Madhya Pradesh High Court
Brijesh Garg vs Sunil Jain on 9 July, 2014
1 W.P.3972/14 09/07/2014
Shri H.D.Gupta, Senior Advocate with Shri Santosh Agrawal, Advocate for the petitioners.
Heard.
This petition is directed against the order Annexure P-1 whereby the petitioners' application preferred under Order 39 Rule 3 is rejected by Court below. Learned senior counsel submits that under Order 43 Rule 1 CPC, the appeal can be preferred only against the orders passed under Order 39 Rule 1 & 2. Rule 3 of Order 39 is not covered under Order 43 Rule 1 (r).
I have heard the senior counsel at length. In the opinion of this Court, this point is no more res-integra. This Court in 2013 (2) MPJR SN 28 (Radheshyam Rathi Vs. Rotary Club & Others) has considered this aspect in extenso and opined as under:-
"6. A plain reading of Order 39 Rule 1 shows that it has been compartmentalized into divisions:-
(I) The temporary injunction.
(ii) Interlocutory orders.
7. Rule 1 to 5 fall under ":temporary injunction", whereas rule 6 to 10 fall under interlocutory orders. It is, thus, clear that all orders under Order 1 to 5 of Rule 39 are, in fact order of "temporary injunction".
8. Proviso to Rule 3 under Order 39 was inserted by Act No. 104 of 1976 w.e.f. 1.2.1977. In original Rule 3, the powers were given to the Court to grant ex-part injunction without notice to the other side. However, a proviso aforesaid was added which mandates that while 2 W.P.3972/14 granting such injunction ex-parte, the Court shall record reasons for its opinion that the object of granting injunction would be defeated by the delay and may require the applicant/plaintiff to fulfill the requirement of Clause (a) and (b). Thus, Rule 3 is a method by which the Court may grant ex-parte injunction and direct notices to the opposite party. This power is exercised in the situation where it appears to the Court that the object of granting injunction would be frustrated by the delay, in such cases ex-parte injunction can be passed. The basis power to grant temporary injunction is there in Rule 1 & 2 of Order 39. Rule 3 only deals with a particular situation for exercise of power to grant injunction ex-parte.
9. Under Order 39 Rule 3 a Court only decides whether to grant injunction ex-parte or after giving notice to the other side. If the Court decides to issue notice and passes injunction order after giving notice, the power, in fact, is exercised under Order 39 Rule 1 & 2. In cases where the Court decides to pass injunction order without giving notice, in that eventuality also, the power of granting injunction is traced and flows from order 39 Rule 1 and 2. Order 39 Rule 3 is only a method and option for the Court to issue injunction after giving notice or without giving notice and prescribes the methodology and procedure for granting ex-parte injunction. In the event Court deems it proper to grant ex-parte injunction, it is obliged to assign reasons for its opinion.
10. In AIR 1984 Gauhati 86 (FB) (Akmal Ali and others etc. Vs. State of Assam and others), the Court opined that procedure for granting ex-parte injunction is laid down in Rule 3, whereas Rule 1 & 2 combined together is repository of Court's power of granting injunction.
11. In AIR 2000 S.C. 3032 (A.Venkatasubbiah Naidu 3 W.P.3972/14 Vs. S.Chellappan and others), the Apex Court opined that it cannot be contended that the power to pass ex- parte interim orders of injunction does not emanate from Order 39 Rule 1. The said rule is 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. Thus, it is held b y the Apex Court that any order passed in exercise of aforesaid power in Rule 1 would be appealable under Order 43 Rule 1 CPC. This Court in AIR MP 2008 (Chhaganlal Vs. Niwasdas Goyal) opined that where an order of temporary injunction is issued ex-pare, that order is nonetheless an order under Rule (1) or (2) of Order 39 CPC and would as such be appealable. The same view is taken by this Court in 1978 (1) MPWN SN 447 (Sitaram Vs. Rajabeti). In AIR 2002 Gauhati 146 the Single Judge followed the Full Bench judgment in Akmal Ali (supra). In AIR 2004 AP 310 (innovative Pharma Surgicals Vs. Pigeon Medical Devices Pvt. Ltd. & Ors.) the High Court of A.P. Took the same view. So far 1993 MPLJ 52 (Gajraj Singh and others Vs. Ram Kumar and others) is concerned, in my opinion, the said judgment is of no assistance to the petitioner. In the said case, the application was preferred under Order 39 Rule 3 CPC , but Court did not grant any injunction. Only notices were directed to be issued (para 7). If injunction is not granted, it is clear that the powers under Order 39 Rule 1 and 2 are not exercised. In that event, such order, by no stretch of imagination, can be said to be an order passed under Order 39 Rule 1 and 2. Mere issuance of notice without any injunction will not fall within the powers under Order 39 Rule 1 and 2. On this factual foundation, in Gajraj Singh (supra), the Court opined that mere issuance of notice will not make an order appealable under Order 43 Rule 1 (r). In the present case,admittedly, injunction has been passed 4 W.P.3972/14 which is necessarily an order passed under Order 39 Rule 1 and 2. On the basis of aforesaid analysis, the case of Gajraj Singh (supra) is distinguishable and is of no assistance to the petitioner.
12. In my considered opinion, merely because tow separate applications were filed by the plaintiff under Order 39 Rule (1) and (2) read with Section 151 CPC and under Order 39 Rule 3 CPC respectively will not mean that Order 39 Rule 3 is an independent provision. Rule 3 is part and parcel of Order 39. Rule 3 merely provides a method to grant ex-parte injunction when certain conditions are satisfied. When the conditions are satisfied, the Court may grant injunction ex-parte which is necessarily a power exercised under Order 39 Rule 1 and 2 CPC. Rule 3 cannot be divorced from the nature of power given to the Court u/r 1 & 2 and it has to be read with Rule 1 and 2 CPC. In other words, in my opinion, when Court decides to grant injunction ex-parte by invoking Rule 3 aforesaid, even then it only shows that Court was satisfied that it is a fit case for grant of ex-parte injunction and in that eventuality, it exercises the power under Rule 1 & 2 to grant injunction. Therefore, merely because in Order 43 Rule 1 ®, the Rule 3 of Order 39 is not mentioned, it will not mean that the order impugned would not be appealable. Accordingly, I am unable to hold that this petition under Article 227 of the Constitution is maintainable. Petitioner has s remedy of appeal under Order 43 Rule 1 (r). The order of the Supreme Court in Suresh Bhasin (supra) can be relied upon b y the petitioner before the appropriate appellate forum. In my opinion, this petition is not tenable and therefore, I leave it open for the petitioner to rely on the said order before appropriate appellate forum. Petition is not entertainable for the reasons stated above. It is dismissed without expressing any opinion on the merits of the case.
5 W.P.3972/14Needless to mention that liberty is reserved to petition to avail aforesaid remedy.
Certified copy of the impugned order be returned to the petitioner after obtaining photocopy of the same." In view of the order in Radheyshyam Rathi (supra), this writ petition is not maintainable. It is accordingly dismissed. Registry is directed to return the certified copy of the impugned order on production of photocopy of the same. The petitioner may avail the remedy available to him under the law.
Sujoy Paul Judge vv