Summary
The Supreme Court declined to interfere with a High Court order under Article 227 setting aside an ex parte status quo injunction, holding that the proviso to Order XXXIX Rule 3 CPC is mandatory both as to the court recording reasons and as to the applicant serving the papers, and that non-compliance by the applicant warrants vacating the ex parte order without going into merits; the trial court was left to decide the injunction application afresh after hearing both sides.
Issues
- Whether the requirements of the proviso to Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, on the court recording reasons for granting an injunction without notice and on the applicant delivering copies of the application and documents to the opposite party, are mandatory.
- What course a court should adopt when the applicant who obtained an ex parte injunction fails to comply with clauses (a) and (b) of the proviso.
- Whether the High Court's order setting aside the ex parte injunction called for interference when the trial court was about to hear the injunction application bipartite.
Provisions considered
- Order XXXIX Rule 3 and its proviso, Code of Civil Procedure, 1908The Court read the rule as requiring notice to the opposite party before an injunction in all cases, with the proviso carving out an exception where delay would defeat the object; the exception carries an obligation on the court to record reasons and on the applicant to deliver copies of the application, affidavit, plaint and documents and to file an affidavit of compliance, both of which are mandatory. (¶¶ 4, 5, 6, 7)
- Article 227, Constitution of IndiaThe High Court had exercised its supervisory jurisdiction to set aside the trial court's ex parte injunction for want of reasons; the Supreme Court did not disturb that order because the trial court was in any event to hear both parties on the injunction application the next day. (¶¶ 2, 8)
Held
- Under the scheme of Order XXXIX CPC an injunction is ordinarily not to be granted ex parte; the opposite party must be noticed and heard. Rule 3 permits an injunction without notice only where delay would defeat its object, and that privilege is coupled with the court's duty to record reasons and the applicant's duty to comply with clauses (a) and (b) of the proviso; both requirements are mandatory. (¶¶ 5, 6)
- The observations in Shiv Kumar Chadha v. MCD on the imperative nature of the court's duty to record reasons apply equally to the applicant's obligations under the proviso. (¶ 6)
- If the court is satisfied that the applicant has not complied with the proviso, it should simply vacate the ex parte injunction without expressing any opinion on the merits, leaving the parties to a bipartite hearing on the injunction application; the applicant, by his conduct, forfeits the benefit of the ex parte order. (¶ 7)
- Since the trial court was to hear both parties on the injunction application the following day, no interference with the High Court's order was called for; the trial court must decide the application on its own merits without being influenced by the High Court's observations. (¶ 8)
Result
Special leave petition disposed of without interfering with the High Court's order; trial court to hear both sides and decide the injunction application on its merits uninfluenced by the High Court's observations; pending applications disposed of.