Madras High Court
Virudhunagar Hindu Nadargal vs V.M.A.R.T. Ramesh on 13 August, 2014
Author: T. Mathivanan
Bench: T. Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 13.8.2014 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN C.R.P.(NPD) (MD).No.1095 of 2014 and 1132 of 2014 and M.P.Nos.1+1 of 2014 Virudhunagar Hindu Nadargal Abiviruthi Panchukadai Mahamai Rep. by its Secretary No.238, Railway Feeder Road Virudhunagar. ... Petitioner in C.R.P.No.1095 of 2014 Versus
1.V.M.A.R.T. Ramesh Door No.5/1, Kasthuri Bai Road Virudhunagar.
2.J.Sundar
3.S.S.K.C.C. Gandhi Rajan
4.S.P.Vijayakumar
5.P.P. Leelavathi
6.P.A.P. Rajamohan
7.M.S.G. Vanniarajan
8.M.Thangam
9.K.S.Thaiyal Nayaki
10.M.S.G. Murugan
11.M.A.S.N. Navamanai Nadar
12.O.T.S.V.N. Padmanaban
13.N. Mangaiarkarasi
14.M.Jeyapriya
15.K.N. Sivakumar
16.N. Kanchana Mala
17.Mareeswaran
18.T.C.S.P.S. Krishnamoorthy
19.A. Subatharini
20.D.Ganesh Kumar
21.M. Banu Mathi
22.S.Susitha
23.K. Viswsanath
24.D.Murugesan
25.M.S.K.J. Madhan
26.Sakthi Bama
27.M.P.M. Raghu Nathan
28.M/s.PCS Floor Mills
29.M/s. O.T.S.V. Sankar & Co.
30.M/s. True Traders
31.M/s. V. Palanisamy & Co.
32.M/s.Jai Krishnan & Co.
33.M/s. Seeniappa Traders
34.M/s.Jeya Vaishnavi Traders
35.M/s. Balaji Hospital
36.M/s. Srinithi Medicals
37.M/s.Mami Foods Pvt. Ltd.
38.M/s. Ramalakshmi Mills
39.M/s.Shri Bagavathy Amman & Co
40.M/s.P.C.S. Traders
41.M/s.M.V.R. Siva Subramaniya Nadar & Sons
42.M/s.K.T. Ramakrishnan & Co.
43.M/s.Maamis Masala
44.M/s.S. Dhamayanthi Ammal & Co.
45.M/s.P.C.S. Govindaraja Perumal & Co.
46.M/s.P.C.S. Narayana Moorthy & Co.
47.M/s. Saravana Ganesh & Co.
48.M/s.Suraj & Co.
49.M/s.R. Mohan Marumuthu & Sons
50.M/s.T.C.S. Jeyaram & Company
51.M/s. Maamis Traders
52.M/s.Shri Ramalakshmi & Co.
53.M/s.M.V.R. Rajasekaran Nadar & Sons
54.M/s.R.NB.Rathina Selvi & Co.
55.M/s.O.T.S.V.N. Vairamanni & Sons
56.M/s.P.C.N. Raghavan & Co.
57.M/s. Jai Agency
58.M/s.Shri Arunachalam Cotton Traders
59.M/s. T.C.S.P.D. Subramanian & Sons
60.M/s.Aruna Tin Industries
61.M/s.T.C.S.P.D. Balakrishnan & Sons
62.M/s.Sivakami Trading Co.
63.M/s. Jeya Gopal Cotton Traders
64.M.S.P. Senthilkumar
65.M/s.M.S.N.Jeyapal & Son
66.M/s.S.T.Rathinam & Co.
67.M/s.S. Ramasamhy and Brothers
68.M/s.P.A.V. Kandhasamy Nadar & Co.
69.M.V.R.Vadivel Nadar
70.M/s.Rajeswari Trading Company
71.M/s.P.C. Kannan & Co.
72.M/s.M.S.A. Vairava Nadar & Sons
73.M/s. Balaji Commission Mandi
74.M/s. V.Vijayakumar & Co.
75.M/s.Sri Mahalakshmi Cotton Traders
76.M/s.M.P.M.Panalisamy & Sons
77.M/s.M.A.M.Ramasamy Nadar & Sons
78.M/s. Sri Srirama Rajammal Company
79.M/s.T.C.S. Perumal Nadar Sons & Co.
80.M/s. V.M.A.C.K. Peria Karuppa Nadar & Sons
81.M/s.T.C.S.P. Chinnasamy Nadar & Co.
82.M/s.P.C. Sundararajan & Co.
83.M/s. K.R.M. Ganapathy Nadar ..Respondents in C.R.P.No.1095 of 2014
1.S.S.K.C.C. Gandhi Rajan
2.M.S.G. Vanniya Rajan
3.M.S.G. Murugan
4.M.A.S.N.Navamanni Nadar
5.N. Mangayarkarasi
6.N. Kanjanamala
7.V. Mareeswaran
8.P.S. Krishnamoorthy
9.A. Subatharini
10.K.Viswanath
11.D. Murugesan
12.M.S.K.J. Mathan
13.Shakthi Pharma
14.P.C.S. Flour Mills
15.O.T.S.V. Shankar & Co.
16.V. Palanichamy & Co.
17.Jai Krishnan & Co.
18.Jaya Vaishnavi Traders
19.Srinithi Medicals
20.S. Dhamayanthi Ammal & Co.
21.P.C.S. Narayana Moorthy & Co.
22.Suraj & Co.
23.R.N. Rathina Selvi & Co.
24.OT.SV.N.Vairamani & Sons
25.P.C.N.Ragavan & Co.
26.Jai Agency
27.Sri Arunachallam Cotton Traders represented by its Proprietor Mr.D. Rajendiran
28.T.C.S.P.D. Subramanian & Sons represented by its Proprietor Mr.P.D. Subramanian
29.Aruna Tin Industries Rep. By its proprietor Mr.S. Muralitharan
30.T.C.S.P.D. Balakrishnan & Sons Rep.by its partner T.C.S.P.D. Balakrishnan
31.M.S.P. Senthilkumar
32.M.S.N. Jeyabal & Sons
33.S.T.Rathinam & Co.
34.S.Ramasamy & Bros.
Rep. By its partner M.V. Ramasamy
35.P.A.V. Kandasamy Nadar & Co.
36.P.C.Kannan & Co.
37.M.S.A. Vairavan Nadar & Sons rep. by its proprietor Mr.V. Kanniyathesai
38.Balaji Commission Mandy rep. by its Partner Mr.M. Dheen Singh
39.Vijayakumar & Co.
rep. by its partner V. Palanichamy
40.Sri Mahalakshmi Cotton Traders rep. by its Partner M.S.N. Jayaraman
41.Sri Sri Rama Rajammal Company rep. by its proprietor Mr.V.R. Sathyanarayanan
42.K.M.ACK. Periya Karuppa Nadar & Sons rep. by its partner Mr.K.T. Chandrasekar
43.P.C. Sundar Rajan & Co.
rep. by its partner P.C. Sundar Rajan
44.K.R.M. Ganapathy Nadar rep. by its Proprietor Mr.K.R.M.G. Gunasekaran ...Petitioners in C.R.P.No.1132 of 2014 Vs.
1.V.M.A.R.T. Ramesh
2.J.Sundar
3.Virudhunagar Hindu Nadargal Abiviruthi Panchukadai Mahamai rep. by its Secretary.
4.S.P. Vijayakumar
5.P.P. Leelavathy
6.P.A.P. Rajmohan
7.M.Thangam
8.K.S. Thaiyalnayaki
9.O.T.S.V.N.Padmanaban
10.M.Jeyapriya
11.K.N.Sivakumar
12.D.Ganesh Kumar
13.M.Banumathi
14.A. Susila
15.M.P.M. Ragunathan
16.M/s. True Traders
17.M/s.Seeniappa Traders
18.M/s. Balaji Hospital
19.M/s. Mami Foods Pvt. Ltd.
20.M/s.Ramalakshmi Mills
21.M/s.Sri Bagavathy
22.M/s.P.C.S. Traders
23.M.V.R. Sivasubramaniya
24.M/s. K.T. Ramakrishnan & Co.
25.M/s. Mami's Masala
26.M/s. P.C.S. Govinda
27.M/s. Saravana Ganesh & Co.
28.M/s.R. Mohan
29.M/s.T.C.S.P. Jeyaram
30.M/s.Mamis Traders
31.M/s.Sri Ramakrishnans'& Co.
32.M/s.MV.R.Rajasekaran
33.M/s. Sivakami
34.M/s. Jeya Gopal
35.M.V.R. Vadivelu Nadar
36.M/s. Rajeswari
37.M/s.M.P.M. Palanichamy
38.M/s.N.A.M.O. Ramasamy
39.T.C.S. Perumal Nadar
40.M/s. T.C.S.P. Chinnasamy ..Respondents in C.R.P.No.1132 of 2014 Prayer Revision petitions are filed against the order, dated 28.4.2014 passed in I.A.No.185 of 2014 in O.S.No.70 of 2014 on the file of the learned District Munsif, Virudhunagar.
!For Petitioners in CRP.No.1095 of 2014 : Mr.AR.L. Sundaresan, Senior Counsel, for M/s. A.L.Gandhimathi ^For Petitioners in CRP.No.1132 of 2014 : Mr.M. Vallinayagam, Senior Counsel, for Mr.Nallathambi For Respondents in CRP.No.1095 of 2014 : Mr.M. Vallinayagam, Senior Counsel, for Mr.Nallathambi For Petitioners in CRP.No.1132 of 2014 : Mr.AR.L. Sundaresan,Senior Counsel, for M/s. A.L.Gandhimathi :COMMON RDER After invoking the jurisdiction of this Court under Article 227 of the Constitution of India, this memorandum of civil reivisions are directed against the fair and decretal order, dated 28.4.2014 and made in I.A.No.185 of 2014 in O.S.No.70 of 2014 on the file of the learned District Munsif, Virudhunagar.
C.R.P.No.1095 of 2014:-
2. The revision petitioner is the first respondent/first defendant, whereas the respondents 1 and 2 are the plaintiffs 1 and 2 and the respondents 3 to 83 are the defendants 2 to 82 in the suit.
C.R.P.No.1132 of 2014:-
3. The revision petitioners 1 to 44 are the defendants 2, 6, 9, 10, 12, 15, 16, 17, 18, 22 to 25, 27, 28, 30, 31, 33, 35, 43, 45, 47, 53 to 60, 63 to 67, 70 to 74, 77, 79, 81 and 82 in the suit, whereas the first and second respondents are the plaintiffs 1 and 2 and the remaining respondents are the remaining defendants in the suit.
4. With the parties to the revision petitions and the subject matter, which is in issue in both the revisions are one and the same, these two revision petitions have been clubbed together, heard jointly and disposed of in this common order.
5. The respondents 1 and 2 herein have filed the suit in O.S.No.70 of 2014 as against the revision petitioners as well as the other respondents in both the revisions seeking the relief of declaration to declare that the defendants 2 to 82 in the suit became disqualified or ceased to be the member of the first defendant society and consequently restrain them from exercising any right of the member of the first defendant society including the right of participation as a member in the General Body meeting of the society and also for permanent injunction to restrain the first defendant society from convening its General Body Meeting permitting the defendants 2 to 82 to participate for any purpose including for the purpose of making any amendment in the existing bye-law so as to qualify them to continue as a member of the first defendant society.
5a. It also appears that along with the above suit, the respondents 1 and 2 being the plaintiffs have also taken out an application in I.A.No.185 of 2014 under Order 39 Rule 1 and 2 C.P.C. to pass an order of injunction restraining the first defendant society from convening its General Body meeting by allowing the respondents/defendants 2 to 82 to participate in the said meeting and exercise the right of a member of it to transact and pass any resolutions including the election of the member of the General Body of the Educational Institution and other Institutions set out in the bye-law of the first defendant society and making amendment in the bye-law to qualify the respondents 2 to 82 till the disposal of the main suit and also to grant ex parte ad-interim injunction.
6. The revision petitioner in C.R.P.No.1095 of 2014, who is the first defendant in the suit is the Society appears to have been established more than 180 years back by the Hindu Nadars of Virudhunagar, who are doing business in cotton and other agricultural products. Subsequently, it was registered under the Tamil Nadu Societies Registration Act, 1975 and its registration number is S.No.57 of 1979.
7. As per the averments in paragraph 5 of the plaint, the society was established with avowed objects of promoting the public by establishing educational institution, reading rooms, hostels for poor students and educational scholarship for students and to give training for the eligible persons so as to get employment in Government and also to render all sorts of help including financial assistance to the educational institutions.
8. The Society has got its own bye-law. Rule No.2 of the bye-law contemplates the following eligibilities for becoming a member of the Society:-
a. Any Hindu Nadars of Virudhunagar or a firm of Hindu Nadars of Virudhunagar.
b. Hindu Nadar of Viruhdunagar or a firm of Hindu Nadars of Virudhunagar doing trade, business or engineering business.
c. Payment of Mahamai.
9. It also appears that any person, who satisfies the above said three requirements with the approval of the General Body of the Society shall be admitted as a member of the Society. Failure to comply with anyone of the requirements is a disqualification for him to become a member of the society.
10. In so far as the respondents 1 and 2 in C.R.P.No.1132 of 2014 are concerned, the first respondent/plaintiff is said to be the member, whereas the second respondent/plaintiff wants to become a member. As argued by Mr.AR.L. Sundaresan, learned Senior Counsel, the second respondent/plaintiff has not been accepted as a member.
11. When the second plaintiff is not at all a member of the Society, who is the second respondent herein, a crucial question is arisen as to whether he is having any competency to file the suit in joining hands with the first respondent/first plaintiff questioning the bye-law, qualifications of the members of the Society as well as the attitude of the Society.
12. As per Rule No.2 of the bye-law, any individual or Partnership Firm after becoming a member of the Society fails to pay the entire ?Mahamai amount? shall cease to hold the membership.
13. The term ?Mahamai? according to the averments in paragraph 7 of the plaint, it is only a contribution and not a subscription, as per the bye-law.
14. In the suit as well as the interlocutory application, the respondents 1 and 2 in C.R.P.No.1132 of 2014 have targeted the Society alleging that it is not following the Rule 4 of the bye-law in the matter of collection of ?Mahamai? from the members.
15. According to them, the defendants 2 to 82 have not paid ?Mahamai? on their sale turnover and therefore, they are ceased to be the members of the Society and that they cannot hold the office of the members of the Society and cannot exercise the right of the member of the Society and hence, the defendants 2 to 82 are ceased to be the members of the Society.
16. This is the pivot of the issue around which the whole edifice of the suit has been constructed.
17. For the purpose of disposing of these two revisions, this Court finds that the facts of the entire suit as well as the interlocutory application are not at all necessary and it is for the trial Court to adjudicate the suit on merits.
18. In so far as these revisions are concerned, as stated in the foregoing paragraphs, the revision petitioners have to satisfy this Court as to how this Court has got jurisdiction to entertain these revision petitions and as to how this Court can exercise its supervisory power under Article 227 of the Constitution of India, over the jurisdiction of the learned District Munsif, Virudhunagar.
19. Because the prohibitory relief sought for in the suit as well as in the interlocutory application is purely within the bounds of the jurisdiction of the trial Court. Unless and until, it is brought to the notice of this Court that the learned District Munsif, Virudhunagar, has committed a serious error in exercising his jurisdiction or it is brought to the notice of this Court that he has misused or he has been refusing to exercise his jurisdiction which he is bound to do, then this Court can exercise its supervisory powers upon the functioning of the learned District Munsif, Virudhunagar.
20. Mr.AR.L. Sundaresan, while advancing his arguments, has drawn the attention of this Court to the prayer of the suit in O.S.No.70 of 2014 as well as the interlocutory application in I.A.No.185 of 2014.
21. In this connection, he would submit that since the prayer of the suit as well as the interlocutory application are one and the same, if an order of injunction is granted, it would amount to decree the suit as prayed for.
22. As afore stated, in paragraph No.18 of the plaint, the respondents 1&2/plaintiffs 1 and 2 have stated that the suit is filed for declaring the defendants 2 to 82 are the disqualified members or ceased to hold the office of the first defendant/Society and consequently, restraining the defendants 2 to 82 from exercising any right of the member of the first defendant Society including the right of participation as a member in the General Body meeting of the Society and for permanent injunction restraining the first defendant Society from convening its General Body Meeting permitting the defendants 2 to 82 to participate for any purpose including for the purpose of making any amendment in the existing bye-law so as to qualify them to continue as a member of the first defendant Society and for other reliefs.
23. Again this Court taking the risk of repetition to refer the operative portion of the impugned order, dated 28.4.2014, wherein the trial Court has observed that, ?therefore, as the prima facie case is made out and the balance of convenience is on the side of the petitioner, this Court is inclined to grant ad-interim injunction till 16.6.2014 provided O.39 R.1&2 has to be strictly applied for issuing notice of the order to the respondents.?
24. The prayer of the interlocutory application is also very important to be referred to, which runs as under:-
?To pass an order of interim injunction restraining the first respondent/first defendant society from convening its General Body Meeting by allowing the respondents/defendants Nos.2 to 82 to participate in the same and to exercise the right of a member of it to transact and pass any resolutions including election of the member of the General Body of the Educational Institutions and other Institutions set out in the bye-law of the first respondent society and making amendment in the bye-law to qualify the respondents 2 to 82 till the disposal of the main suit and also grant ex parte ad-interim injunction to the said effect till the disposal of the application.?
25. Rule 1 of Order 39 of C.P.C., deals with ?Cases in which temporary injunction may be granted.?
26. Rule 2 deals with ?Injunction to restrain repetition or continuance of breach.?
27. Rule 3 of Order 39 indicates as under:-
?Rule 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.?
28. In this connection, Mr.AR.L.Sundaresan, learned Senior Counsel has pointed out that as contemplated under Rule 3 of Order 39 of C.P.C., it is obligatory and mandatory on the part of the trial court to issue notice to the opposite party before granting ex parte injunction.
29. He has also adverted to that the order of the Court below is contrary to the provisions of Rule 3 of Order 39 C.P.C., and therefore, the Article 227 of the Constitution of India would be attracted in this case.
30. To fortify his argument, he has placed reliance upon the following two decisions:-
a. Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others ((1993) 3 SCC 161).
b. Morgan Stanley Mutual Fund vs. Kartick Das ((1994) 4 SCC 225). 31.
In the decision first cited supra, paragraph Nos.32, 33 and 34 are more relevant, which are as under:-
?32. 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. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying 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......?
33. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
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 who 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 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 there of 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 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 purpose.
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. 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.?
32. In the decision, second cited supra, paragraph 36 assumes importance in which a three Judges Bench of the Hon'ble Apex Court has observed as under:-
?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.
33. The learned Senior Counsel has also maintained that the following two ingredients are to be considered before granting of ex parte injunction:-
a.Where the plaintiff will personally injure if the injunction is not granted.
b. Ex parate injunction can be granted only if there is an emergency = otherwise notice shall go the opposite party.
34. In support of his arguments, he has also made reference to the following decisions:-
1. The Andhra Social & Cultural Association rep. By B. Veeriah General Secretary vs. R. Karuppan (2000 (II) CTC 235).
2. Rt. Rev. Dr. V. Devasahyam, Bishop in Madras CSI and another vs. D. Sahayadoss and two others (2002 (I) CTC 458).
3. India Bulls Finance Services Limited, New Delhi and another vs. Jubilee Plots and Housing Private Limited, rep. By its Managing Director, Mr.R.P. Darmalingam, Chennai and two others(2009 (3) CTC 64).
4. Indian Evangelical Lutheran Church, rep. By its General Treasurer, Chennai-18 and four others vs. J. Rajesh and two others (2010 (5) CTC 762).
35. In the decision, first cited supra, the very same contention as that of Mr. AR.L. Sundaresan, learned Senior Counsel, was made before the learned Single Judge of this Court saying that the impugned order therein was passed in violation of the mandatory provisions of Order 39 Rule 3 C.P.C. without giving reasons.
36. On hearing the rival contentions, P.Shanmugam,J., in paragraph 5, has observed as under:-
?5. The order passed by the learned Judge does not satisfy the requirement of Order 39, Rule 3 C.P.C. The Hon'ble Supreme Court as well as this Court,. in a series of decisions, have directed the subordinate Courts that they should pass speaking orders in terms of Order 39, Rule 3 C.P.C. In all those cases, it has been held that the mandatory requirement that before granting an injunction without giving notice to the opposite party, the Court shall record reasons for its opinion and that the object of granting injunction would be defeated by delay. This mandatory requirement and the ingredients are lacking in this order. Therefore, it is clear that the impugned order does not satisfy the requirement of law. In Sri Suryanarayana Paper and Boards Pvt. Ltd., v. Padmakumar, 1995 (II) CTC 323 : 1992 (2) LW 266, Srinivasan, J. (as he then was), following the two Supreme Court judgments in Morgan Stanley Mutual Fund v. Kartic Das, 1994 SCC 225 and Shiv Kumar Chadha v. Municipal Corporation of Delhi, 1993 (3) SCC 1611, held that interlocutory orders of this nature are wholly unsustainable and without jurisdiction and they have to be set aside. The very same learned Judge (as he then was), in R.I & C. Syndicate Ltd. v. Vairava Prakasam, 1988 (2) LW 179, deprecated the practice of granting such order of injunction.?
37. With reference to the applicability of Article 227 of the Constitution of India for invoking the jurisdiction of this Court to file the revision petition as against the impugned order, Mr. AR.L. Sundaresan has also drawn the attention of this Court to paragraph No.7 of the above cited decision.
38. Having thoroughly gone, this Court finds that it was argued before the learned Single Judge on behalf of the revision petitioner saying that a revision under Article 227 of the Constitution of India is maintainable by an aggrieved party, namely, the petitioner. But in this connection, in paragraph 8, the learned Judge has concluded that, ?he is satisfied that the order of the learned City Civil Judge cannot be sustained both on law as well as on merits. But the learned Single Judge has never stated as to whether the revision is maintainable as contemplated under Article 227 Constitution of India. Therefore, this Court finds that this decision cannot be made applicable to the instant case on hand.
39. In the decision, second cited supra, in paragraph No.6, Hon'ble Mr. Justice P. Sathasivam, as he then was, has made reference to Morgan Stanley Mutual Fund vs. Kartick Das (1994 (1) SCC 225) and Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993 (3) SCC 161), cited supra, and therefore, they need not again be reiterated herein.
40. In India Bulls' case, third cited supra, with regard to the granting of ex parte injunction, the learned Single Judge of this Court has observed that injunction after notice to the opposite party is a rule and grant of ex parte injunction is only an exception. Therefore, the Court was expected to consider the factual matrix and in the event the Court coming to a conclusion that giving notice of the Application to the opposite party, would defeat the object of granting the injunction, it would enable the Court to grant an injunction ex parte. However the petitioners should be directed to comply with Order 39, Rule 3(a) of the Code of Civil Procedure forthwith. Therefore, while granting an injunction ex parte, there was no opportunity for the opposite party to submit their defence. The duty is heavily on the Trial Court to examine the plaint as well as the affidavit filed in support of the application for injunction and only after satisfying itself about the merits of the case as pleaded in the plaint and the prima facie case made out in the injunction Application, the Court was expected to grant an order of injunction.
41. In paragraph 20, the learned Judge has referred to the decision of Seema Arshad Zaheer vs. Municipal Corpn. Of Greater Mumbai (2006 (5) SCC
282), wherein the Apex Court has held that, ?the discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendants rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.?
42. In the decision, fourth cited supra, the learned Single Judge of this Court has held that the High Court can exercise supervisory jurisdiction under Article 227 of the Constitution of India in cases where ex parte order of injunction was granted contrary to requirements under Order 39, Rule 3 C.P.C.
43. On the other hand, Mr.M. Vallinayagam, learned Senior Counsel appearing on behalf of Mr. Nallathambi, has argued that the revision petition itself is not maintainable before this Court under Article 227 of the Constitution of India.
44. He has also pointed out that the existence of jurisdiction does not justify the exercising of such jurisdiction.
45. The learned Senior Counsel has also canvassed that the High Court is having wide power to exercise the jurisdiction. But there must be self restriction to exercise the jurisdiction. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution of India should be exercised with due care and circumspection.
46. With reference to the provisions of Order 39 Rule 1, Order 43 Rule 1 and Section 104 C.P.C. and Article 227 of the Constitution of India, Mr.M.Vallinayagam, learned Senior Counsel in order to support his contention has made reference to the decision in A Venkatasubbiah vs. S. Chellappan and others (AIR 2000 SC 3032).
47. In this case, the appellant/plaintiff had filed the suit on 25.6.1999 for a decree of permanent injunction restraining the defendants 1 to 5 from dispossessing him. Along with the institution of the suit, he moved an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure to pass an ad interim injunction restraining the respondents 1 to 5 or their or agents, or their representatives or any person claiming through them or under them from evicting the petitioner from the suit property other than by the process of law and to pass such further or other order or orders. On 29.6.1999 the Assistant Judge of the City Civil Court, Chennai passed the following ex parte order on the said application:
?Heard. Documents perused. Rental receipt Document 11 to Document 47 proves that the petitioner is the statutory tenant and in prima facie possession of the suit property. Though the property was leased out by R.6 on the basis of mortgage document 3, the petitioner is now in continuous possession of the property as tenant. Hence, the balance of convenience is in favour of the petitioner. In the interest of justice, it appears that R1 to R5 are restrained from evicting the petitioner from the suit property, except under due process of law. Notice by 25.8.1999. Ad interim injunction till then. Order 39 Rule 3 to be complied with.?
48. Challenging the above said order, the first respondent on behalf of himself and the respondents 2 to 5 had filed a revision petition invoking the Article 227 of the Constitution of India before this Court (High Court of Madras).
49. The learned Single Judge of this Court (High Court of Madras) while disposing the revision the revision petition made an observation saying that the trial court ought not to have granted an order of injunction at the first stage itself which could operate beyond thirty days as the Court had then no occasion to know of what the affected party has to say about it.
Such a course is impermissible under Order 39,Rule 3-A of the Code, according to the learned Single Judge. Thereafter, the injunction order was set aside for the clear transgression of the provisions of law.
50. When the appeal came before the Division Bench of the Hon'ble Apex Court headed by His Lordship Mr. K. T.Thomas, it was argued that the High Court should not have entertained the petition under Article 227 of the Constitution of India when the respondent had two remedies statutorily available to him. First is that the respondent could have approached the trial Court for vacating, if not for any modification, on the interim ex parte order passed. Second is that an appeal could have been preferred by him against the said order. It is open to respondent to opt either of the two remedies.
51. While penning down the judgment on behalf of the Division Bench, His Lordship K.T. Thomas, has made reference to the provisions of Section 104, Order 43 Rule 1(r), Rule 1, 2, 2-A, 4 or 10 of Order 39 of C.P.C.
52. Having been referred to the above said provisions of law, His Lordship has observed that 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.
53. Hence, any order passed in exercise of the aforesaid powers, in Rule 1 would be appealable 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.
54. With regard to the position of the court which passed the order granting interim ex parte injunction, if the reasons for granting of ex parte injunction is not recorded, in paragraph No.13, it has been observed as under:-
? 13. What would he the position if a Court which passed the order granting interim ex-pate 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.?
55. With regard to the application of Article 227 of the Constitution of India, His Lordship has observed in paragraph No.20 as detailed hereunder:-
? 20. Now what remains in the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex-parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on the aspect as the High Court had chosen to entertain the revision petition.?
56. In this connection, Mr.M. Vallinayagam, learned Senior Counsel has argued that as observed in the decision cited supra, when two options are available to the aggrieved party, without exhausting anyone of the options of his choice, he cannot straight away approach the High Court under Article 227 of the Constitution of India and therefore, the revision petition itself is not maintainable and liable to be dismissed.
57. He has also submitted that since the impugned order has been passed under Order 39 Rules 1 and 2 C.P.C., and the trial Court is having repository power to grant interim injunction with or without notice, the revision petitioners ought to have been advised suitably to approach the trial Court either to file a petition under Order 39 Rule 4 C.P.C. to vacate the order of ad interim injunction or to prefer an appeal under Order 43 Rule 1(r) of C.P.C.
58. It is obvious to note here that the interlocutory application in I.A.No.185 of 2013 under Order 39 Rules 1 and 2 C.P.C. seems to have been filed on 28.4.2014. On the same day, the ex parte ad interim injunction was granted till 16.6.2014.
59. In this connection, it is imperative on the part of this Court to place it on record that the order was passed on 28.4.2014 and the summer vacation intervened in the month of May. Therefore, the learned trial Judge had directed the office to call the petition on 16.6.2014 and till such date the ad interim injunction was granted.
60. Now it may be more relevant to refer the provisions of Rule 3-A of Order 39 of C.P.C. It indicates that 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 30 days from the date on which injunction was granted, where it is unable so to do, it shall record its reasons for such inability.
61. In so far as the provisions of Rule 3-A of Order 39 is concerned, it does not say that the period of injunction order should be restricted by the court to 30 days at the first instance. But it says that the Court should make an endeavour to finally dispose of the application within 30 days from the date on which injunction was granted
62. Mr. M. Vallinayagam, learned Senior Counsel has argued that the right of appeal is a statutory right and that where law provides the right of appeal on limited grounds, it cannot be enlarged by filing a petition under Article 227 of the Constitution of India.
63. In support of his contention, he has placed reliance upon the decision in Sadhana Lodh vs. National Insurance Company Ltd., and another (2003(2) CTC 122).
64. In this case, a three Judges Bench of the Hon'ble Supreme Court headed by the Hon'ble Mr. Justice V.N. Khare, Chief Justice of India, as he then was, has observed that the supervisory jurisdiction conferred on High Court under Article 227 of the Constitution of India is confined only to see whether inferior Court or Tribunal had acted within its parameters and not to correct error apparent on the face of record much less the error of law. In exercising supervisory power, the High Court does not act as Appellate Court or the Tribunal. It is also not permissible for the High Court to review or re-weigh the evidence upon which the inferior Courts or Tribunals passed the order or to correct errors of law in the decision.
65. He has also placed reliance upon the following decisions:-
a. M/s. Vinayak Conclave Private Ltd., and others vs. Life Insurance Corporation and others (AIR 1995 Calcutta 113).
66. In this case, considering the urgency of the matter, an order of ad interim injunction restraining the defendants from changing the nature and character of the suit property and/or from transferring the physical possession of the suit premises or in part thereof to any third party and/or from creating any sort of disturbance, obstacle to the peaceful user thereof and/or from dealing with the suit premises in any manner whatsoever prejudicial and detrimental to the interest of the plaintiff was granted till the disposal of the injunction petition.
67. In this connection, a question was arisen before the learned Single Judge of the Calcutta High Court as to whether the impugned order can be shaken in revision.
68. The learned Single Judge of the Calcutta High Court has made a reference to the decision in Mukta Kes v. Haripada (AIR 1988 Cal 25) , wherein it has been held that if there are material on record to show that there were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court while making the order did not record the reasons for proceeding ex parte. In view of this, it cannot be said that failure of the Court to record the reasons for its opinion as provided under the proviso to Rule 3 of Order 39 of the C.P.C., goes to the root of the jurisdiction.
69. In Binod Kumar Gupta and others vs. Rajendra Prosad shukla (AIR 2003 Calcutta 68).
?A revisional application was directed against the order passed by the Additional District Judge, 1st Court, Howrah in Miscellaneous Appeal No.44 of 1992. By the said order, that Court had affirmed the order, dated 3rd February 1992 passed by the learned District Munsif, 4th Court, Howrah in T.S.NO.26 of 1992 granting an ad interim injunction ex parte directing both the parties to the suit to maintain status quo of the suit property till the disposal of the injunction petition under Order 39 C.P.C.
70. When the learned Single Judge happened to write the above said order has held that as far as the facts are concerned, it is clear that there are sufficient materials before the learned trial Judge to warrant passing of an ex parte interim order. Therefore, while deprecating the practice of not giving reasons in support of interlocutory orders, particularly at the ex parte stage, we confirm the order and dismiss the appeal with order as to costs.
71. While advancing the argument, the decision in Managing Director, Hindusthan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway (AIR 1973 SC 76) was quoted.
72. In this decision, it was held by the Supreme Court that the High Court had no jurisdiction to interfere with the order of the first appellate Court, because the order of the first appellate Court might be right or wrong, might be in accordance with law or not, but one thing was clear that it had jurisdiction.
73. The learned Single Judge has also observed that following the ruling of the Supreme Court a Single Bench of this Court (Calcutta High Court) has an identical situation given the verdict that it cannot be said that failure of the Court to record the reasons for its opinion as provided under the proviso to Rule 3 of Order 39 of the C.P.C. goes to the root of the jurisdiction and the mere fact that the decision is erroneous in fact, or law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction does not become competent for the High Court to correct errors of fact or law however gross or manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.
74. In Surya Dev Rai vs. Ram Chander Rai and others ((2003) 6 SCC
675), with regard to the supervisory jurisdiction under Article 227 of the Constitution of India, in paragraph 22, it has been observed as under:-
"22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by sub-Articles (2) and (3) of Article 227 with which we are not concerned hereat. It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar."
75. In paragraph 23, the Apex Court has observed as under:-
"23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh & Anr. Vs. Amarnath & Anr. (1954) SCR 565. The jurisdiction can be traced back to Section 15 of High Courts Act 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Section 107 of the Government of India Act 1915 and then Section 224 of the Government of India Act 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. In that sense Article 227 of the Constitution has width and vigour unprecedented."
76. With reference to the above, Mr.M.Vallinayagam, has also argued that if the learned District Munsif, Virudhunagar, had committed any jurisdictional error, this Court can interfere by exercising its supervisory powers. But here, as observed in the decisions cited supra, the filing of the revision petition under Article 227 of the Constitution of India on the ground of non giving of reasons for granting ex parte ad interim injunction, cannot be encouraged.
77. In K. Ponnammal and others vs. V. Thayanban and others (2012-2- L.W.193) a petition was filed under Article 227 of the Constitution of India praying to strike off the plaint in O.S.No.8134 of 2011 on the file of the XVI Assistant City Civil Court, Chennai.
78. The first respondent-plaintiff in the above case had filed a suit for permanent injunction restraining the defendants therein from dealing with the suit property in any manner, including bringing the property for sale without paying the consideration to the plaintiff as per the MOU.
79. The court below, viz., XVI Assistant Judge, City Civil Court, Chennai, had granted interim injunction against the respondents and thereafter, notice was also issued in compliance under Order 39 Rule 3 C.P.C.
80. Challenging the order of the court below, a revision was filed erroneously invoking the jurisdiction of the High Court under article 227 of the Constitution of India, instead of availing the remedies provided under the C.P.C. and therefore, Hon'ble Mr. Justice M.Y. Eqbal, Chief Justice, as he then was, has concluded that no relief can be granted in the civil revision. 81.
In the above cited decision, a question arose for the consideration of the Court as to whether in the facts and circumstances of the case, can this court in exercise of its supervisory power under Article 227 of the Constitution of India strike off the plaint.
82. By way of answering this question, M.Y.Eqbal,C.J., (as he then was), has observed that, ?it is well settled that the power conferred by the Constitution on the High Courts in each State under Article 227 of the Constitution is not only confined to judicial superintendence but also administrative superintendence over subordinate Courts and Tribunals. This is because each High Court is the highest Court in the State. The judicial power of superintendence enable the High Courts to ensure that sub-ordinate Courts and Tribunals function within the boundary of law. The judicial as well as administrative superintendence is to be exercised if it is found that there is a serious breach of law which resulting injustice to the parties. Articles 233 to 237 of the Constitution of India confer and vest the power in the High Court to control over all District Courts and other Sub-ordinate Courts and Tribunals.?
83. Therefore, it can safely be concluded that :-
(i) power of judicial superintendence under Article 227 must be exercised sparingly only to keep the courts and tribunals within their bounds of authority and not to correct mere errors;
(ii) the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameter and not to correct an error apparent on the face of the record;
(iii) where the law provides remedy by filing an appeal or revision, then exercise of power under Article 227 may be refused, on the ground of availability of such alternative efficacious remedy by way of appeal or revision to the aggrieved party
84. His Lordship has also observed that, ?in the suit the Court below has granted ad interim injunction against the respondents/petitioners herein and notice has been issued in compliance of the provisions contained under Order 39 Rule 3 of the Code of Civil Procedure. Against the aforesaid order of ad interim injunction two statutory remedies are available to the respondents/petitioners herein viz., firstly they can challenge the said order by filing an appeal as the said order is appealable under Order 43 Rule 1(r) of the C.P.C.
85. Secondly, the respondents/petitioners herein on receipt of notice may appear in the suit and oppose the ad interim injunction granted by the court. If such objection or show cause is filed by the respondents/petitioners herein opposing the grant of ad interim injunction, then the Court below is bound to decide and dispose of such application within 30 days from the date on which the injunction was granted.
86. It is therefore manifested that the respondents/petitioners instead of availing the remedies provided under the C.P.C., have erroneously invoked the jurisdiction of this Court under Article 227 of the Constitution of India. We find that the revision petition cannot be entertained and the relief sought for cannot be granted by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
87. Mr.M. Vallinayagam, has also quoted the following decisions to support his contention. The same legal position as applied in the decision cited supra has been laid down in all the decisions:-
a. Tamil Nadu Mercantile Bank Ltd., vs. Thoothukudi represented by its M.D. & C.E.O. ((2012 ) 8 MLJ 19).
b. P.R. Dhanasundari @ Rajeshwari and others vs. M. Sugumar Reddy and another ( 2011 (2) MWN (Civil) 732).
c. Most Rev. G. Devakadasham, Moderator Church of South India Synod, Chennai-14 vs. Daniel Diwakar and another (2013 (2) MWN (Civil) 189).
88. He has also resisted the arguments advanced by Mr. AR.L Sundaresan, learned Senior Counsel, on the ground that the non disclosure of urgency may not be a ground to maintain the revision under Article 227 of the Constitution of India.
89. It is pertinent to note that the revision petitioners did not file their counter statements before the trial Court to the Interlocutory application in I.A.No.185 of 2014.
90. On the other hand, Mr. AR.L. Sundaresan, learned Senior Counsel, has stuck on to his earlier argument saying that if the injunction is granted, the revision petitioners and others would lose their right and that for convening the meeting by the revision petitioners 21 days clear notice is required, but that notice has not been given.
91. He has also mentioned that the learned District Munsif, Virudhunagar ought to have given notice under Order 39 Rule 3 C.P.C. and since there is flagrant and sheer violation of Order 39 Rule 3 C.P.C., the revision petition under Article 227 of the Constitution of India is very well maintainable and therefore, he has urged this Court to set aside the impugned order.
92. This Court has considered the averments made on behalf of both sides. This Court has also perused the averments of the plaint and the averments of the affidavit filed in support of the interlocutory application in I.A.No.185 of 2014 along with the materials available on record.
93. As observed by the Apex Court as well as by various High Courts including this Court in the decisions cited supra, granting of an order of injunction is within the jurisdiction of the court below and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction an irreparable loss and damage would be caused to the plaintiff during the pendency of the suit.
94. The Court grants such relief, according to the legal principle, EX debito justitiae. As per Black's Law Dictionary, Sixth Edition, Centennial Edition (1891-1991) at page 567 the phraseology, EX debito justitiae, connotes that, ?From or as a debt of justice; in accordance with the requirement of justice; of right; as a matter of right.?
95. As observed in Shiva Kumar Chadha vs. Municipal Corporation of Delhi and others ((1993) 3 SCC 161), 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. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying 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....?
96. It has also been observed that apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
97. On perusal of the impugned order, this Court finds that the learned District Munsif, Virudhunagar has recorded the reasons for his opinion and as such this Court is of considered view that the proviso to Rule 3 of Order 39 of the Code of Civil Procedure has been followed and as argued by Mr. AR.L. Sundaresan, learned Senior Counsel, this court does not see any violation of the provisions of Rule 3 of Order 39 of the Code of Civil Procedure.
98. Even if it is presumed that the revision petitioners are affected by the ad-interim injunction without issuing prior notice, the revision petitioners/respondents can challenge the said order by filing an appeal as the said order is appealable under Order 43 Rule 1(r) C.P.C. or they can also approach the very same court under Rule 4 of Order 39 to vacate the impugned order.
99. Without following these alternative remedies available in the Code of Civil Procedure, this revision invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India is not at all maintainable and liable to be dismissed.
100. Accordingly, the revision petitions are dismissed confirming the order, dated 28.4.2014 and made in I.A.No.185 of 2014 in O.S.No.70 of 2014 on the file of the learned District Munsif, Virudhunagar. The learned District Munsif, Virudhunagar, is hereby directed to dispose of the I.A.No.185 of 2014 in O.S.No.70 of 2014 within a shortest span of two weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected M.Ps. are also dismissed.
To The District Munsif, Virudhunagar.