Karnataka High Court
Gopal Ahuja vs Sanman Distributors Private Ltd. on 20 August, 1993
Equivalent citations: ILR1993KAR3275
ORDER Shivappa, J.
1. Petitioners are defendants 1 and 2 in the suit O.S. 10513/93. The first respondent herein as plaintiff filed that suit against the petitioners and 5 others for declaration that they cannot project themselves as Directors of the plaintiff-Company and also for permanent injunction restraining the defendants 1 to 7 either by themselves or through their agents, officials, workmen etc. representing themselves as Directors of the Company and not to interfere with the affairs of the plaintiff Company. The plaintiff filed I.As.l & II under Order 39 Rules 1 & 2 C.P.C. The learned Judge ordered summons to defendants 1 to 7 and restrained defendants from interfering with the management and affairs of the plaintiff-Company and representing or acting as Directors of the Company till the disposal of I.As. I & II. It is this ex parte order of temporary injunction that is under challenge in this Petition.
2. It is submitted by the learned Counsel for the petitioners that the petitioners have not yet entered appearance in the suit. It is contended that it is obligatory on the part of the Court, before granting interim injunction, to record reasons for its opinion that the object of granting injunction would be defeated by delay. In support of the contention the learned Counsel cited a Decision of the Supreme Court in SHIVAKUMAR CHADHA v. MUNICIPAL CORPORATION OF DELHI, 1993(2) SCC 161. That was a case where a direction was issued on an application for interim injunction filed in the suit against an order of demolition/stop all unauthorised construction under the Delhi Municipal Corporation Act. The Supreme Court held that the requirement for recording reasons for grant of an ex parte injunction cannot be held to be mere formality. The requirement of serving notice is not to take any party by surprise. Proviso to Rule-3 of Order 39 C.P.C. has been inserted by the amending Act of 1976. Order 39 Rule 3 provides that the Court shall in the cases (except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction) direct notice of the application to be given to the opposite party. The Court has to weigh the consequences of an ex parte order and if it comes to the conclusion not granting an ex parte order without service of notice would result in serious consequence to the party seeking ex parte order then the Court has to assign reasons for non-issuing of notice to the other side. Only in exceptional cases where the Court finds for very good reasons which it would be advisable for the Court to record its reasons it would be justified in passing interim ex parte order of grave nature. The Court should not act casually in granting ex parte injunction. There are several statutes which require the authority to record reasons before exercising the power under the Statute.
3. This Court in INDUSTRIAL CREDIT & DEVELOPMENT SYNDICATE v. B.SURYANARAYAN BHAT, held that non-compliance of the mandatory provisions contained in Rule-3 of Order-39 is a very grave error.
4. In the instant case the learned Judge has set out the brief facts and the nature of the dispute, claim of the parties and the hardship or injury that may likely to ensue in the event of not granting ex parte order of injunction. At para-3 he has also formed opinion about the prima facie case on perusal of the records. However, specifically he has not stated the reasons why notice to defendant is dispensed with. It is not as though the Judge has granted an ex parte order without referring to the averments in the plaint or prima facie case or that he has lost sight of the injury or hardship that may likely to cause in the event of not granting ex parte temporary injunction. He has posted the case, to 6.9.1993, but observed that the plaintiff shall comply with Order 39 Rule-3(a) C.P.C.
5. Learned Counsel for respondents contended that the Civil Revision Petition is not maintainable under Section 115 C.P.C. unless the petitioners exhaust the remedy as provided under Order 39 Rule 4 CPC or the appeal provided in the Code in Sub-clause (2) of Section 115 CPC. Sub-clause 2 of Section 115 CPC contemplates "High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto," As stated earlier, petitioners have not entered appearance and have not filed objections. Nothing prevented them to exhaust the remedy provided under Order 39 Rule 4 C.P.C. When the Code provides a particular thing should be done in a particular manner, it should be done In that manner and in that manner alone. This proposition is approved by the Supreme Court in the Decision reported in RAMACHANDRA KESHAV ADKE (dead) by LRs. v. GOVINDJOTI CHAVARE AND ORS., . This Court also in Industrial Credit and Development Syndicate v. B. Suryanarayana Bhat has held that 'the defendant has got an opportunity to file an application under Order 39 Rule 4 of the Code of Civil Procedure to vacate the temporary injunction. Similar view was taken by the Madras High Court in the Decision reported in RAMALINGA NAICKER v. CHENNAKRISHNA KONAR AND ORS., . When the Code provides a particular mode, to seek reversal or setting aside or annulment of an order, the person aggrieved by the ex parte order need not rush to the High Court. Interfering with such an order amounts to bypassing the remedy provided under the Code. Whatever contentions the petitioners have on the merits regarding prima facie case or irreparable injury, it is for them to urge the same before the trial Court since the order impugned is an ex parte order.
6. Before parting with the case it is necessary to mention that the trial Court should not ignore the mandatory provisions of the Code, that too when the Supreme Court and this Court have held that non-observance of the mandatory provisions of Rule-3 of Order 39 is a grave error. As a note of caution it is made clear that the trial Courts shall not commit breach of this provision since the object being, obtaining an ex parte order behind the back of the adversary should not be encouraged by the Court. At the time of granting ex parte injunction the Court should not act casually and in a cavalier fashion but pass orders only after adverting to all the facts and circumstances of the case. Since the petitioners have a right to seek discharge or variation or to set aside the ex parte order by raising objections, the order impugned need not be set aside. However, it does not mean such a course has been approved by this Court.
7. In the result, i pass the following 'Order':
1) The Petition is dismissed.
2) Petitioners may approach the trial Court which passed the ex parte order of injunction under Order 39 Rule 4 C.P.C. and exhaust the remedy as provided in the Code.
3) In the event of the petitioners approaching the trial Court, the trial Court shall dispose of the application expeditiously uninfluenced by the observations or impressions he has gathered while setting out the facts regarding the prima facie case in the order.
4) Parties to bear their own costs.