Madras High Court
Irin Stephan vs J.Musafargani on 27 April, 2009
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2009 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.(PD) No.807 of 2008 and M.P.No.1 of 2008 1. Irin Stephan 2. Pradeep 3. Shaji 4. Prem ... Petitioners (All are residing at Old No.2, New No.3, Kummalamman Koil Street, Kilpauk, Chennai 600 010.) Vs J.Musafargani 23/5, Purasawalkam Road, Chennai 600 007. ... Respondent This Civil Revision Petition is filed under Article 227 of Constitution of India against the Order dated 25.02.2008 made in I.A.No.3252 of 2008 in O.S.No.1244 of 2008 on the file of the IV Assistant Judge, City Civil Court, Chennai. For Petitioners : Mr.T.V.Ramanujam Senior counsel for M/s.T.V.Krishnamachari & V.K.Elango For Respondent : Mr.R.Thiagarajan ***** O R D E R
This Civil Revision Petition is filed against the Order dated 25.02.2008 made in I.A.No.3252 of 2008 in O.S.No.1244 of 2008 on the file of the IV Assistant Judge, City Civil Court, Chennai.
2. The facts are as follows:
The defendants in O.S.No.1244 of 2008 are the petitioners before this court. The respondent/plaintiff filed O.S.No.1244 of 2008 on the file of the IV Assistant Judge, City Civil Court, Chennai, against the revision petitioners herein, praying for a judgment and decree and for a permanent injunction restraining the defendants in the suit from interfering with the plaintiff's peaceful possession and enjoyment of the portions of the property situated at Old No.2/New No.3 Kummallamman Koil Street, Kilpauk, Chennai 10. Along with the suit, the respondent herein, as plaintiff filed I.A.No.3252 of 2008 under Order 39 Rule 1 & 2 of C.P.C. for a temporary injunction. The trial court by order dated 25.02.2008, granted ad-interim injunction till 4.3.2008 and aggrieved by the same, the defendants in the suit filed the above revision petition under Article 227 of the Constitution of India.
3. Heard Mr.T.V.Ramanujam the learned Senior counsel for the revision petitioners and the learned counsel for the respondent. I have also gone through the entire record including the order challenged in this Civil revision petition.
4. The learned Senior counsel for the revision petitioners submits that a cryptic order has been passed by the trial court granting ad-interim injunction without giving reasons and therefore, the mandatory provision of Order 39 Rule 3 has been violated. Therefore, according to the learned Senior counsel for the revision petitioners, the ad-interim injunction granted by the trial court is vitiated and is liable to be set aside.
5. Per contra, the learned counsel for the respondent contends that the Civil revision petition itself is not maintainable as the revision petitioners have an effective alternative remedy of approaching the trial court by filing a vacate stay petition and therefore, this court cannot entertain the revision petition under Article 227 of the Constitution of India. In support of his submission, the learned counsel for the respondent relied on the following decisions:
1. A.I.R 1954 SC 215 (Waryam Singh and another Vs Amarnath and another)
2. 1977(2) SCC 437 (Trimbak Gangadhar Telang and another Vs Ramchandra Ganesh Bhide and others)
3. A.I.R. 2000 SC 3032 (A.Venkatasubbiah Naidu Vs Chellappan and others)
4. 2003(6) SCC 641 (STATE Through Special Cell New Delhi Vs Navjot Sandhu alias Afshan Guru and others)
5. (2006)12 SCC 148 (Anil Kumar Vitthal Shete and others Vs State of Maharashtra and another)
6. (2007)2 SCC 275 (Ajay Bansal Vs Anup Mehta and others)
7. 2007(3) L.W. 515 (Ganapathy Subramanian Vs S.Ramalingam & 23 others)
8. 2007(3) C.T.C. 662 (S.Rangarajan and 2 others Vs M/s.Nathan's Foundation Pvt. Ltd. and 6 others)
6. I have considered the rival submissions carefully with regard to facts and citations.
7. The crux of the argument of the learned Senior counsel for the revision petitioners is that, under Order 39 Rule 1 & 2 C.P.C., if an application is filed for an interim injunction, pending disposal of the suit, the normal practice is to order notice to the other side and if the court decides to grant an ex-parte order of interim injunction, then, the Court shall record the reasons under Rule 3 Order 39 C.P.C. According to the learned Senior counsel, such reasons were not given in the present case and therefore, the Order could be challenged straightway under Article 227 of the Constitution of India.
8. To decide this issue, it is useful to refer to the order passed by the trial court which is under challenge before this court.
"Order Dated:25.2.2008:
Heard. Plaint and documents perused. The petitioner/plaintiff has got a prima facie case. If interim injunction is not granted the petitioner/plaintiff will be put to much hardship and irreparable loss. Ad-interim injunction is granted till 4.3.2008. Notice to respondents/defendants by then, The petitioner/plaintiff is directed to comply with the provisions of Order 39 Rule 3 of C.P.C."
9. A perusal of the above order will make it very clear that the trial court has simply passed a cryptic order by saying that it heard and perused the documents. Therefore, interim injunction has been granted till 4.3.2008. Such cryptic orders without referring the reasons before granting an ex-parte interim injunction is definitely not in consonance with Order 39 Rule 3 C.P.C., according to which, if the court is proposed to grant an injunction without giving notice to the opposite party, it shall record the reasons for its opinion that the object or granting the injunction would be defeated.
10. Order 39 Rule 3 C.P.C. is extracted for better understanding:
"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 or 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."
11. From the above, it is very clear that if the trial court has decided to grant an ex-parte Order of injunction, it shall record the reasons for doing so and Rule 3 of Order 39 C.P.C. is a mandatory provision and that should be strictly complied with by all the courts. Time and again, this Court sends instructions to the subordinate Courts to comply with Rule 3 of Order 39 C.P.C., but, I am coming across a number of ad-interim injunction orders passed by the subordinate Courts, which are certainly in violation of the mandatory provision of C.P.C. and also the circular of instructions issued by this Court to those Subordinate Courts. Hence, I have no hesitation in coming to the conclusion that the order challenged in this Civil revision petition is certainly not in consonance with Order 39 Rule 3 C.P.C. and therefore, the same is to be interfered with by this Court.
12. Now, let met consider the preliminary objection raised by the learned counsel for the respondent by contending that the Civil revision petition filed under Article 227 of the Constitution of India is not maintainable as the revision petitioners have an effective alternative remedy of approaching the trial court itself.
13. In A.I.R. 1954 SC 215 (cited supra), the Hon'ble Supreme Court held that the power of superintendence conferred by Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.
14. In 1977(2) SCC 437 (cited supra), the Hon'ble Supreme Court held that it is only when an order of a tribunal is violative of the fundamental basic principles of justice and fair-play or where a patent or a flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution of India.
15. In A.I.R. 2000 SC 3032 (cited supra), the Hon'ble Supreme Court held that "any order passed in exercise of the powers in Rule 1 of Order 39 C.P.C. would be appealable under Order 43 Rule 1 of the Code." The Hon'ble Supreme Court further held that Rule 3(A) of Order 39 does not say that the period of injunction order should be restricted by the Court to 30 days at the first instance, but, the Court should pass the final order on it within 30 days from the day on which the injunction was granted. In a case where the mandate of the Order 39 Rule 3A 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 the Courts. The Hon'ble Supreme Court further observed that against an interim ex-parte order of injunction, a statutory remedy for keeping it quashed is available and the High Court need not entertain a revision petition against it under Article 227 of the Constitution of India.
16. In 2003(6) SCC 641 (cited supra), the Hon'ble Supreme Court held that "the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India extends to keeping the Subordinate tribunals within the limits of their authority and to seeing that they obey the law. It is settled law that this power of judicial superintendence must be exercised sparingly and only to keep the subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors.
17. In 2006(12) SCC 148 (cited supra), the Hon'ble Supreme Court held that Article 227 and 233 to 237 of Constitution of India, make it explicitly clear that the High Courts take care of and exercise control over the District Courts and Courts subordinate thereto. This power of superintendence and control includes inter-alia to guide, advise and encourage Judges of subordinate courts to exercise their powers, discharge their duties and perform their functions independently, fearlessly and objectively.
18. In 2007(2) SCC 275 (cited supra), the Hon'ble Supreme Court observed that ordinarily petitions under Article 227 are not maintainable when an appeal lies against that order.
19. In 2007(3) L.W. 515 (cited supra), this Court observed that the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, can be refused during exercise when an alternative efficacious remedy by way of filing an appeal is available to the person aggrieved. This Court further observed that the power under Article 227 of the Constitution of India casts a duty upon the High Courts to keep the inferior courts and tribunal within the limits of its authority and that they do not cross the limit ensuring the performance of their duties in accordance with law conferring power within the ambit of the enactment treating such courts and tribunals.
20. In 2007(3) C.T.C. 662 (cited supra), this Court observed as under:
"9. Considering the above submissions of the learned counsels, it is clear that the order of status quo granted by the trial court is not prejudicial to the cause of both sides and by passing the order of status quo, the rights of the parties are not finally determined in the I.A. and the petitioners will be provided every opportunity to advance their arguments in the I.A. by the trial court. Further, under Order 39, Rule 1(a) the defendants are also entitled to file an Application for temporary injunction if the suit property is in danger of being wasted or damaged, alienated by any party to the Suit. It is also to be noted that the petitioners are not prevented in any manner in advancing their arguments in the pending I.A. before the trial Court. The Apex Court in its judgment reported in K.Venkata Subbiah V. Chellappan, 2007 SCC 695: AIR 2000 SC 3032 had categorically stated that invoking the constitutional remedy under Article 227 of Constitution of India should not be entertained when there is an efficacious alternative remedy of Appeal provided under the Statute. In the present case the petitioners, without even contesting the I.A. and without exhausting the Appeal remedy, have invoked the jurisdiction under Article 227 of the Constitution of India."
21. Citing the above judgment, the learned counsel for the respondent submits that this Civil revision petition is not maintainable and the revision petitioners if at all aggrieved by the ex-parte order of injunction passed by the trial court should approach only the trial court for vacating the same. The learned counsel very much relied on A.I.R. 2000 SC 3032 (cited supra), 2007(3) L.W. 515 (cited supra) and 2007(3) C.T.C. 662 (cited supra) in this regard.
22. I am unable to accept the submissions made by the learned counsel for the respondent.
23. A perusal of A.I.R. 2003 SC 3032 (cited supra), will show that in that case, plaintiff filed a suit on 25.6.1999 for a decree of permanent injunction against the defendants. Along with the suit, the plaintiff moved an application under Order 39 Rule 1 and 2 C.P.C. to pass an ad-interim injunction restraining the defendants from evicting the plaintiff from the suit property other than by due process of law. On 29.6.1999, the trial court passed an ex-parte order of interim injunction till 25.8.1999. This was challenged by the defendants in the suit before this Court under Article 227 of the Constitution of India. The learned Single Judge of this Court, who disposed of the revision held that the trial court ought not to have granted an order of injunction at the first stage itself which could operate beyond 30 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 3A C.P.C. Accordingly, a learned Single Judge of this Court set aside the ex-parte order of injunction granted by the trial court. When this was challenged by the plaintiff before the Hon'ble Supreme Court, the Hon'ble Supreme Court in that context only observed that Rule 3A of Order 39 does not say that the period of injunction order should be restricted by the Court to 30 days at the first instance, but, the court should pass the final order on it within 30 days from the day on which the order of injunction was granted. The Hon'ble Supreme Court further, after going through the Order 39 Rule 3A C.P.C., held that in a case where the mandate of Order 39 Rule 3A is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pending of application for grant or vacation of a temporary injunction against the order remaining in force. Only in that context, the Hon'ble Supreme Court held that when the party had two other alternative remedies before the trial court, the High Court need not exercise its jurisdiction under Article 227 of the Constitution of India.
24. Therefore, the judgment is not an authority to submit that when Rule 3 Order 39 is flouted, revision under Article 227 of the Constitution of India is not maintainable.
25. Similarly, in 2007(3) L.W. 515 (cited supra), the defendants in the suit approached the High Court straightway under Article 227 of the Constitution of India by contending that the suit is abuse of process of law and the suit should not have been taken on file. Only in that context, this Court observed that, that was not a fit case for invoking the jurisdiction of this Court under Article 227 of the Constitution of India and the revision petitioner could very much avail the common law remedy available to him first. Therefore, this judgment is also clearly distinguishable on facts. So is the decision reported in 2007(3) C.T.C. 662 (cited supra).
26. What is challenged before this Court by the revision petitioners is that, a cryptic order of ex-parte order of injunction has been passed by the trial Court disregarding Rule 3 of Order 39 C.P.C. and therefore, such an order is illegal and is to be set aside. I have already held that Rule 3 of Order 39 as a mandatory one and therefore, that should be followed in letter and spirit by the trial Court. When the trial Court decides to grant an ex-parte order of injunction under Order 39 Rule 1 and 2 C.P.C., the trial court should mandatorily follow Rule 3 of the Code and if the subordinate Courts do not adhere to this mandatory rule and pass ex-parte orders of injunction by exceeding their limits and jurisdiction, the trial courts need to be restrained by this Court under Article 227 of the Constitution of India, to see that the trial court is complying with the mandatory rules of the procedure code. Therefore, I have no hesitation in holding that the order of the trial court is illegal and accordingly, the same is set aside.
27. Considering the fact that the revision petitioners approached this Court straightway under Article 227 of the Constitution of India without filing a counter in I.A.No.3252 of 2008, the revision petitioners are directed to file their counter within a week from the date of receipt of a copy of this order and the trial court is directed to dispose of I.A.No.3252 of 2008 on merits and in accordance with law within three weeks thereafter after affording opportunities to both the parties.
28. In the result, the Civil Revision petition is allowed as prayed for. No cost.
vaan To The IV Assistant Judge, City Civil Court, Chennai