Telangana High Court

Sri K. Sathya Reddy vs Smt. D. Usha Rani on 7 June, 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


             C.M.A.Nos. 230, 231, 232 and 233 of 2021


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


      C.M.A.Nos.230 of 2021 and 233 of 2021 are filed challenging

the order dt.20-04-2021 in I.A.No.427 of 2021 in O.S.No.198 of 2021

on the file of the III Additional District Judge, Ranga Reddy District

at L.B. Nagar.


2.    C.M.A.Nos.231 of 2021 and 232 of 2021 are filed challenging

the order dt.20-04-2021 in I.A.No.426 of 2021 in O.S.No.198 of 2021

on the file of the same Court.


3.    The suit O.S.No.198 of 2021 is a suit for partition of the suit

schedule property and for allotment of 3/8th share to respondent Nos.1

to 3 in all the appeals/plaintiffs and for declaring certain documents as

null and void.

4. Respondent Nos.1 to 3 had filed I.A.No.426 of 2021 under

Order XXXIX Rule 1 and 2 C.P.C. to restrain the appellants and other

defendants from changing the nature of the suit schedule property, and

I.A.No.427 of 2021 also under Order XXXIX Rules 1 and 2 CPC to

restrain the appellants and others from alienating or creating any

charge over the suit schedule property.

                                                                            MSR,J & TVK,J
                                         ::2::                            CMAs_230_2021
                                                                                And batch

5. Cryptic orders have been passed by the Court below on

20-04-2021 in both the applications ex parte directing both the

appellants and respondents to maintain status quo till 29-04-2021

without assigning any reasons why such ex parte orders were passed.

Though the said orders are styled as status quo orders, they are

actually in the nature of an ex parte ad interim orders. As per proviso

to Order XXXIX Rule 3 C.P.C., it is mandatory to record reasons for

granting such ad interim ex parte injunction orders.

6. 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

1993(3) SCC 161 MSR,J & TVK,J ::3:: CMAs_230_2021 And batch

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 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 MSR,J & TVK,J ::4:: CMAs_230_2021 And batch

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)

7. This Court is coming across orders of this nature repeatedly

passed by even senior judicial officers like the officer who passed

impugned order in these three appeals, while dealing with high stake

real estate litigation ignoring the above settled legal position. We

strongly deprecate this sort of orders which are being passed.

8. Therefore, these Appeals are allowed; the docket orders

dt.20-04-2021 in I.A.No.426 of 2021 and I.A.No.427 of 2021 in

O.S.No.198 of 2021 passed by the III Additional District Judge, MSR,J & TVK,J ::5:: CMAs_230_2021 And batch

Ranga Reddy District at L.B. Nagar and subsequently extended on

29-04-2021 are set aside; the matters are remitted to the said Court for

fresh consideration; the appellants and other defendants in these