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1 - 3 of 3 (0.22 seconds)S.B.L. Ltd. vs Himalaya Drug Co. on 15 July, 1997
6. Learned counsel for the revision petitioner contended that while passing the ex parte order dated 23-1-1989 the Court had not directed the applicant to do the things mentioned in Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code and, therefore, the failure of the applicant-appellant to do those things cannot be a ground for vacating the ex parte order. It is true that in the order dated 23-1-1989 the Court had not recorded the reasons for its opinion that the object of granting the interim order would be defeated by the delay and the Court had also not issued a specific direction requiring the applicant to comply with the provisions of Order 39 Rule 3 of the Code. As pointed out by the Division Bench of this Court in the case of S.B.L. Ltd. (supra), ordinarily an order of injunction may not be granted ex parte. The notice should be issued to the opposite party and he must be heard before an injunction is granted. Rule 3 of Order 39 of the Code carves out an exception in favour of granting an injunction without notice to the opposite party where it appears that the object of granting injunction would be defeated by the delay. The said privilege conferred on a party to seek an ex parte injunction is accompanied by an obligation on the said party to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. Those requirements are mandatory. The applicant gets an injunction without notice to the opposite party but subject to the condition of complying with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. Hence whether or not the Court issued a specific direction to the applicant to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of the Order 39, the applicant is bound to comply with those requirements. If the applicant is exempted or absolved from complying with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of the Order 39 on the ground that the Court, while granting an ex parte injunction, omitted to require to the applicant to comply with those requirements, it will go against the scheme of Order 39 of the Code and will
defeat the object of the statutory provisions. Hence, I reject the contention of the learned counsel for the revision petitioner that in the absence of a specific direction by the Court to comply with the requirements of Clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code the applicant was not bound to comply with those requirements and the ex parte injunction order cannot be vacated for non-compliance with the said requirements.
Section 115 in The Code of Civil Procedure, 1908 [Entire Act]
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