LAW FOR ALL

Code of Civil Procedure, 1908 : Order 39, Rules 1, 2 and 3-Trial court granting interim ex parte injunction order without recording reasons and requiring applicant to perform duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction order deemed to contain such requirements by implication and the appellant should perform the duties. Order 39, Rule 3A-Section 104, Order 43, Rule 1-Trial court failing to pass final orders within 30 days-Held, the injunction order is deemed to be the final order on the date of expiry of 30 days and the aggrieved party is entitled to right of appeal. Section 104, Order 43, Rule 1-High Court entertaining revision petition when there were alternate remedies-Whether correct-Held, High Court should have directed the parties to avail the alternate remedies and should not have entertained the revision petition-Constitution of India-Article 227. Appellant-plaintiff filed a suit before the trial court for a decree of permanent injunction restraining the respondents from dispossessing him of the suit property. The appellant also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary injunction, which was granted by the trial court. The respondents filed a revision petition under article 227 of the constitution before the High Court alleging that the respondents were in possession and enjoyment of the property. The High Court set aside the injunction order observing that the order could come into operation beyond thirty days under Order 39 Rule 3A of the Code. The High Court directed the trial court to take up the interlocutory application for injunction and pass orders on merits. In appeal to this Court, the plaintiff contended that the respondents had alternate remedies either by approaching the trial court for vacating the injunction order or filing an appeal against the order. The respondents contended that an injunction order without complying with the requisites envisaged in proviso to Rule 3 of Order 39 is void. Citation: 2000 AIR 3032,2000( 3 )Suppl.SCR 303,2000( 7 )SCC 695,2000( 6 )SCALE398 ,2000(10 )JT 599 Disposing of the appeal, the Court HELD: 1. An order passed under Rule 3 of Order 39 of the Code of Civil Procedure, 1908, is deemed to contain the requirements laid down in proviso (a) and (b) of the Rule by implication even if they are not stated expressly. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which has to be performed as required by the proviso, then the party 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. [310-C-D] 2.1. Rule 3A under Order 39 casts a 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 the aforesaid time the Court has to record the reasons thereof in writing. [311-B] 2.2. 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. It is only in very exceptional cases that the Court could 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. [311-D-E] 2.3. 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 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 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. [311-F-H; 312-A-C] 3. With regard to 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. [312-D] 4. As directed by the High Court the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law. Till the orders of the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties. [312-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5102 of 2000.