Inveighing the order dated 24.3.2005 passed in I.A.No.79 of 2005 in O.S.No.56 of 2005 by the Additional Subordinate Judge, Chenglepet, this civil revision petition is focussed.
2. Though the respondent was served and her name also is found printed in the cause list, nonetheless there is no representation for the respondent.
3. The long and short of the relevant facts, which are absolutely necessary and germane for the disposal of the civil revision petition, would run thus:-
The respondent, as plaintiff, filed the suit O.S.No.56 of 2006 before the Additional Subordinate Judge, Chengalpet, seeking the following reliefs:
"(a) to declare that the plaintiff is the absolute owner of the 'B' Schedule mentioned property and to grant consequential relief.
(b) to grant permanent injunction restraining the defendant, his men and agents, servants and any person claiming through them from interfering into the peaceful possession and enjoyment of the 'B' Schedule mentioned property by putting up any construction over the same."
While so, she also filed I.A.No.73 of 2005 seeking the following relief:
"to grant an ad-interim injunction restraining the defendant/respondent their men, agents, servants and persons claiming through them from interfering into the peaceful possession and enjoyment of the 'B' schedule mentioned property by put up any construction thereon."
Whereupon the Court passed the following order:-
"Heard the counsel for petitioner. Affidavit with petition and connected records perused. Issue notice to the respondent. Call on 1.4.2005."
After sensing that the Court had not granted ex-parte ad-interim injunction, the plaintiff has chosen to file one other application I.A.No.79 of 2005 with the following prayer:
"to pass an ad-interim injunction restraining the defendant, his men and agents servants and any person claiming through them from putting up any construction obstructing the path way of the 'B' Schedule mentioned property by obstructing the passage for ingress and egress."
Whereupon the lower Court ignoring the earlier order of notice in the previous I.A.No.73 of 2005, on the very next day of having ordered notice in the previous I.A.No.73 of 2005, simply granted ex-parte ad-interim injunction as under:
"Hence ad-interim injunction is granted till 1.4.2005. Issue notice to respondent. Order 39 Rule 3 to be complied with. Call on 1.4.2005."
Being aggrieved by and dissatisfied with the said order, this civil revision petition is focussed by the defendant on various grounds.
4. The learned counsel for the revision petitioner, placing reliance on the grounds of revision, would develop his argument to the effect the lower Court was not justified in ordering ex-parte at-interim injunction in I.A.No.79 of 2005 after ordering notice in the earlier I.A.No.73 of 2005, which was for injunction relating to the same suit property; there is no reasoned order also; the Honourable Apex Court clearly pointed out that while ordering ex-parte injunction reasons should be found spelt out in the order, as otherwise the order would get vitiated; as such here the order dated 24.3.2005 passed in I.A.No.79 of 2005 should be taken as non est in the eye of law.
5. Perused the records, including the order dated 24.3.2005 passed in I.A.No.79 of 2005, as extracted supra:
6. The suit itself is for declaration and injunction. While so, on perusal of the records, including the affidavit accompanying the I.A.No.73 of 2005, the lower Court was pleased to order notice, without ordering ex-parte ad-interim injunction. However, quite antithetical to the view taken in I.A.No.73 of 2005, just on the next day itself, the lower Court had taken a diametrically opposite view while considering I.A.No.79 of 2005 filed by the very plaintiff and ordered exparte injunction restraining the defendant from raising construction.
7. No doubt, in the I.A.No.73 of 2005, the prayer as extracted supra is for bare injunction, so as to restrain the defendant from interfering with the peaceful possession of the plaintiff over the suit property. However, in I.A.No.79 of 2005, the prayer is for getting injunction so as to restrain the defendant from raising construction in the suit property. The distinction in the prayers between the two, is one that of tweedledum and tweedledee.
8. The first application I.A.No.73 of 2005 covers virtually even the prayer for obtaining injunction so as to restrain the defendant from raising construction and in that application, the lower Court though it fit to issue notice alone. In such a case, I am at a loss to understand as to what actually perplexed and bewildered the lower Court Judge to take a prevarigative stand while considering the I.A.No.79 of 2005 and grant such ex-parte injunction.
9. At this juncture, my mind is redolent and reminiscent of the decision of the Honourable Apex Court, reported in 1996(II) CTC 684 M/S.R.R.TECHNO MECHANICALS (P) LTD AND ANOTHER VS. DEMOCRATIC UNION, certain excerpts from it would run thus:
"6.In the recent decision of this Court reported in Sri Suryanarayana Papers and Boards Pvt. Ltd., and 5 others Vs. Padmakumar and 2 others. 1995 (II) CTC 332, Srinivasan, J., (as he then was), almost in an identical circumstance after referring to the mandatory provisions of Order 39, Rule 3, C.P.C., has observed thus:-
"2.Order 39, Rule 3 of the Code of Civil Procedure contains a specific provision that after it is proposed by the Court 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. The Court is also enjoined to do certain other things, which is not necessary to mention them here. Referring to the said provision of the Code, I held in R.I.C. Syndicate Ltd., Vs. A.Vairaprakasam, AIR 1989 Mad, 139 that if an order of injunction is made without recording the reasons, the injunction would be in violation of the procedure under Order 39, Rule 3 of C.P.C. And I had depreciated the practice of granting such orders of injunction. The said principle is also laid down by the Supreme Court in Morgan Stanley Mutual Fund Vs. Kartick Das, 1994(4) SCC 225. Referring to an earlier judgment in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, 1993 (3) SCC 161, the Supreme Court extracted the following passage from the said judgment:
"....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. The 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 restrain 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 of 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 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 surplusage 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-Oh D 426 and Nazir Ahmed Vs. Experor, AIR 1936 PC 253. 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 Ramachandra Keshay Adke Vs. Govind Joti Chavare, 1975(I) SCC 915. The Court then observed "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, which 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."
7.In the above referred case, the learned Judge has set aside the order of interim injunction granted by the Court below as unsustainable in view of non-compliance of Order 39, Rule 3 of Code of Civil Procedure. Here also, the Court below failed to follow the mandatory provision, namely, Order 39, Rule 3. Here stating that the plaintiff has a prima facie case is not sufficient compliance of Rule 3. If the Court wants to grant interim order without giving notice to the opposite party, the court shall record the reasons for its opinion that the object of granting injunction would be defeated by the delay. If an order of injunction without recording the reasons, the injunction would be in violation of the procedure under Order 39, Rule 3, C.P.C. As a matter of fact, this Court had deprecated the practice of granting such orders in many cases. In view of the points raised by the learned counsel for the petitioner with regard to the jurisdiction of the Civil Court as well as non-compliance of Order 39, Rule 3, C.P.C., the impugned order is liable to be set aside. Accordingly, the Civil Revision Petition Nos.2005 of 1995 is allowed. However, there will be no order as to costs."
10. A bare perusal of the above would leave no doubt in the mind of the Court that while ordering ex-parte ad-interim injunction, the Court is expected to cite reasons. Absence of reasons being found cited in the order would prove fatal to the very order itself.
11. Here as correctly pointed out and highlighted by the learned counsel for the petitioner, the order of the lower Court is bereft of details and there is no indication as on what ground interim injunction was granted. The Honourable Apex Court also spotlighted the fact that mere repeating the ingredients of Order 39 Rule 2 would not tantamount to citing reasons by the lower Court Judge while granting the ex-pare injunction.
12. For all the above reasons, the order dated 24.3.2005 passed in I.A.No.79 of 2005 in O.S.No.56 of 2005 by the Additional Subordinate Judge, Chenglepet, should be taken as one having no legs to stand and accordingly, it deserves to be set aside and accordingly it is set aside.
13. In the result, the C.R.P.is allowed. No costs. Consequently, connected miscellaneous petition is closed.