Karnataka High Court
Mr. R.K. Jain vs Sri P.G. Chacko on 24 April, 2013
Equivalent citations: AIR 2013 KARNATAKA 142, (2013) 3 KCCR 2262
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.16118/2013 (GM-CPC)
BETWEEN:
Mr. R.K. Jain,
Aged about 63 years,
Editor, Printer & Publisher,
Excise Law Times
Centax Publications Pvt. Ltd.,
1512-B, Bhishm Pitamah Marg,
Opp: ICICI Bank of Defence Colony,
New Delhi - 110 003.
And residing at C-455,
Defence Colony,
New Delhi - 1102 024.
...PETITIONER
(By Sri Manmohan P.N., Adv.)
AND:
Sri P.G. Chacko,
S/o. P.O. George,
Aged about 61 years,
Judicial Member, Customs,
Excise and Service Tax Appellate
Tribunal, South Zonal Bench (Bangalore),
1st Floor, WTC Building,
2
FKCCI Complex,
Kempe Gowda Road,
Bangalore - 560 009.
.. RESPONDENT
(By Sri Dhyan Chinnappa, Adv.)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order dated
9.1.2013 and the order dated 13.3.2013 passed in
O.S.No.336/2013 in I.A.No.1 by the Court of VIII ACCJ at
Bangalore vide Annexure-C.
This petition coming on for orders this day, the Court
made the following:
ORDER
An ad-interim exparte order of temporary injunction granted in O.S.No.336/2013 on 09.01.2013 by the VIII Additional City Civil & Sessions Judge, Bangalore, has been questioned in this writ petition.
2. The respondent/plaintiff is working as a Judicial Member in Customs, Excise and Service Tax Appellate Tribunal, South Zonal Branch (Bangalore). The petitioner/defendant is the Editor, Printer and Publisher of Excise Law Times, Central Publication Pvt. Ltd., New Delhi- 3 110 003. Suit has been instituted for granting of the following reliefs:-
a. MANDATORY INJUNCTION commanding the Defendant to tender unqualified apology to the Plaintiff for having published defamatory matter captioned "[E.L.T. Bureau Adds]" on pages A85 and A86 of "Tit-Bits/NEWS & VIEWS" section of Excise Law Times Vol. 280 Part 3 dated 18th June, 2012, and to publish such apology in Excise Law Times conspicuously;
b. PERMANENT INJUNCTION restraining the Defendant, his employees, concerns, companies, agents or any person claiming through or under the Defendant from printing, publishing or spreading in any manner whatsoever, whether in Excise Law Times or otherwise, any defamatory statement or material calculated to defame the Plaintiff in any manner whatsoever;
c. DAMAGES of a sum of Rs.1/- (Rupee One Only) to be paid by the Defendant to the Plaintiff;
d. PASS any such other order/s including Costs as this Hon'ble Court may deem fit and proper in the facts of the case in the interests of justice.
3. Along with the plaint, I.A.No.1/2013, under Order 39 Rules 1 and 2 CPC, to grant an ad-interim exparte order of temporary injunction restraining the defendant, his employees, concerned companies, agents or any person claiming through or under the defendant from printing, publishing or spreading in any manner whatsoever either in Excise Law Times or any other report or through any other reporter or any print media or 4 otherwise, any defamatory statement or material calculated to defame the plaintiff in any manner whatsoever, having been filed, the Trial Judge passed an order dated 09.01.2013. The same being material is extracted hereinbelow.
"In this case, the learned counsel appearing for the plaintiff is filed I.A.1 U/O.39 Rules 1 and 2 of CPC seeking TI against the defendant. I heard the learned counsel and perused IA No.1 along with accompanying affidavit and relevant documents on record. It is the contention of counsel for the plaintiff that the defendant may again publish defamatory statement or material against the plaintiff. In view of that I deem, it is just and proper, at this stage of the case, to grant temporary injunction.
Hence, I proceed to pass the following:
ORDER Temporary Injunction is hereby granted in favour of the plaintiff against the defendant restraining him and anybody else under him from printing, publishing or spreading any defamatory statement or material circulated (excise Law times) or any other reporter or through any print media to defame the plaintiff in any manner until next date hearing.
Plaintiff to comply relevant provisions of law if any (Order 39 Rule 3). Issue emergent summons and notice on I.A.1 to the defendant as per PF memo returnable by 13.03.2013."
(underlining is by me)
4. Mr. Manmohan P.N., learned advocate, contended that the impugned order is ex-facie arbitrary, the same having been passed in utter disregard of the mandate under Rule 3 of Order 39 CPC. He submitted that 5 though the defendant filed statement of objections to I.A.No.1/2013 and two applications (i) under Order 39 Rule 4 and (ii) under Order 7 Rule 11 of CPC on 13.03.2013 and opposed the extension of the temporary injunction, the matter was adjourned to 15.04.2013 by extending the T.I., until further orders. He submitted that in view of an application filed on 16.03.2013 seeking advancement of the case to 19.03.2013, the case was advanced to 21.03.2013 and the matter was heard for sometime and was again adjourned to 22.03.2013, 27.03.2013, 01.04.2013, 04.04.2013, 10.04.2013 and 17.06.2013. He submitted that since the impugned order is perverse, capricious and having been passed in utter violation of settled principles of law in the matter of grant of exparte temporary injunction, the same is liable to be quashed.
5. Mr. Dhyan Chinnappa, learned advocate, on the other hand contended that in view of availability of the alternative remedy under Order 39 Rule 4 CPC and the 6 defendant also having filed such an application on 13.03.2013, it is not open to the petitioner to by-pass the statutory remedy and hence, writ petition is not maintainable. He placed reliance on a judgment dated 08.06.1998 passed in W.A.No.1917/1998 (M/s. EDS Technologies Private Limited Vs. M/s Parametric Technology (India) Pvt. Ltd., and others) and also on an order dated 11.01.2000 passed in C.R.P.No.3687/1999 (NSK Limited and others Vs. Exim Network Private Limited) and sought dismissal of the writ petition.
6. Perused the writ record. The impugned order shows that the Trial Judge by merely taking note of the contention of the counsel that the defendant may again publish defamatory statement or material against the plaintiff, granted exparte temporary injunction. In the circumstances, it has to be seen whether the impugned order satisfies the requirement of Order 39 Rule 3 CPC?
7. Order 39 Rule 3 CPC reads as follows:
7
"3. Before granting injunction, Court to direct notice to opposite party.- The Court shall in all 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]"
The said provision is not obligatory, but is mandatory.
The proviso inserted by Act No.1/1976 makes it clear that where a court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself would be defeated by delay, shall record the reasons why an 8 exparte order of injunction is being passed. It is for the said reason that it is mandatory for a court granting an order of exparte injunction to record reasons.
8. In the case of United Commercial Bank Vs. Bank of India and others, (1981) 2 SCC 766, in the matter of grant of injunction by a Court, Apex Court has held as follows :-
"51. In the instant case, the High Court has assumed that the plaintiff had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment 'under reserve', nor was it justified in holding that the documents were 'clean'. The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were 'clean' or 'unclean' is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no 'due presentation' of the bills of exchange and their refusal.
52. 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 9 on the 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."
9. In the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others, (1993) 3 SCC 161, in the matter of grant of exparte injunction, Apex Court has held as follows:
"34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the Court shall in all 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". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that 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 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint 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 10 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 conditions has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not 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, (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 (2). 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 Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915.
35. 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. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned."
(emphasis supplied)
10. In the case of Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225, Apex Court has enunciated the principles which govern the grant of exparte injunction by a Court. The principles which have been laid down are: 11
"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."
(underlining is by me for emphasis)
11. The impugned order, when perused, it is crystal clear that it is bereft of any reason. Trial Judge without reference to any material has assumed that the plaintiff has a prima facie case. He has not touched upon the question where the balance of convenience lies, nor has he dealt with the question, whether the plaintiff would be put 12 to irreparable loss, if no injunction is granted. He has not adverted to the other elements, such as acquiescence and whether the plaintiff has approached the Court without any delay and the finding recorded, noticed supra, is perverse and capricious. Mechanically, temporary injunction has been granted. The ratio of the decisions, noticed in paras 8, 9 & 10 (supra), has grossly been breached.
12. The Trial Court has also not kept in view the provision under Order 39 Rule 3-A CPC, which reads as follows:
"3-A. Court to dispose of application for injunction within thirty days.- 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."
(emphasis supplied) In the case of A. Venkatasubbaiah Naidu Vs. S. Chellappan and Others, (2000) 7 SCC 695, Apex Court has held that the said rule does not say that the period of the injunction order should be restricted by the Court to 30 13 days at the first instance, but the court should pass the final order on it within 30 days from the date on which the injunction was granted. While considering the consequence, if any, on account of the court failing to pass the final orders within 30 days as enjoine1d by Rule 3-A, it has been held as follows:
" 19. 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.
20. 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.
21. 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 which 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 14 a case where the mandate of Order 39 Rule 3-A 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. "
13. It is trite that the jurisdiction under Article 227 of the Constitution should be exercised sparingly and having regard to the facts and circumstances of each case. In other words, interference under Article 227 can be in exceptional cases where a Court or Tribunal has acted in flagrant violation of law.
14. In the case of Achutananda Baidya Vs. Prafullya Kumar Gayen, (1997) 5 SCC 76, while dealing with the power of superintendence of the High Court under Article 227 of the Constitution, Apex Court has held as follows:-
15
"10. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice."
15. In the case of Industrial Credit and Investment Corporation of India Ltd., vs. Grapco Industries Ltd., and others, (1999) 4 SCC 710, with regard to scope of interference under Article 227 of Constitution, with an interim order passed by a Court or Tribunal, Apex Court has held as follows:-
"14. High Court also said that on merits as well the Tribunal was wrong in granting an ex parte order. It is not that High Court itself considered the merits of the case. The objection of the High Court was twofold : (1) the Tribunal did not give any reasons, and (2) it was an omnibus order and that there was no reference even to prayers in the application and that the prayers stood allowed "in terms of entire hog". Criticism of the High Court appears to be correct on that account. The judgment of the High Court, however, does not refer at all to the facts of the case and it proceeds 16 more on abstract principles of law. There was no bar on the High Court to itself examine the merits of the case in the exercise of its jurisdiction under Article 227 of the Constitution if the circumstances so require. There is no doubt that High Court can even interfere with interim orders of the courts and tribunals under Article 227 of the Constitution if the order is made without jurisdiction."
16. In the case of Surya Dev Rai vs. Ram Chander Rai and others, (2003) 6 SCC 675, Apex Court while considering a case where the appellant before it had filed a civil suit for permanent injunction based on title and possession over the suit property and had filed an I.A. under Order 39 Rules 1 and 2 CPC, which was rejected by the Trial Court and also by the Appellate Court and the petition filed under Article 227 having been dismissed, while considering the scope of Article 227 of the Constitution has held as follows:
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
*** *** *** (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction 17 which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."
(underlined by me for emphasis)
17. In the case of Kishore Kumar Khaitan and another vs. Praveen Kumar Singh, (2006) 3 SCC 312, with regard to jurisdiction under Article 227 of the Constitution, Apex Court has held as follows:-
"13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiff's claim of possession."
(underlined by me for emphasis) 18
18. In the instant case, exparte temporary injunction was granted on 09.01.2013 for a period beyond 30 days i.e., up to 13.03.2013. Even after the defendant filed objections to I.A.No.1/2013 and also filed an application under Order 39 Rule 4 CPC, on 13.03.2013, without even recording any reason as to the inability for not taking up for consideration and deciding I.A.1/2013, the case has been repeatedly adjourned, which is clear from the hearing dates, noticed in para 4 supra. Even no reason has been recorded, while repeatedly extending the exparte injunction.
19. The Judgment dated 08.06.1998 passed in W.A.No.1917/1998 (supra), was followed in the order dated 11.01.2000 passed in C.R.P.No.3687/1999. Following a decision in the case of M/s Parijatha V/s Kamalaksha Nair, AIR 1982 Kar 105, it has been held that revision petition filed without exhausting remedy available under Order 39 Rule 4 CPC is not maintainable. In the 19 instant case though objection to I.A.1/2013 and also an application under Order 39 Rule 4 CPC was filed on 13.03.2013, there is material omission on the part of the trial Judge and there is miscarriage of justice. In view of the ratio of law in the decisions noticed at paras 8 to 10 & 12(supra), the Judgment and Order on which Mr. Dhyan Chinnappa placed reliance, in my opinion, has no application to the instant case.
20. In this case, there is not only material irregularity in passing the impugned order, but also perverse approach to the matter. Hence, this is a fit case for interference in exercise of supervisory jurisdiction under Article 227 of the Constitution, since the Trial Judge has breached the principles and parameters laid down by the Apex Court in the matter of grant of exparte temporary injunction. In the circumstances of the case, a need for directing the Trial Court to decide the application afresh, within a time frame has arisen.
20
In the result, writ petition is allowed and the impugned order is quashed. The Trial Court is directed to consider I.A.No.1/2013 and decide the same on merit and in accordance with law.
Both the parties are directed to appear before the Trial Court on 25.04.2013, to which date the suit shall stand advanced. Learned Trial Judge is directed to hear the matter and decide the application for grant of ad-interim temporary injunction before 27.04.2013.
Parties to bear their own costs.
Sd/-
JUDGE Ksj/-