Kusuma Nagesh vs Kusuma Ramesh
2022 Latest Caselaw 5995 Tel

               THE HON'BLE Dr. JUSTICE G. RADHA RANI

               CIVIL REVISION PETITION No.2118 OF 2022


ORDER:

This Civil Revision Petition is filed by the petitioner-respondent-

defendant aggrieved by the order dated 12.02.2021 in O.S. No.174 of

2021 on the file of the Court of the Special Assistant Agent and Sub

Divisional Magistrate, Mobile Court, Bhadrachalam in granting ex parte

interim injunction until further orders.

2. Heard learned counsel for the petitioner and the learned

counsel for the respondent.

3. Learned counsel for the petitioner submitted that the order

under revision was a non-speaking order. As per Order XXXIX Rule 3

CPC, the court below was bound to give reasons while granting ex parte

injunction orders. The Hon'ble Apex Court in Shiv Kumar Chadha v.

Municipal Corporation of Delhi and others1 held that:

"Whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of

(1993) 3 SCC 161 Dr.GRR,J

granting injunction itself shall be defeated if an exparty order is not passed. But any such exparty order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned."

4. He further contended that the court below without there

being any application for granting police protection, while granting

temporary injunction, marked a copy of the order to the Station House

Officer, Bhadrachalam Police Station. The court below without looking

into the facts of the case and without giving any opportunity to the

petitioner, passed the interim injunction order in a routine manner and

the same was bad in law and prayed to set aside the order dated

12.02.2021 passed in I.A .No.186 of 2021 in O.S. No.174 of 2021 on the

file of the Special Assistant Agent and Sub Divisional Magistrate,

Mobile Court, Bhadrachalam.

5. The learned counsel for the respondent, on the other hand,

relied upon the order of this Court in Parsika China Satyam @

Satyam and others v. Mukthi Gopala Krishna Murthy2 wherein on

similar facts and circumstances, this Court dismissed the CRP leaving it

open to the petitioners therein to move an appropriate application before

CRP No.136 of 2013, dated 01.03.2013 Dr.GRR,J

the Special Assistant Agent & Sub-Divisional Magistrate (Mobile

Court), Bhadrachalam for discharge of the ex parte injunction granted.

6. Perused the record. The impugned order was an ex parte

injunction order granted by the trial court on 12.02.2021. No reasons

were given by the trial court while granting the ex parte interim

injunction. There is no direction given to the respondent-plaintiff to

comply with Order-XXXIX Rule 3 CPC. A copy of the same was also

marked directly to the Station House Officer of Bhadrachalam P.S. The

Hon'ble Apex Court in Shiv Kumar Chadha's case (1 supra) held that:

"As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side. It must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. A reference has been made to the views of the English Courts saying:-

"Exparte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....

An ex parte injunction should generally be until a certain day, usually the next motion day. . . ."

Accordingly we direct that the application for interim injunction should be considered and disposed of in the following manner:-

(i) The Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Dr.GRR,J

Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.

(ii) If the circumstances of a case so warrant and where the Court is of the opinion, that the object of granting the injunction would be defeated by delay, the Court should record reasons for its opinion as required by proviso to Rule 3 of order 39 of the Code, before passing an order for injunction. The Court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of order 39 aforesaid If the Corporation has entered appearance, any such exparte order of injunction should be extended only after hearing the counsel for the Corporation.

(iii) While passing an ex parte order of injunction the Court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of."

7. This Court also in Parsika Chinna Satyam's case (2 supra),

held that:

"2. Perusal of the order under revision reflects that it was an ex parte order passed by the Court below upon hearing the counsel for the petitioner/plaintiff alone. The power of the Court below to pass interlocutory orders is traceable to Rule 42 of the A.P. Agency Rules, 1924, and the said power extends to not only making an interlocutory order, but also discharging the same at any time. It would therefore be appropriate that the defendants in the suit first move the Court below for discharge of the ex parte order instead of approaching this Court by way of a Civil Revision Petition under Article 227 of the Constitution.

3. Before parting with the matter, this Court is constrained to observe that it would not be appropriate for the Court below to provide police protection for implementation of an injunction order Dr.GRR,J

without an application being filed for such relief. Further, necessary grounds have to be made out for directing police aid to ensure compliance with an injunction order. Without such grounds being pleaded and proved, the Court below should normally not order police aid for implementing an injunction order. The Court below would therefore be well advised to keep these aspects in mind."

8. As the order in CRP No.136 of 2013 dated 01.03.2013 is not

inconsistent with the judgment passed by the Hon'ble Apex Court and a

direction was given to the petitioners-defendants to move an appropriate

application before the Special Assistant Agent and Sub Divisional

Magistrate (Mobile Court) Bhadrachalam, it is considered fit to remand

the matter to the trial court to dispose of the matter in accordance with

law. The petitioner-defendant is also directed to file an appropriate

petition before the trial court for discharge of the ex parte injunction

granted in IA No.186 of 2021 in O.S. No.174 of 2021 and the trial court

shall pass orders on merits on hearing both the counsel on record.

9. The Civil Revision Petition is disposed of with the above

directions. No costs.

Pending miscellaneous petitions, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J November 18, 2022 KTL