Basic concepts: What is An Anton Piller injunction?

 An Anton Piller injunction is an extraordinary form of court-ordered injunctive relief that compels a defendant to permit a plaintiff to enter their property to search for and seize evidence and records, including electronic data and equipment. Also known as a "search order" in some jurisdictions, this remedy serves as a form of ex parte interlocutory injunction that grants the plaintiff certain rights of access to documents or articles in the defendant's possession.

Origins and Legal Foundation

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What is duty of a litigant while seeking ex-parte injunction?

To avoid ambiguity, I take the liberty of briefly summarizing the key principles I believe apply to every ex parte application. I do so because I believe an application for leave to move ex parte can never be granted for the asking or automatically.

(a) The general principle is that the Court will hear both sides before rendering a decision. This is the essence of any adversarial justice-delivery process and based on the fundamental rule of natural justice and fairness, audi alteram partem. An ex parte application, without notice to or hearing, the other side is, therefore, the exception, a derogation from this general principle.

(b) It is every advocate's and every court's paramount duty, of the very first importance, to ensure the integrity of the judicial process. When, therefore, a court is asked to depart from the general and general rule, it must be able to rely on the applicant (who or which is appearing without an opponent on notice) to present its case fairly and evenly. This means that the applicant's case must contain a disclosure or statement of an anticipated defence or arguments likely in opposition. In turn, this means that an applicant seeking an ad-interim relief without notice must make a full and reasonably accurate disclosure of material facts and must invite the court's attention to factual, legal and procedural issues. On the factual issues to be disclosed, the applicant need only disclose as much--but every bit as much--as is within his knowledge, or that which, with reasonable efforts, he could discover. Material in the public domain, including in open registries, falls within this class of factual material.

(c) The disclosure and statement in the application or plaint must be neutrally and objectively presented so that the court has confidence in the case brought. Merely annexing a slew of documents does not, of itself, serve this purpose.

(d) Necessarily, this means that the applicant must be shown to have made the necessary and proper enquiries, within the bounds of reason, before making the application. This material can be in a supporting affidavit, but it must be before the court. Some level of investigation and enquiry must be demonstrated. This duty of disclosure includes matters of which the applicant would have been aware had he made reasonable enquiries. Specific to IPR matters, for instance, is the requirement for a search in the registry as to what, if anything, the defendant has done in regard to the competing mark, service, product or thing. For trademarks: has the defendant sought registration? When and with what effective date? With or without a disclaimer? There must be market information too: how long has the defendant been in the market with the rival product and mark? In what area? In what manner?

(e) Ex parte applications are, by definition, moved in urgency. This must be demonstrated too. The compilation of relevant material may be less than optimally organized in view of the urgency, but the urgency does not excuse the need for a sufficient disclosure. The requirement is not of the fullest and most complete disclosure but enough to make the court cognizant of the likely issues and possible defences. A detailed analysis of every single possible point is not required. Undoubtedly, the requirement of disclosure relates to relevant material, and kept within sensible limits. The disclosure must be proportionate, and the task is not the pursuit of perfection (for it will always be argued that the disclosure might have been bettered). The disclosure requirement is, above all, a safeguard to ensure that the court is not misled on a material and relevant aspect.

(Emphasis added)  {Para 5}

IN THE HIGH COURT OF BOMBAY

Commercial Appeal (L) No. 31992 of 2022 i

Decided On: 07.10.2022

Kewal Ashokbhai Vasoya and Ors. Vs.  Suarabhakti Goods Pvt. Ltd.

Hon'ble Judges/Coram:

G.S. Patel and Gauri Godse, JJ.

Citation: MANU/MH/3566/2022

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Whether recording of reasons for grant of ex parte injunction is mandatory?

As held by the Supreme Court in the case of Shiv
Kumar Chadha (supra), the power to grant
injunction is an extraordinary power vested in
the Court to be exercised taking into
consideration the facts and circumstances of a
particular case, and the Courts have to be more
cautious when the said power is being exercised
without notice or hearing the party, which is to
be affected by the order so passed. The Supreme
Court has also, inter alia, held that recording
the reasons for grant of ex parte injunction,
cannot be held to be a mere formality and that
whenever the Court considers it necessary in
the facts and circumstances of a particular
case to pass an order of injunction without
notice to other side, it must record the
reasons for doing so and should take into

consideration, while passing an order of
injunction, all relevant factors, including as to
how the object of granting injunction itself
shall be defeated if an ex parte order is not
passed. It has also been held that the proviso
to Rule 3 of Order XXXIX of the Code also
attracts the principle that if a statute requires
a thing to be done in a particular manner, it
should be done in that manner and not otherwise.
It is true that in the case of A. Venkatasubbiah
Naidu (supra) the Supreme Court has observed that
if the Court, passing ex parte injunction, did
not record reasons, such order can be deemed to
contain such requirements by implication, even
if they are not stated in so many words.
However, in the instant case, the trial Court has
failed to record reasons expressly or impliedly
as to how the object of injunction would be
defeated if the ex parte order was not granted.
The impugned order, therefore, could not be said
to be in conformity with the mandatory provision
contained in Rule 3 of Order XXXIX of CPC.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 125 of 2016

M/S WIM PLAST LTD & 1
V
M/S SYMPHONY LTD & 1.

CORAM:  MS.JUSTICE BELA M. TRIVEDI
Date : 26/04/2016
Citation: AIR 2017(NOC)76 GUJ

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Duty of court to protect interest of absent party while granting exparte injunction

The trial Judge has very lightly granted the injunction. Principles of granting temporary injunctions are well settled. Order 39, Rules 1 and 2 provide for such injunctions. Rule 1 does not apply. Rule 2 requires that some injury must be threatened. Injury must be a legal injury and not any fancied injury. In all cases where injury is alleged the Court is put on an enquiry as to what are the contents of the rights claimed by the plaintiffs. Assuming that some such right is shown the second element to be considered is whether irreparable injury or inconvenience may result to the plaintiffs if the same is refused. The appellants want to prevent the owner from developing the property merely by relying upon the Rules of the Corporation. Their shops exist as they are and they could carry on the business without any hindrance until the Small Causes Court decide the eviction suit. By this injunction, the appellants are only holding the owners to reason. The trial Court did not even pause to consider the loss to the owner. We have dealt with the question in somewhat details, for in recent days cases after cases came to our notice where we find injunctions are granted without due care and circumspection and without thought to the consequences of the same to the other side, particularly by the Small Causes Court and the City Civil Court, in Bombay. No attempt is even made to safeguard the other side by imposing terms such as security or otherwise. The duty of being careful even in the case of ex parte applications cannot but be emphasised. It is the duty of the Judge to be careful in the exercise of this power and must by careful questioning of the applicant ascertain whether a real case exists for the grant of the same. He must be satisfied that the law permits it and the emergency demands it. It should not be granted lightly or inadvisedly. Even if granted, the absent party ought to be sufficiently protected. (Canon of Judicial Ethics of American Bar Association). We only hope that care will hereafter be shown by subordinate Courts in granting injunctions.

Bombay High Court

Narayandas S. Kanuga vs Sarasvatibai D. Joshi And Anr. on 7 March, 1967

Equivalent citations: AIR 1968 Bom 280, (1967) 69 BOMLR 622

Bench: Patel, Thakkar

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Leading judgment on grant of exparte temporary injunction

What are the guiding principles in relation to the grant of an ad interim injunction in such areas of the functioning of the capital market and public issues of the corporate sector and whether certain 'venue restriction clauses' would require to be evolved.judicially as has been done in cases such as Sanchaita case I etc. ?

36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court.

37. In United Commercial Bank v. Batik of India5, this Court observed: (SCC pp. 787-88, paras 52-53) "No injunction could be granted under Order 39, Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on tile material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.

38. This Court had occasion to emphasise the need to give reasons before passing ex parte orders of injunction. In Shiv Kumar Chadha v. 5 (1981) 2 SCC 766 Municipal Corpn. of Delhi6, it is stated as under: (SCC pp. 176-77, paras 34-35) "... the court shall 'record the reasons' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule '1, the procedure prescribed under the proviso has been followed. The party which invokes the Jurisdiction of the court for grant of an order of restrain against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they 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 Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and no t obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor', and Nazir Ahmed v. Emperor8. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare9.

As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed."

6    (1993) 3 SCC 161, 176
7    (1875) 1 Ch D 426: 45 LJ Ch 373
8    AIR 1936 PC 253(2): 63 IA 372: 37 Cri LJ 897
9    (1975) 1 SCC 915

Supreme Court of India

Morgan Stanley Mutual Fund vs Kartick Das on 20 May, 1994

Equivalent citations: 1994 SCC (4) 225, JT 1994 (3) 654

BENCH:
MOHAN, S. (J)
VENKATACHALLIAH, M.N.(CJ)
ANAND, A.S. (J)

Read full judgment here:click here

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What Principles should be considered while granting ex-parte temporary injunctions?

Morgan Stanley (supra) spelt out the guiding

principles in relation to the grant of an ad-interim injunction in such

areas of the functioning of the capital market and public issues of

the corporate sectors and whether certain 'venu restriction clauses'

would require to be evolved judiciously. The guiding principles were

that the ex-parte injunction could be granted only under the

exceptional circumstances. The factors which should weigh with

the Court in the grant of ex-parte injunction were-

(a) where irreparable or serious mischief will ensure to the

plaintiff;

(b) whether the refusal of ex-parte injunction would involve

greater injustice than the grant of it would involve;

(c) the court would also consider the time at which the

plaintiff first had notice of the act complained so that the

making of improper order against a party in his absence is

prevented;

(d) the court will consider whether the plaintiff had acquiesced

for sometime and in such circumstances it will not grant

ex-parte injunction;

(e) the court would expect a party applying for ex-parte

injunction to show utmost good faith in making the

application.

(f) even if granted, the ex-parte injunction would be for a

limited period of time.

(g) General principles like prima facie case, balance of

convenience and irreparable loss would also be considered by

the court.

15. In Sopan Thopte (supra) a Division Bench of this

Court noticed that in many cases subordinate Courts are granting

ad-interim reliefs without following the mandate of Rule 3 of Order

XXXIX of the C.P.C. Only under exceptional circumstances ex-parte

stay order or interim relief is required to be granted by recording

reasons. But recording of reasons should not be an empty

formality, such as by mentioning that the record has been seen and

the plaintiff establishes prima facie case. The Courts should bear in

mind the foregoing principles enunciated in the case of Morgan14 

Stanley Mutual Fund(supra). Their Lordships also observed that

in their view passing an interim order indiscriminately and without

apparent and due application of mind, which has the effect of

allowing the plaintiff to continue to enjoy the fruits of his illegal

actions including unauthorised construction tends to lower the

Court's prestige and clearly undermines the Rule of Law while once

again emphasizing the need to see that the prima facie case is

made out before the Court grants an ad-interim injunction.

 IN THE HIGH COURT OF BOMBAY AT GOA.

 APPEAL FROM ORDER NO. 44 OF 2016.

SHRI NARCINVA DAMODAR NAIK,

 Versus

 SMT. RUKMA ABHIJIT SADEKAR,

 PRONOUNCED ON : 18th July,2016.
Citation: 2016 SCC OnLine Bom 7009

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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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Leading judgment on grant of status quo or exparte injunction

 All that we have said above is sufficient to dispose of the petition. But before parting with the judgment, we would like to deal with the manner in which learned Civil Judge, Junior Division passed the order directing parties to the suit to maintain status quo without proper verification of plaintiffs' right when he found that no prima facie case was made out. This was in flagrant violation of the mandate of Rule 3 of Order XXXIX of the Code of Civil Procedure. We are also told at the Bar in the course of hearing of this petition that the learned Judge is in the habit of passing such orders granting ad interim injunctions in number of suits, even though prlma facie case is not made out. It has come to our notice that in many cases subordinate Courts are granting ad interim reliefs without following the mandate of Rule 3 of Order XXXIX of Civil Procedure, Code. Only under exceptional circumstances ex parte stay order or interim relief is required to be granted by recording reasons. But recording of reasons should not be an empty formality, such as by mentioning that the record is seen and the plaintiff establishes prima facie case. The Courts should bear in mind the following principles enunciated in the case of Morgan Stanley Mutual Fund v. Kartlck Das, reported in (1994) 4 SCC 255 : 1994 AIR SCW 2801.

"36. As a Principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are :

a) whether irreparable or serious mischief will ensue to the plaintiff.

b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve

c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.

d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction.

e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

f) Even if granted, the ex parte injunction would be for a limited period of time.

g) General principles like prima facie, balance of convenience and irreparable loss would also be considered by the Court."

 Our High Court in Sopan Maruti Thopte v. Pune Municipal Corporation, was dealing with a case relating removal of unauthorised construction where an injunction had been granted in favour of person who has raised unauthorised construction and ordered that passing of interim order indiscriminately and without reasons apparent and due application of mind, which has effect of allowing plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Court's prestige and clearly undermines the Rule of law. The result is that implementation of law suffers.

 In our view, the need to see that a prima facie case is made out, before a Court grants ad interim injunction, cannot but be over emphasised. Prima facie case should be such that it should appear on record that there is a bona fide contest between the parties and serious question is required to be tried. If the plaintiff has no right, title or interest in the property, normally there is no question of granting equitable relief in his favour. Such ex parte orders have far reaching effect, as such a condition has been imposed that the Court must record reasons before passing such order.

 It should be borne in mind before issuance of an injunction that it is a discretionary and equitable relief. It is not mandatory that for mere asking such relief should be given. It is not charity at the cost of public. However, procedure established by law has to be followed. That the violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunction which have the effect of continuing such violation.

Bombay High Court

Nagorao And Ors. vs The Nagpur Improvement Trust And ... on 1 March, 2001

Bench: J Patel, P Brahme

Citation:AIR 2001 Bombay, 402

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Whether appeal is maintainable if trial court fails to decide injunction application after granting exparte injunction?

Section 104 of the Code says that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(i) any order made under rules from which an appeal is expressly allowed by rules.

Order 43 Rule 1 says that: An appeal shall lie from the following orders under the provisions of Section 104 namely;

(r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.

Order 39 Rule 1 says thus: 1. Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

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.

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

What would be the position if a court which passed the order granting interim ex parte 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.

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.

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.

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 Rule3-A.

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.

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.

It is the acknowledged position of 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.

Supreme Court of India

A. Venkatasubbiah Naidu vs S. Chellappan And Ors on 19 September, 2000

Bench: K.T. Thomas, R.P. Sethi

Citation;AIR 2000 SC 3032

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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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Failure to vacate or decide exparte injunction within fixed time shall for the purpose of filing of appeal shall be treated as final order

It is the acknowledged position of 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.

Supreme Court of India

A. Venkatasubbiah Naidu vs S. Chellappan And Ors on 19 September, 2000

Citation:AIR 2000 SC 3032

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