Gujarat High Court
Indian Oil Corporation Ltd. vs Gandhi Travels And Tours on 3 December, 1987
Equivalent citations: (1988)1GLR316
JUDGMENT R.C. Mankad, J.
1. Rule. Mr. J.G. Shah, learned Counsel waives service of the Rule on behalf of the respondent. With the consent of the parties, this petition is taken up for hearing today.
2. This petition arises out of a suit being Regular Civil Suit No. 1606 of 1987, filed by the respondent in the Court of the learned Civil Judge, Senior Division at Vadodara praying for a declaration that the petitioner who is defendant in the suit, has no right to extend the contract of M/s. Janta Transport Services beyond December 14,1987; and for a permanent injunction restraining the petitioner from extending the period of the said contract. The respondent made application Exh. 5 in the said suit praying for an injunction to restrain the petitioner from extending the term of the aforesaid contract beyond December 14, 1987 or to engage M/s. Kabir Transport in the same job. The learned Judge who heard the application Exh. 5, granted ex-parte ad interim injunction as prayed for by the respondent till November 27, 1987 and issued notice to the petitioner. The petitioner appeared in response to the notice and resisted the suit and application for injunction. By an application Exh. 9 dated November 27, 1987, the petitioner prayed that the application Exh. 5 be heard as there were serious consequences because of the ex-parte injunction order. It was also urged that the respondent bad deliberately concealed the fact that the suit being Regular Civil Suit No. 1594 of 1987 was filed by it in the Court of the learned Civil Judge, Junior Division and that Court had in that suit refused to grant ad interim injunction which was in similar terms to the injunction prayed for in the present suit filed by the respondent. According to the petitioner, the present suit that is Regular Civil Suit No. 1606 of 1987 was not maintainable in view of the aforesaid Regular Civil Suit No. 1594 of 1987. The learned Judge, however, instead of hearing the application Exh. 5, extended the ex-parte ad interim injunction granted by her upto November 30, 1987. The petitioner apprehending that the ex-parte ad interim injunction would be further extended, approached this Court by way of this petition.
3. Ordinarily, the Court would have been reluctant to interfere with the ex-parte ad interim injunction granted by the lower Court, but having regard to the facts and circumstances stated in the petition, notice pending admission was issued to the respondent and ad interim relief staying further proceedings in Civil Suit No. 1606 of 1987 was granted and record and proceedings in the said suit were called for.
4. On perusal of the record and proceedings, it appears that the learned Judge granted ad interim injunction as prayed for by the respondent in its application Exh. 5, ignoring the provisions of Rule 3 of Order 39 of the Civil Procedure Code. Rule 3 of Order 39 reads as under:
3. 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 for 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.
It is clear from the aforesaid provision that before granting an injunction, the Court should have issued notice to the petitioner, unless it was of the opinion that the object of granting injunction would be defeated by delay. In case the Court was of the opinion that object of granting injunction would be defeated by delay, the Court was required to record reasons for reaching that conclusion. In other words, before granting ex-parte injunction, it was incumbent upon the Court to record reasons and grant ex-parte injunction, only, if in its opinion, the object of granting injunction would be defeated by delay, the learned Judge in the instant case has not recorded any reasons for granting ex-parte injunction without issuing notice to the petitioner. The learned Judge has not come to the conclusion that the object of granting injunction would be defeated if there was delay on account of giving notice to the petitioner. Under the circumstances, the learned Judge should not have granted ex-parte injunction without giving notice to the petitioner. It is also clear from the facts and circumstances of the case that there was no question of object of granting injunction to being defeated on account of delay by giving notice to the petitioner.
5. The plaint was lodged on November 23, 1987 and the application for interim relief Exh. 5 was also filed on the same date. The learned Judge took up-application Exh. 5 for hearing on the same day that is November 23, 1987 and passed an ex-parte order as stated above. What the respondent had sought for in the application was injunction restraining the petitioner from extending the period of the contract beyond December 14, 1987. It would, therefore, appear that there was about three weeks' time before the contract with M/s. Janta Transport Services came to an end. There is no averment in the application that decision regarding extension of the contract was imminent or was to be taken within a few days of the filing of the suit. There are no circumstances, which would justify granting ex-parte injunction without issuing notice to the petitioner. The learned Judge, therefore, ought not to have granted ex-parte, injunction without issuing notice to the petitioner. She not only granted ex-parte injunction, but refused to hear the matter on November 27, 1987, the date on which the ex-parte injunction expired although the petitioner insisted upon early hearing of the application Exh. 5, pointing out that in a similar suit, ex-parte injunction was refused by one of the Courts in Vadodara. In view of the allegations made by the petitioner in the written statement and application Exh. 9, the learned Judge ought not to have extended the ex-parte injunction without hearing the parties. The manner in which the learned Judge has proceeded to grant ex-parte injunction and her refusal to hear the application Exh. 5 inspite of the request made by the petitioner, stating the circumstances in which it was necessary to give early hearing, cannot be approved. The learned Judge, I hope, will be circumspect and careful in future while granting ex-parte injunction.
6. The ex-parte injunction granted by the learned Judge has already expired on November 30, 1987 and no order extending ex-parte injunction has been passed. It is agreed by the learned Counsel for the parties that no interim relief shall be granted in the aforesaid Suit No. 1606 of 1987 without hearing the parties. In other words, if the respondent seeks interim relief either under Exh. 5 or under any application which it may hereafter make for interim relief, no interim relief shall be granted without affording opportunity of being heard to the parties to the suit, including Janta Transport Service.
Under the circumstances Mr. R.P. Bhatt, learned Counsel for the petitioner seeks permission to withdraw this petition. Permission granted. Petition shall stand disposed of as withdrawn. Rule discharged. Ad interim relief vacated. Record and proceedings of the suit shall be returned forthwith to the trial Court. No order as to costs.