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PETITIONER:
A. VENKATASUBBIAH NAIDU
Vs.
RESPONDENT:
S. CHELLAPPAN AND ORS.
DATE OF JUDGMENT: 19/09/2000
BENCH:
K.T. Thomas & R.P. Sethi
JUDGMENT:
THOMAS, J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
When a plaintiff rushed to the civil court for an exparte interim order of injunction against some of the
defendants and obtained it, those defendants rushed to the
High Court to get that order quashed. Both parties
succeeded in their respective endeavour and now both of them
accuse each other for the course adopted by the other. This
appeal is by special leave at the instance of the plaintiff.
The subject matter of the litigation is a property
bearing Door No.177 to 182 on the Big Street at Triplicane
in Madras (now Chennai). At this stage and in this appeal
it is unnecessary to narrate the facts pleaded by the
plaintiff in the plaint nor by the contesting first
defendant in answer thereto regarding the right to the suit
property. Suffice it to say that plaintiff claims to be a
lessee under one S. Alagu (who is arrayed as 6th defendant
in the suit) in respect of the property and on that strength
he claimed to be in possession of the property. He alleged
that the defendants 1 to 5 have been threatening to
dispossess him.
Appellant-plaintiff filed the suit on 25.6.1999 for a
decree of permanent injunction restraining defendant Nos.1
to 5 from dispossessing him. Along with the institution of
the suit he moved an application under Order 39 Rule 1 and 2
of the Code of Civil Procedure (for short the Code) to
pass an ad interim injunction restraining respondents 1 to 5
or their men or agents, or their representatives or any
person claiming through them or under them from evicting the
petitioner from the suit property other than by due process
of law and to pass such further or other order or orders.
On 29.6.1999 the Assistant Judge of the City Civil
Court, Chennai passed the following ex-parte order on the
said application: Heard. Documents perused. Rental
receipt Document 11 to Document 47 proves that the
petitioner is the statutory tenant and prima facie
possession of the suit property. Though the property was
leased out by R.6 on the basis of mortgage document 3, the
petition is now in continuous possession of the property as
tenant. Hence the balance of convenience is in favour ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
the petitioner. In the interest of justice, it appears that
R.1 to R.5 are restrained from evicting the petitioner from
the suit property, except under due process of law. Notice
by 25.8.99. Ad interim injunction till then. Order 39 Rule
3 to be complied with."
The first respondent, on behalf of himself and
respondent Nos.2 to 5, filed a revision petition invoking
Article 227 of the Constitution before the High Court of
Madras alleging that they purchased the property from the
owners thereof as per different sale documents executed on
15.3.1996, and they were in possession and enjoyment of the
property. They further alleged that one Ranganathan, MLA
and one Hithayatullah together expressed a wish to purchase
the property from the respondents, but it was not agreed to
and then those two persons exerted threat and pressure on
them to capitulate to their demand. As they did not yield
to such threats a suit was filed in 1998 by some parties who
are now supporting the present plaintiff. The respondents
further alleged that the said suit was filed at the instance
and instigation of those two named persons. When they
failed to get any relief therefrom another suit was caused
to be filed through one M. Devasinghamani on the strength
of some concocted documents. As no relief was obtained in
that suit also the present suit, which is the third one in
the series, has been filed at the behest of the above named
persons, according to the respondents.
Learned Single Judge of the High Court of Madras who
disposed of the revision made the observation that the trial
court ought not have granted an order of injunction at the
first stage itself which could operate beyond thirty 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 of the Code, according to the learned
single judge. He, therefore, set aside the injunction order
for the clear transgression of the provisions of law and
noted that this is the third suit filed in reference to the
suit property and hence deprecated the grant of ex-parte
injunction without notice. Though learned single judge
further declined to go into the other allegations, he has
chosen to make the following observations also: However,
prima facie, I am satisfied that these materials are
relevant for consideration before granting ad interim
injunction. As per the plaint and affidavit averments admit
that the first respondent is occupying a vacant portion of
1670 sq. ft. and running paper business and charcoal. But
there is no document to show that the first respondent is
actually in possession and running such a business except
the lease deed. Hence the ex-parte order is unsustainable.
For all these reasons, I am of the view that the order
passed by the learned Judge is liable to be set aside and it
is accordingly set aside.
After holding thus learned Single Judge directed the
trial court to take up the interlocutory application for
injunction and pass orders on merits and in accordance with
law expeditiously.
Sri Sivasubramaniam, learned Senior Counsel contended
that the High Court should not have entertained a petition
under Article 227 of the Constitution when the respondent
had two remedies statutorily available to him. First is
that the respondent could have approached the trial court
for vacating, if not for any modification, of the interimhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
ex-parte order passed. Second is that an appeal could have
been preferred by him against the said order. It is open to
respondent to opt either of the two remedies, contended the
Senior Counsel. Section 104 of the Code says that an
appeal shall lie from the following orders, and save as
otherwise expressly provided in the body of this Code or by
any law for the time being in force, from no other orders:
(i) any order made under rules from which an appeal is
expressly allowed by rules.
Order 43 Rule 1 says that: An appeal shall lie from
the following orders under the provisions of Section 104
namely;
(r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or
Rule 10 of Order 39.
Order 39 Rule 1 says thus: 1. Where in any suit it is
proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party to the
suit, or wrongfully sold in execution of a decree or (b)
that the defendant threatens, or intends to remove or
dispose of his property with a view to defrauding his
creditors, (c) that the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, the Court
may by order grant a temporary injunction to restrain such
act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal
or disposition of the property or disposition of the
plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further
orders.
It cannot be contended that the power to pass interim ex
parte orders of injunction does not emanate from the said
Rule. In fact, the said rule is the repository of the power
to grant orders of temporary injunction with or without
notice, interim or temporary, or till further orders or till
the disposal of the suit. Hence, any order passed in
exercise of the aforesaid powers in Rule 1 would be
applicable as indicated in Order 43 Rule 1 of the Code. The
choice is for the party affected by the order either to move
the appellate court or to approach the same court which
passed the ex parte order for any relief.
Learned Senior Counsel for the respondents then
contended that an order granting injunction without
complying with the requisites envisaged in Rule 3 of Order
39 be void. Rule 3 reads thus: The Court shall in 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 applicanthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
(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.
What would be the position if a court which passed the
order granting interim ex parte injunction did not record
reasons thereof or did not require the applicant to perform
the duties enumerated in clauses (a) & (b) of Rule 3 of
Order 39. In our view such an Order can be deemed to
contain such requirements at least by implication even if
they are not stated in so many words. But if a party, in
whose favour an order was passed ex parte, fails to comply
with the duties which he has to perform as required by the
proviso quoted above, he must take the risk. Non-compliance
with such requisites on his part cannot be allowed to go
without any consequence and to enable him to have only the
advantage of it. The consequence of the party (who secured
the order) for not complying with the duties he is required
to perform is that he cannot be allowed to take advantage of
such order if the order is not obeyed by the other party. A
disobedient beneficiary of an order cannot be heard to
complain against any disobedience alleged against another
party.
Learned Single Judge stated that the trial court ought
not to have granted ex parte injunction beyond thirty days
to be in force. The said observation is based on the
language contained in Order 39 Rule 3-A of the Code which
reads thus: Where an injunction has been granted without
giving notice to the opposite-party, the Court shall make an
endeavour to finally dispose of the application within
thirty days from the date on which the injunction was
granted; and where it is unable so to do, it shall record
its reasons for such inability.
The Rule does not say that the period of the injunction
order should be restricted by the Court to thirty days at
the first instance, but the Court should pass final order on
it within thirty days from the day on which the injunction
was granted. Hence, the order does not ipso facto become
illegal merely because it was not restricted to a period of
thirty days or less.
Nonetheless, we have to consider the consequence, if
any, on account of the Court failing to pass the final
orders within thirty days as enjoined by Rule3-A.
The aforesaid Rule casts a three-pronged protection to
the party against whom the ex parte injunction order was
passed. First is the legal obligation that the Court shall
make an endeavour to finally dispose of the application of
injunction within the period of thirty days. Second is, the
legal obligation that if for any valid reasons the Court
could not finally dispose of the application within thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
aforesaid time the Court has to record the reasons thereof
in writing.
What would happen if a Court does not do either of the
courses? We have to bear in mind that in such a case the
Court would have by-passed the three protective humps which
the legislature has provided for the safety of the person
against whom the order was passed without affording him an
opportunity to have a say in the matter. First is that
the Court is obliged to give him notice before passing the
order. It is only by way of a very exceptional contingency
that the Court is empowered to by-pass the said protective
measure. Second is the statutory obligation cast on the
Court to pass final orders on the application within the
period of thirty days. Here also it is only in very
exceptional cases that the Court can by-pass such a rule in
which cases the legislature mandates on the court to have
adequate reasons for such bypassing and to record those
reasons in writing. If that hump is also bypassed by the
Court it is difficult to hold that the party affected by the
order should necessarily be the sole sufferer.
It is the acknowledged position of law that no party can
be forced to suffer for the inaction of the court or its
omissions to act according to the procedure established by
law. Under the normal circumstances the aggrieved party can
prefer an appeal only against an order passed under Rules
1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43
Rule 1 of the Code. He cannot approach the appellate or
revisional court during the pendency of the application for
grant or vacation of temporary injunction.
In such circumstances the party who does not get justice
due to the inaction of the court in following the mandate of
law must have a remedy. So we are of the view that in a
case where the mandate of Order 39 Rule 3A of the Code 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 force. In such appeal, if preferred, the
appellate court shall be obliged to entertain the appeal and
further to take note of the omission of the subordinate
court in complying with the provisions of Rule 3A. In
appropriate cases the appellate court, apart from granting
or vacating or modifying the order of such injunction, may
suggest suitable action against the erring judicial officer,
including recommendation to take steps for making adverse
entry in his ACRs. Failure to decide the application or
vacate the ex-parte temporary injunction shall, for the
purposes of the appeal, be deemed to be the final order
passed on the application for temporary injunction, on the
date of expiry of thirty days mentioned in the Rule.
Now what remains is the question whether the High Court
should have entertained the petition under Article 227 of
the Constitution when the party had two other alternative
remedies. Though no hurdle can be put against the exercise
of the constitutional powers of the High Court it is a well
recognized principle which gained judicial recognition that
the High Court should direct the party to avail himself of
such remedies one or the other before he resorts to a
constitutional remedy. Learned single judge need not have
entertained the revision petition at all and the party
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directed to resort to one of the other remedies. Be that as
it may, now it is idle to embark on that aspect as the High
Court had chosen to entertain the revision petition.
In the light of the direction issued by the High Court
that the trial court should pass final orders on the
interlocutory application filed by the plaintiff on merits
and in accordance with law, we may further add that till
such orders are passed by the trial court, status-quo as it
prevailed immediately preceding the institution of the suit
would be maintained by the parties.
This appeal is disposed of with the above observations
and directions.
