Leading Supreme Court judgment on scope of appeal against exparte order of temporary injunction

 It cannot be contended that the power to pass interim ex-parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be applicable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief.

11. Learned Senior Counsel for the respondents then contended, that an order granting injunction without complying with the requisites envisaged in Rule 3 of Order 39 be void. Rule 3 reads thus:

The Court shall in 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 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

(i) 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 the day, an affidavit stating that the copies aforesaid have been so delivered or sent.

12. What would be the position if a Court which passed the order granting interim ex-pane injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in Clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex-parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.

13. Learned Single Judge stated that the Trial Court ought not to have granted ex-parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 3-A of the Code which reads thus:

Where an injunction has been granted without giving notice to the opposite-party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted, and where it is unable so to do, it shall record its reasons for such inability.

14. The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less.

15. Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3-A.

16. The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing.

17. What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the Court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

18. It is the acknowledged position of the law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A. In appropriate cases, the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.

IN THE SUPREME COURT OF INDIA

C.A. No. 5102 of 2000 

Decided On: 19.09.2000

A. Venkatasubbiah Naidu  Vs. S. Challappan and Ors.

Hon'ble Judges/Coram:

K.T. Thomas and R.P. Sethi, JJ.

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Whether court should reject prayer for interim injunction if relief sought in injunction application and suit is same?

 In Dorab Cawasji Warden vs. Coomi Sorab Warden and others reported in MANU/SC/0161/1990 : (1990) 1 SCR 332, the Supreme Court held that the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last known uncontested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable loss. Courts have evolved certain guidelines. Generally stated these guidelines are:

a) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

b) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

c) The balance of convenience is in favour of one seeking such relief.

20. There is no law that in case the relief sought through the suit and relief prayed for in a application for temporary mandatory injunction under Order 39 Rule 1 and 2 of the CPC are the same, in that eventuality the ad interim injunction cannot be granted.

21. However, it is true that the court would be very slow in granting such relief and would grant the same only when it comes to the conclusion that great injustice has been done to the petitioner who has been thrown away from a property in which he was in lawful occupation and a person who has got no right or title to the said property has occupied the same. In Indian Cable Company Limited (supra), this court held that if a court is called upon to grant any relief on an interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting such prayer. It is indeed true that such a relief is granted only in exceptional cases, still at the same time no court should think that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and upheld the cause of justice by granting such a relief. 

IN THE HIGH COURT OF CALCUTTA

CO No. 359 of 2017

Decided On: 17.01.2019

Amita Sarbadhikary  Vs. Bandana Shome and Ors.

Hon'ble Judges/Coram:

Bibek Chaudhuri, J.

Citation: AIR 2019 Cal 123

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Whether defendant can apply for injunction against plaintiff under Order 39 of CPC?

It was also argued that the defendant cannot make an application for injunction against the plaintiff. It was held in Sivakami Achi v. Narayana Chettiar, AIR 1939 Mad 495 and B. F. Varghese v. Joseph Thomas, AIR 1957 Trav Co. 286 that a defendant can also apply for an injunction against the plaintiff under Order 39.

Rajasthan High Court

Rattu vs Mala And Anr. on 31 January, 1968

Equivalent citations: AIR 1968 Raj 212

Bench: J Narayan

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Whether court can give police aid for enforcement of exparte order of Injunction?

Citation: AIR1999Ker383, ILR1999(3)Kerala455, 1999(2)KLJ208

IN THE HIGH COURT OF KERALA

W.A. No. 1607 of 1999

Decided On: 22.07.1999

Appellants: Adhikarath Valappil Kunhumuhammed alias Kunhippa and Ors.
Vs.
Respondent: Korath Illath Valappil Mammi alias Bava Haji and Ors.

Hon'ble Judges/Coram:
A.R. Lakshmanan, Actg. C.J. and S. Sankarasubban, J.

Constitution of India, Article 226--Police protection --Direction to give police protection on the basis of ex parte order of injunction--No notice to the opposite party--Direction is illegal.

The Appellants are Respondents 12, 13 and 14, in the Original Petition. The Original petition was filed by Respondents 1 to 3 for a direction to the police to grant adequate police protection to enjoy their properties without any obstruction from Respondent 4 to 14. It was alleged in the Original Petition that police refused to give police protection in spite of an order of ex parte injunction against the Respondents 4 to 14 and that they failed to discharge their statutory duties. When the Original Petition came up for orders the learned Judge without ordering notice to the Respondents straight away ordered police protection "if there is violation of the injunction order". The order is challenged in appeal. It was contended for the Appellants that taking advantage of the injunction order, the Petitioners in the Original Petition are proceeding further with the construction unauthorisedly and that the Appellants have entered appearance before the court below and contested the matter that the Petitioners have no title or possession of the property. Allowing the appeal;

Held: The basis for seeking police protection from this Court is the ex parte ad interim injunction order passed by the Munsiff. The facts would disclose that the Respondents 1 to 3 have obtained an order in the Original Petition disclosing the entire facts and circumstance. This Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the civil court and that only a final order passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure can be enforced with the assistance of the police. We, therefore, hold that the Judgment of the learned Single Judge ordering police protection in case of violation of the ex parte injunction order is not in order and by the impugned Judgment police authorities are given the right to decide whether there is a violation of the injunction order passed by the Civil Court. We also feel that courts shall be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court.

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