Madras High Court
M/S. Shanmugam Foundation Pvt. Ltd vs Smt. Sivakalai on 2 August, 2012
Author: V. Dhanapalan
Bench: V. Dhanapalan
In the High Court of Judicature at Madras
Dated :: 02..08..2012
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
C.R.P. ( P.D. ) No: 2073 of 2012
M/s. Shanmugam Foundation Pvt. Ltd.
43/19, Park Avenue
Corporation Colony
Arcot Road
Kodambakkam
Chennai 600 024. .. Petitioner
-vs-
1. Smt. Sivakalai
14/21, Srirangaram Illam
Machampalayam
Sundarapuram
Coimbatore 641 024.
2. Smt. Kokilam
5, Sengappa Konar Layout
Sundarapuram
Coimbatore 641 024.
3. Smt. R. Mangayarkarasi
Flat No: S-1, G.L. Building
4/10 Vathiyar Thottam
Rangarajapuram I Street
Kodambakkam
Chennai 600 024. .. Respondents
.. .. ..
Civil Revision Petition under Article 227 of the Constitution of India against the order and decree passed by the District and Session Judge, Coimbatore, made in I.A No: 365 of 2012 in O.S. No: 160 of 2012 dated 20.04.2012.
For petitioner :: Mr. V.T. Gopalan
Senior Counsel for
M/s. S. Sathiaseelan
For respondents :: Mrs. P.T. Asha for
M/s. Sarvabuavman Associates
.. .. ..
O R D E R
The petitioner has called in question an order of the learned District and Sessions Judge, Coimbatore, made in I.A. No: 365 of 2012 in O.S. No: 160 of 2012 dated 20.04.2012 in this Civil Revision Petition.
2. The Revision petitioner is the 3rd defendant in the suit. The 1st respondent / plaintiff has filed a suit for a permanent injunction and for a direction to the defendant to account for the income from the suit properties. The 1st respondent plaintiff also prayed for an interim injunction under Order 39 Rule 1 and 2 of C.P.C. restraining the defendants from in any manner encumbering or alienating or dealing with the suit schedule property by putting up any construction or otherwise pending disposal of the suit and to grant an order of interim injunction to the same effect pending disposal of the suit.
3. The Trial Court, heard the interim application on 20.04.2012 and passed the following order :
Heard. Perused the documents. Prima facie case made out. Ad Interim injunction granted as against the 3rd respondent with regard to the half share of the suit property. Meanwhile, issue notice to R.1 to R.3 returnable by 11.06.2012 by complying (5 ) 3 (a) (b) C.P.C. Challenging the above order, the revision petitioner is before this Court on the ground that it is a totally non speaking order and is bereft of any reason contrary to the relevant provisions of the C.P.C.
4. Mr. V.T. Gopalan learned Senior Counsel appearing for the revision petitioner would assail the impugned order on the ground that the order is exfacie passed without application of mind. According to the counsel the impugned order cannot stand for a moment for scrutiny for the reason that Proviso to Order 39 Rule 3 C.P.C. states very clearly that the trial Court if proposes to grant an injunction before giving notice to the opposite party shall record its reasons for so doing. In support of his contention, learned Senior Counsel relied on the following decisions, viz.
( i ) 1999 (3) S.C.C. 161 Shiv Kumar Chadha vs. Municipal Corporation of Delhi & others ( ii ) 2002 (2) L.W. 672 - Rt. Rev. Dr. V. Devasahayam, Bishop in Madras CSI and another vs. D. Sahayadoss and two others
5. On the other hand, Ms. P.T. Asha learned counsel appearing for the respondents would contend that the trial Court has perused the records and on being satisfied that a prima facie case is made out that it granted NA order of interim injunction against the 3rd respondent and that cannot be faulted with.
6. Heard the learned counsel for the parties and perused the material documents made available on record.
7. Admittedly the revision petitioner is the 3rd defendant in the suit as well as in the interlocutory application. The 1st respondent / plaintiff filed a suit for partition, for a decree of permanent injunction restraining the defendants from in any manner alienating or encumbering or dealing with the suit properties by putting up construction or otherwise and for a direction to the defendants to account for the income from the suit properties from the date of suit until the plaintiff is put in possession of her lawful share. The plaintiff also filed an interlocutory application in I.A. No: 365 of 2012 under Order 39 Rule 1 & 2 C.P.C. to grant an order of interim injunction restraining the respondents, their men, servants and agents from in any manner alienating or encumbering or dealing with the suit properties by putting up construction or otherwise pending disposal of the suit.
8. The Trial Court heard the counsel for the plaintiff and passed the following order :
Heard. Perused the documents. Prima facie case made out. Ad Interim injunction granted as against the 3rd respondent with regard to the half share of the suit property. Meanwhile, issue notice to R.1 to R.3 returnable by 11.06.2012 by complying (5 ) 3 (a) (b) C.P.C. The above order has been mainly assailed by the learned Senior Counsel appearing for the revision petitioner on the ground that Proviso to Order 39 Rule 3 C.P.C. provides that the Court, if it intends to grant an injunction without giving notice to the opposite party, shall have to record the reasons for doing so and in the case on hand, the order granting interim injunction without giving notice to the opposite party is bereft of reasons and hence, it cannot be sustained in the eye of law. Rule 3 of Order 39 C.P.C. reads as under :
" 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 --
..... ...... ..... "
9. A bare reading of the impugned order would reveal that the Trial Court has just heard the counsel for the plaintiff and perused the documents and without recording reasons for grant of an order of interim injunction and without notice to the other side, granted an order of Ad-interim injunction against the 3rd respondent with regard to the half share of the suit property. When the proviso contemplates that Court on satisfaction of the prima facie case if it proposes to grant an injunction without giving notice of the application to the opposite party shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, in the case on hand, the Court below has not even given one reason for granting such an order of injunction.
10. At this juncture it would be useful to refer to the decisions relied on by the learned Senior Counsel appearing for the revision petitioner. In the decision reported in 1999 (3) S.C.C. 161 Shiv Kumar Chadha vs. Municipal Corporation of Delhi & others, the Supreme Court held that, " 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 which 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 therewith 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 with 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 purposes. 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. Taylor24 and Nazir Ahmed v. Emperor25. 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 Ramchandra Keshav Adke v. Govind Joti Chavare"
11. In the decision reported in 2002 (1) L.W. 672 Rt. Rev. Dr. V. Devasahayam Bishop in Madras CSI and another vs. D. Sahayadoss and two others, this Court held that, " 12. .... ..... ..... As already referred by me, in the case of granting injunction without hearing the opposite party, it is mandatory on the part of the trial Court to record the reasons for its opinion for granting such injunction. When the said condition is violated, I am of the view that in order to do justice between the parties, this Court can interfere by exercising the revisional powers under Article 227 of the Constitution. The impugned order which is bereft of reason and laconic cannot stand a moment's scrutiny as ruled in (1994) 4 S.C.C. 225. If it is held that the compliance with the proviso in Rule 3 is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise. As observed by the Hon'ble Supreme Court, 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 at all. Inasmuch as this condition has been violated by the learned Subordinate Judge, the impugned order is liable to be set aside. "
12. In view of the law laid down by the Supreme Court and this Court, in my considered opinion, the impugned order granted by the Court below, without assigning any reasons, is contrary to the proviso to Order 39 Rule 3 C.P.C. and therefore, it is liable to set aside. Accordingly, the impugned order dated 20.04.2012 made in I.A. No: 365 of 2012 in O.S. No: 160 of 2012 on the file of the District Judge, Coimbatore, is set aside. The Civil Revision Petition is allowed. Connected miscellaneous petition is closed. The matter is remanded back to the Court below for fresh consideration. The Trial Court is directed to take up the interlocutory application afresh for consideration, hear both the parties and decide the same on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. There shall be no orders as to the costs.
gp To The District Judge Coimbatore