Gauhati High Court
Smt. Aparajita Mukherjee And Ors. vs Anil Kumar Mukherjee And Anr. on 14 August, 1989
Equivalent citations: AIR 1990 GAUHATI 73
JUDGMENT Manisana, J.
1. This appeal arises from an order dated 29 October, 1988 of the District Judge, West Tripura, Agartala made in Civil Misc. Case No. 87 of 1988 arising out of T. S. No. 19 of 1987 pending in the Court of the Sub-Judge, West Tripura.
2. The respondent 1 filed T. S. No. 19 of 1987 in the Court of the Sub-Judge, West Tripura, Agartala for partition. The suit is pending in the Court of the Sub-Judge. During the Puja Vacation, the District Judge made an arrangement for holding Courts from 26 October, 1988 to 12 November, 1988. Under that arrangement Mr. M. K. Singh, the Additional Sadar Munsiff Agartala, was in-charge of the Sub-Judge during that period. However, the learned District Judge passed the impugned order of injunction on 29 October, 1989.
3. Mr. B. Das, the learned counsel for the petitioner, has submitted that the ex parte interim injunction was passed by the District Judge without any jurisdiction; and that learned District Judge while passing the orders has not considered the principles underlying under Order 39, Rule 3, C.P.C. I am not expressing my view about the jurisdiction as the appeal can be disposed of on other ground.
4. Order 39, Rule 3, C.P.C. runs:
"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 objection or granting the injunction would be defeated by delay. ....."
5. Injunction by the Courts is not to be a matter of course. Although an ex parte injunction operates for a short period, that is, until the other side appears and contests the matter, if the ex parte injunction is vacated afterwards, by that time irreparable damage might have been caused. There is a great risk of creating injustice while granting or refusing injunction at the interlocutory stage. Therefore, at the stage of granting an injunction, Court should not act casually, i.e., the Court should pass an order only after considering all the facts and circumstances of the case, and while passing the order, the Court is required to record reasons which weighed with the mind of the Court. More so when there is statutory provisions of appeal or revision to higher Court in order to enable the superior Court or the appellate Court to know or to be apprised of the reasons which impelled the Court to pass the order in question. If the reason is reqorded, it enables both the Superior Court and the parties concerned to know the mind of the Court as well as the reasons for its findings and conclusion.
6. A reading of the proviso to Rule 3 suggests that only in the exceptional cases when the Court finds very good reason it would be justified in passing an ad interim ex parte order of a grave nature; and the Courts shall record reasons for its opinion that the object of granting the injunction would be defeated by delay.
7. A perusal of the impugned order indicates that the District Judge has not recorded reasons how he applied his mind while passing the ex parte order of such a grave nature. For this reason, the order of the learned District Judge cannot be sustained.
8. For the foregoing reasons, the appeal is allowed. The impugned order dated 29 October, 1988 passed by the District Judge in Civil Misc. Case No. 87 of 1988 is set aside. The case is sent back to the learned Sub-Judge before whom the case is pending for disposal of the matter fresh after giving the defendant an opportunity of being heard. Office shall send back the records of the subordinate Courts.
9. With the said observation and direction, the appeal is allowed and disposed of.
W. A. Shishak, J.
10. I agree.