Telangana High Court

Gopina Nagulu vs Gopina Narayana on 26 September, 2022

Bench: G.Radha Rani

            THE HON'BLE Dr. JUSTICE G. RADHA RANI

            CIVIL REVISION PETITOIN No.1596 OF 2022

ORDER:

This Civil Revision Petition is filed by the petitioner -

respondent No.2 - defendant No.1 aggrieved by the order dated

14.12.2020 passed in I.A. No.676 of 2020 in O.S No.628 of 2020 by

the Special Assistant Agent & Sub Divisional Magistrate, Mobile

Court, Bhadrachalam, Bhadradri Kothagudem District.

2. Heard learned counsel for the petitioner - respondent No.2 -

defendant No.1 and the learned counsel for the respondent No.1 -

petitioner - plaintiff.

3. The learned counsel for the petitioner - defendant No.1

submitted that the respondent No.1 - plaintiff filed the suit for

perpetual injunction and also filed I.A. No.676 of 2020 for temporary

injunction on 14.12.2020. The Special Assistant Agent and Sub

Divisional Magistrate, Mobile Court, Bhadrachalam on the same day

passed ex parte ad interim injunction order and also directed the

Station House Officer, Aswaraopet Police Station to give necessary

protection to the respondent No. 1 - plaintiff. He further contended Dr.GRR,J

that the court below, without passing speaking orders and without

following the procedure as contemplated under Order XXXIX Rule 3

CPC, granted ex parte injunction order without issuing notice to the

petitioner - defendant No.1. Without there being any application, the

court below granted police protection also. The orders of the court

below were void and illegal. Under the guise of the police protection

granted by the court below, the respondents herein were interfering

with the standing crop raised by the petitioner herein i.e. Palmolive

Oil and trying to take the crop. This Court in a number of cases

suspended the orders keeping in view the judgment of the Hon'ble

Apex Court and remanded the matter for fresh disposal, giving

opportunity to the petitioners and prayed to allow the revision.

4. The learned counsel for the respondent No.1 - plaintiff

submitted that the orders passed in I.A No.676 of 2020 in O.S. No.628

of 2020 dated 14.12.2020 were legal, valid and there was no illegality

or infirmity in the said order warranting interference by this court.

The petitioner herein failed to file any counter before the court below

till date, though the suit and the petition were filed in the year 2020

and prayed to dismiss the petition.

Dr.GRR,J

5. Perused the record and the impugned order. The impugned

order would disclose that no reasons were given for passing the ex

parte ad interim injunction order and no notice was issued to the

respondents as required under Order XXXIX Rule 3 CPC. The

Hon'ble Apex Court in Shiv Kumar Chadha v. Municipal

Corporation 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

1993 (3) SCC 161 Dr.GRR,J

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 who 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.....

Dr.GRR,J

36. 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 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."

6. Considering that the order under revision would not disclose

any reasons for passing such order and the requirement of the

necessary ingredients like consideration of prima facie case, balance Dr.GRR,J

of convenience and irreparable injury and the said order was also

passed without issuing notice to the other side, it is considered fit to

set aside the impugned order.

7. In the result, the Civil Revision Petition is allowed setting

aside the order dated 14.12.2020 passed in I.A. No.676 of 2020 in O.S

No.628 of 2020 by the Special Assistant Agent & Sub Divisional

Magistrate, Mobile Court, Bhadrachalam, Bhadradri Kothagudem

District. The matter is remanded to the court below to consider it

afresh after giving notice to the respondents therein, and the