Orissa High Court
Bidulata Das vs Braja Bihari Palit And Ors. on 12 March, 1992
Equivalent citations: AIR1993ORI78, AIR 1993 ORISSA 78
ORDER S.C. Mohapatra, J.
1. Plaintiff is petitioner in this civil revision.
2. In the suit for title, possession and permanent injunction with other consequential reliefs in respect of a house in Cuttack town, plaintiff filed an application for temporary injunction against defendant No. 1 along with the application for temporary injunction, plaintiff filed an application invoking power of the trial court to record reasons as required under Order 39, Rule 3, C.P.C., for passing an order of ex parte ad interim injunction. Trial court having refused to exercise such power, plaintiff filed an appeal against the order treating it to be refusal to pass an order of injunction. Appellate court dismissed the appeal on the finding that the appeal is not maintainable. This is grievance of the plaintiff in the revision.
3. Short question for consideration is whether an appeal lies against an order of the court declining to pass an ex parte ad interim order of injunction.
4. It is now settled by this Court in 1975 (1) CWR 18 (Padmanav Das v. Dhabaleswar Satpathy) that an appeal lies against an order of ex parte ad interim injunction. In 1989 (II) OLR 455 : (AIR 1991 NOC 70) (Naliniprava Patnaik v. Smt. Jyotirmayee Das) it has been held that no appeal lies against an order of the Court refusing to pass an ex parte order of ad interim injunction without notice as provided under Order 39, Rule 3, CPC.
5. Normally, earlier decision of this Court in 1989 (II) OLR 455 : (AIR 1991 NOC 70) (supra) is binding on me. Mr. B. H. Mohanty, learned counsel for the petitioner however, submits that the said decision requires reconsideration. Mr. M. M. Sahoo, learned counsel for respondent No. 1 submitted that the principle decided in the aforesaid decision is correct and requires no reconsideration.
6. Mr. B. H. Mohanty, learned counsel for the petitioner submitted that an order declining to pass an ex parte order of injunction before notice is an order refusing to pass an order under Rule 1 or 2 of Order 39 and accordingly is an order thereunder since Order 39, Rule 3, CPC, does not envisage any order to be passed. Accordingly, Order 43, Rule l(r) CP.C vests right on a party to prefer appeal. Mr, Mohanty relied upon the decisions reported in AIR 1982 Sikkim 20, (Ashok Tahering Lama v. Tahering Wangdi) and AIR 1984 Gau 86 (Akmal Ali v. State of Assam) in support of his contention.
7. When an application for granting temporary injunction under Order 39 Rule 1 or Rule 2 C.P.C. is filed in a Court by a party, natural justice demands that a party against whom the order is sought for is to be given opportunity of being heard since an adverse order is prayed is to be passed against him. This is reflected under Order 39, Rule 3, CPC. Situation, however, may demand an immediate order which if not passed would defeat the very purpose of the application. Since Courts were exercising the power under Order 39, Rule 1 or 2, CPC liberally to pass an ex parte order of injunction, whereafter, parties getting the order were trying to delay the final hearing of such an application. Parliament took note of the same and has inserted a proviso to Order 39, Rule 3, CPC, prohibiting a Court from passing an order ex parte without notice to the adverse party and required that in case of emergency where it is proposed to grant an injunction without giving notice of the application to the opposite party, Court is to record the reason for its opinion that the object of granting injunction would be defeated by delay.
8. It has been held in AIR 1982 Orissa 245 (State of Orissa v. Orissa Oil Industries Ltd.) that in case, reasons are not recorded as required under Order 39, Rule 3 proviso, the order is to be taken as illegal. This decision has been relied on in a latter decision reported in (1987) CLT (Supp) 198 (Raghunath Jew Takhur v. Sk. Alii Hussain).
9. In view of the aforesaid two decisions, it is clear that a duty is cast on the Court to first consider whether it would consider the question of granting an injunction without giving notice of the application for injunction to the opposite party. Only question at that stage is to consider the nature of emergency. Its satisfaction is to be recorded in writing supported by reasons. When it is not satisfied, it has only to direct issue of notice Such an order is not an order under Order 39, Rule 1 or 2, CPC. When the Court is not satisfied that it should consider the application for temporary injunction under Order 39, Rule I and 2, CPC. before notice to opposite party, it does not pass an order under Order 39, Rule 1 or 2 CPC. It postpones the consideration of such application to a later date after notice to the opposite party as envisaged under Order 39, Rule 3 proviso CPC. Such order not being an order under Order 39, Rule 1 or 2 CPC, right of appeal Order 43, Rule l(r) cannot be exercised in respect of such an order.
10. An order under Order 39, Rule 1 or 2 CPC, may be either by grant of temporary injunction or refusal to grant such injunction. Where that order is passed ad interim for further consideration it has the same effect as an order of temporary injunction till it remains in force. Thus, right of the party restraining is effected. In that view of the matter, an appeal lies against such an order. Where, however, the Court adjourns such an application to the future date after notice to opposite party, no right of any party is affected. Application of the party making the application remains pending for future consideration. Such an order cannot be treated as an order refusing to grant injunction. An illustration would make the position clear. Court hears the application ex parte after recording reason there for as envisaged under Order 39, rule 3 proviso CPC. After hearing it reserves the order to be passed of another date. It cannot be said that immediate order not having been passed, the same amounts to refusal to grant ex parte ad interim injunction.
11. Thus, on the reasons indicated by me there being no refusal to grant injunction, appeal does not lie. This is in addition to the reasons indicated in 1989 (II) OLR 455: (AIR 1991 NOC 70) (supra).
12. In AIR 1982 Sikkim 20 (Ashok Tahering Lema v. Tahering Wangdi), it was observed as follows ;--
"........when a party makes an application for an immediate and ex parte order of injunction and the Court refuses to grant such an injunction and instead issues notice of the application to the opposite party, the order of refusal would be an order under Rule I or Rule 2, as the case may be and not under Rule 3 and hence appealable under Order 43 Rule 1 (r)....."
13. I have already given illustration how such an order would not amount to refusal to grant of injunction. Thus, I am not inclined to accept the reasons in the said decision. Decision of Full Bench of Gauhati High Court reported in AIR 1984 Gau 86 (supra) was considering the question whether an appeal lies under Order 43 Rule I (r) of the CPC. 1908 against the ex parte order of ad interim injunction. Gauhati High Court held that an appeal lies. This is also the view of this Court reported in 1975 (1) CWR 18 (supra). Mr. Mohanty, however, relies upon an observation in paragraph 8 which reads as follows :--
".......We hold that an order made under Order 39, Rule 1, 2 and 4 refusing to grant an ex parte order of ad interim injunction is appealable because Order 43 Rule l(r) enables a party to prefer an appeal against "an order", positive or negative, passed under Rule 1, 2, 2-A and 4 of Order 39. An order refusing an ad interim injunction is a negative order, but falls within the expressions "an order."
14. When a negative order is passed the application stands disposed of and an appeal would lie. Where the application for injunction under Order 39, Rule 1 or 2, CPC, does not stand disposed of and remains pending for future consideration, no appeal lies. Same would not be the case where on injunction is granted exparte as an ad interim. Although an application does not stand disposed of, it has prejudicial effect on the right of a party. Accordingly, appeal lies. Postponement of consideration of an application to a future date does not amount to a negative order as envisaged in the aforesaid passage.
15. Supreme Court has made it clear in the decision reported in AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekhar Misra) that it is not profitable task to extract a sentence here and there from a judgment and to base upon it. Accordingly, the decision of Gauhati High Court is to be read on the facts and circumstances in which it was rendered. In the aforesaid decision, it has been observed that a decision is only an authority for what it actually decides and what is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.
16. Mr. Mohanty in course of submission brought to my notice that the application for injunction in the trial court is not being heard since notice is not sufficient on opposite party No. 1. Since opposite party No. 1 has entered appearance in this Court through Mr. M. M. Sahoo, I treated the Order P. No. has sufficient notice of the proceeding pending in the trial court. Mr. Mohanty shall serve a copy of the petition for injunction on Mr. M. M. Sahoo with a memorandum indicating the date to which the application is posted, on basis of which, opposite party No. 1 if so advised may appear on the date fixed and show-cause, failing which it shall be accepted by the trial court that notice on him is sufficient and there-upon proceed to dispose of the application in accordance with law.
17. In the result, there is no merit in this civil revision which is accordingly dismissed. No costs.