Telangana High Court

Vijay Motupally, And Another vs Smt.Jyothi Naraindas Ahuja, And ... on 19 April, 2021

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

HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                 AND

       HONOURABLE SRI JUSTICE T.VINOD KUMAR


         CIVIL MISCELLANEOUS APPEAL No.190 of 2021


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


      This Appeal is filed challenging the order dt.27-03-2021 in

I.A.No.296 of 2021 in O.S.No.31 of 2021 passed by the XXVII

Additional Chief Judge, City Civil Court, Secunderabad.


2.    The appellants herein are defendant Nos.44 and 45 in the suit.


3.    The said suit had been filed by respondent Nos.1 and 2 against

respondent Nos.3 to 45 and also the appellants for partition of the

plaint schedule properties and for recovery of half share to

1st respondent.

4. Along with the suit, respondent Nos.1 and 2 filed I.A.No.296 of

2021 invoking Order 39 Rules 1 and 2 C.P.C. for grant of ex parte

ad interim restraining the appellants and other respondents from

changing or altering the nature of plaint-A to I schedule properties

pending disposal of the suit.

5. On 27-03-2021, while issuing ex parte ad interim injunction

and directing the matter to be listed on 12-04-2021, the Court below

merely referred to the contentions of the learned counsel for

respondent Nos.1 and 2, and observed:

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" Perused the plaint averments of the petition and documents such as CC of Registered Sale Deed of Suit schedule -A schedule property dt.20-08-1963, copy of Allotment order dt.1.8.1955, copy of Sanad dt.8.3.1956, copy of Death Certificate of Motilal dt.19.5.1976, copy of Death Certificate of Brijkumar dt.21.10.1982, copy of General Power of Attorney dt.26.5.2016.

The material placed for consideration at this stage, make out a prima facie case to believe that late Motilal was the original owner of the petition schedule properties. As his two sons died, of them one unmarried, the 1st plaintiff being the daughter and respondents 1 and 2 being the wife and son of late Brij Kumar Motilal Bhaktani (one of the sons of late Motilal), are appearing to be legal heirs of late Motilal. In as much as, the intended acts of the respondents are more particularly R8 to R45 in altering/changing the nature of properties appear to be uncalled for, unwarranted and unlawful, if for any reasons this Courts order urgent notice, the respondents would take the advantage of the delay to be caused in service of notices on them and may fructify their evil designs. In such circumstances, it would lead to the multiplicity of litigation and the very purpose of filing of the suit and this petition would be defeated and consequently, the petitioners will be driven to suffer great loss and injustice which cannot be compensated in terms of money. Therefore, urgency involved to consider the request of petitioners dispensing with the prior notice, as such dispensed with and considered. ...."

6. A reading the above passages in the impugned order shows that

the Court below has merely extracted the documents, on which

reliance was placed by respondent Nos.1 and 2, and abruptly came to

the conclusion that there was prima facie case in favour of respondent

Nos.1 and 2 and went on to consider the issue of balance of

convenience and the irreparable injury. It has overlooked the proviso

to Order 39 Rule 3 C.P.C. which mandates that where an ex parte

injunction is being granted, the Court should record reasons for its ::3::

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opinion that the object of granting the injunction would be defeated by

delay.

7. In Shiv Kumar Chadha v. Municipal Corpn. of Delhi1, the

Supreme Court held:

"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

1993(3) SCC 161 ::4::

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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 ::5::

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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)

8. It was therefore not open to the Court below to just record the

contentions of learned counsel for respondent Nos.1 and 2, merely

mention the documents filed on behalf of respondent Nos,1 and 2, and

without giving any reasons, give a finding that there is prima facie

case in favour of respondent Nos.1 and 2 and proceed to grant

ad interim ex parte injunction.

9. Therefore, without going into the merits of the claim of either

parties, we set aside the impugned order dt.27-03-2021 in I.A.No.296

of 2021 in O.S.No.31 of 2021 and remand the said I.A. for

consideration of the Court below with a direction to the Court below

to consider the counter-affidavit filed by the appellants and other

respondents and pass a fresh order in accordance with law within six