Telangana High Court

K. Akhil Reddy vs Smt. Lalitha Srikrish on 7 April, 2021

Bench: M.S.Ramachandra Rao, T.Vinod Kumar

  THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                AND
          THE HON'BLE SRI JUSTICE T.VINOD KUMAR

                CMA.No.s 90 and 173 of 2021

COMMON JUDGMENT:         (Per Hon'ble Sri Justice M.S. Ramachandra Rao)




1. During the Sankranthi vacation of this Court, when the

trial courts are closed, there is a practice to file suits , which

are normally filed in the trial courts, in the High Court, if

urgent interim orders are needed in the suits, with a request

to the High Court to Receive and transmit the same to the

trial courts after considering the applications for interim

relief.


2. On such suit OS(SR) No.... 2021, which ought to have

been filed in the Court of XVI Additional District Judge,

Ranga Reddy District, was presented by the respondents 1 to

6/plaintiffs in the High Court along with an IA.No.5 of 2021

under Order XXXIX Rules 1 and 2 of CPC and Receive and

Transmit Petition which was numbered as Receive and

Transit Petition No.5 of 2021.

3. On 12.1.2021, a learned single Judge of this Court

granted an exparte ad interim injunction in favor of the

respondents/plaintiffs in IA No.1 of 2021 in OS(SR) No....

2021 while directing the receipt of the said suit and it's

transmission to Court of XVI Additional District Judge, Ranga

Reddy District .

MSR,J & TVK,J ::2::

CMAs_90 & 173_2021

4. After the learned Single Judge passed the order on

12.01.2021, the XVI Additional District Judge, Ranga Reddy

District at Malkajgiri had numbered the suit as OS.No.13 of

2021 and IA No. 1of 2021 filed by the respondents 1 to

6/plaintiffs under Order XXXIX Rules 1 and 2 of CPC as

IA.No.59 of 2021.

5. In both these appeals, the said order dt.12.01.2021

passed in IA.No.1 of 2021 in OS(SR) No.... 2021 passed by

the learned Single Judge of this Court in the Vacation Court

is being challenged.

6. Since the order is pronounced by the Vacation Bench of

this Court, treating it as an appeal against the order passed

by the trial court, these appeals are preferred to this Court

invoking Or.43 R.1 CPC to consider the correctness of the

said order dt.12.01.2021.

7. The learned Single Judge when he passed the order on

12.01.2021 in IA.No.1 of 2021 in OS(SR) No.... 2021

observed in the said order that he had perused the plaint and

documents filed in support of the plaint by respondents 1 to

6/plaintiffs, that he had prima facie found that the

respondents 1 to 6 have title and possession over the suit

schedule properties, and that there is every possibility that

respondents 1 to 6/plaintiffs would be put to hardship, if ex

parte injunction is not granted; and then he proceeded to

grant ad-interim injunction up to 27.01.2021 by dispensing MSR,J & TVK,J ::3::

CMAs_90 & 173_2021

with the notice under Order XXXIX Rule 3 CPC subject to

compliance of sub-Rule (b) thereof by the respondents 1 to 6

within 24 hours.

8. Though counsel for the appellants Sri K.Mohan, Sri

R.Sushanth, and counsel for the respondents 1 to 6,

Sri M.Surender Rao, Senior Counsel for Sri

Ch.A.B.Satyanarayana and Sri K.S.Murthy, advanced several

contentions on merits, we are of the opinion that the matters

can be disposed of on a short point, i.e, that in the order

dt.12.01.2021 passed in IA.No.1 of 2021 in Order XXXIX Rule

3 CPC, the learned Single Judge while granting ex-parte ad-

interim injunction, he had not recorded the reasons, which

are required as per the proviso to Rule 3 of Order XXXIX CPC.

9. The learned Single Judge had simply referred to the

contentions in the plaint in one paragraph, and contentions

of Sri M.Surender Rao, Senior Counsel appearing for the

respondents 1 to 6/plaintiffs in the next paragraph, and the

concluded that he had perused the plaint and documents and

he prima facie finds that the plaintiffs have title and

possession.

10. Unfortunately, there is no discussion of the contents of

any documents either in regard to the title set up by the

respondents 1 to 6 or on the aspect of possession of

respondents 1 to 6 on the date of filing of the suit, which are

required to be recorded while granting ex-parte injunction MSR,J & TVK,J ::4::

CMAs_90 & 173_2021

against the appellants to protect the alleged possession of

respondents 1 to 6.

11. The Supreme Court in Shiv Kumar Chadha v. Municipal

Corpn. of Delhi1 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

1993(3) SCC 161 MSR,J & TVK,J ::5::

CMAs_90 & 173_2021

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 MSR,J & TVK,J ::6::

CMAs_90 & 173_2021

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 surplus age 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. Taylor(1875 1 ch D 426) and Nazir Ahmed v. Emperor(AIR 1936 PC 253(2). 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(1975 (1) SCC 559)."

(emphasis supplied)

12. We respectfully follow the said judgment of the Supreme

Court, and only on the ground that the ex-parte ad-interim

injunction granted by the learned Single Judge in IA.No.1 of MSR,J & TVK,J ::7::

CMAs_90 & 173_2021

2021 in OS(SR) No.... 2021 ( now renumbered as IA.No.59 of

2021 in OS.No.13 of 2021 by XVI Additional District Judge,

Ranga Reddy District at Malkajgiri) does not contain such

reasons, we deem it appropriate to set aside the said order

and remand the matter back to the Court of the XVI

Additional District Judge, Ranga Reddy District at Malkajgiri

for fresh consideration.