Telangana High Court

Lankala Chityala Damodar Reddy vs L. Gopal Reddy And 10 Others on 15 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.No.196 of 2021

JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
          Heard learned counsel for appellant and Sri K.Janardhan

Reddy, learned counsel for respondent Nos.1 to 6. 7th respondent is

said to be served and proof of service filed. Respondent Nos.8 to 11

are given up by the learned counsel for appellant.

2. In this Appeal, a cryptic order dt.25-03-2021 passed in

I.A.No.227 of 2021 in O.S.No.160 of 2021 by the XIV Additional

District Judge, Ranga Reddy District at L.B. Nagar, is challenged.

3. A reading of the order passed by the learned Judge in exercise

of power under Order 39 Rules 1 and 2 C.P.C. shows that the Court

below simply referred to the contentions of the respondent Nos.1 to

6/plaintiffs, and straight away recorded its satisfaction of the

conditions precedent for grant of interim injunction without

complying with the mandatory requirement of supplying reasons as

prescribed in proviso to Order 39 Rule 3 C.P.C. There is no reference

to the contents of the documentary evidence by it to prima facie

accept the plea of the respondent Nos.1 to 6/plaintiffs.

4. 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

1993(3) SCC 161 MSR,J & TVK,J ::2:: CMA_196_2021

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 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 MSR,J & TVK,J ::3:: CMA_196_2021

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 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)."