asthey are affected by the said ex parte injunction order. Petitioners,therefore, shall file counter affidavit together with the documents within ten days from today after duly serving the same on the respondentherein. The respondent shall file rejoinder or reply affidavit, if any, withinone week thereafter. The learned District Judge shall hear and disposeof the I.A., on priority basis and in any case within two weeks from thereopening of the court after Sankranthi vacation, in accordance withlaw. The learned District Judge shall also permit respondents 1 to 7 inthe O.P. to get impleaded in the said injunction petition and permit themto file counter affidavit together with the documents, if they so choose.The civil revision petition is disposed of with the aforesaiddirections.

Office is to dispatch the copy of the order to the court below withinthree days.

_____________________

VILAS V. AFZULPURKAR, J.

31.12.2009

Note: Issue copy within three days B.O.

kpr

[1](1993) 3 SCC 161(1993) 3 SCC 161