Procedure to be followed by court if plaintiff fails to comply O 39 R 3 of CPC after grant of exparte injunction

Before the Division Bench of the Delhi High Court, the question was whether the ad-interim exparte order should be vacated without going into the merits of the case solely because the Respondent - Plaintiff had failed to discharge its obligation cast by the proviso of Rule 3 of Order 39. While examining contentions in that behalf, the Delhi High Court referred to para 4 of the application for vacating the injunction and then held that ordinarily, ex-parte injunction may not be granted and referred to Order 39 Rule 3 in that behalf. It referred to a decision of the Supreme Court in Shiv Kumar Chadha v. Municipal Corporation Delhi MANU/SC/0522/1993 : [1993]3SCR522 . That decision of the Hon'ble Supreme Court was more on the question as to whether in the absence of reasoning being recorded to grant an ex-parte ad-interim injunction, the same must be vacated only on that ground. In other words, the exercise of power to grant injunction without notice is vitiated only because reasons are not recorded. It is in that context that the Supreme Court made the observations which have been relied upon by the Division Bench of the Delhi High Court. Further, the observations of the Delhi High Court in para 36 must be seen in the context of satisfaction by the Applicant of the requirement in the proviso. If the Court is persuaded to grant an ex-parte interim injunction on the basis that having shown indulgence, he would comply with the requirement of the proviso, it would simply vacate the ad-interim injunction without merit of the case leaving it open to the parties to have a hearing on the grant of the Application for Injunction and thereafter, it would be hearing both sides. How these observations assist Mr. Devitre in contending that the order must be vacated only on the ground of requirement not being complied with is not clear to me at all. In the instant case, it cannot be said that the injunction must be vacated only on the grounds prayed by the Appellant.

This does not mean that the learned Judge can go on adjourning the application merely because the affidavits are not filed. If he has granted an ex-parte injunction, then, he must see to it that the application is disposed off or else the very purpose and object of the confirmation of power to grant it would be defeated.

IN THE HIGH COURT OF BOMBAY

Arbitration Appeal No. 13 of 2009

Decided On: 24.04.2009

Appellants: Vascon Engineers Limited
Vs.
Respondent: Sansara Hotels India Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
S.C. Dharmadhikari, J.

Citation: 2009 (4) Mh.L.J. 859 

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