A. Venkatasubbiah
Naidu Vs. S. Chellappan & Ors [2000] INSC 484 (19 September 2000)
K.T.
Thomas & R.P. Sethi THOMAS, J.
Leave
granted.
L.I.T.J
When a plaintiff rushed to the civil court for an ex- parte interim order of
injunction against some of the defendants and obtained it, those defendants
rushed to the High Court to get that order quashed. Both parties succeeded in
their respective endeavour and now both of them accuse each other for the
course adopted by the other. This appeal is by special leave at the instance of
the plaintiff.
The
subject matter of the litigation is a property bearing Door No.177 to 182 on
the Big Street at Triplicane in Madras (now Chennai). At this stage and in
this appeal it is unnecessary to narrate the facts pleaded by the plaintiff in
the plaint nor by the contesting first defendant in answer thereto regarding
the right to the suit property. Suffice it to say that plaintiff claims to be a
lessee under one S. Alagu (who is arrayed as 6th defendant in the suit) in
respect of the property and on that strength he claimed to be in possession of
the property. He alleged that the defendants 1 to 5 have been threatening to
dispossess him.
Appellant-plaintiff
filed the suit on 25.6.1999 for a decree of permanent injunction restraining
defendant Nos.1 to 5 from dispossessing him. Along with the institution of the
suit he moved an application under Order 39 Rule 1 and 2 of the Code of Civil
Procedure (for short the Code) to pass an ad interim injunction restraining
respondents 1 to 5 or their men or agents, or their representatives or any
person claiming through them or under them from evicting the petitioner from
the suit property other than by due process of law and to pass such further or
other order or orders.
On
29.6.1999 the Assistant Judge of the City Civil Court, Chennai passed the following ex-parte order on the said
application: Heard. Documents perused. Rental receipt Document 11 to Document
47 proves that the petitioner is the statutory tenant and prima facie
possession of the suit property. Though the property was leased out by R.6 on
the basis of mortgage document 3, the petition is now in continuous possession
of the property as tenant. Hence the balance of convenience is in favour of the
petitioner. In the interest of justice, it appears that R.1 to R.5 are
restrained from evicting the petitioner from the suit property, except under
due process of law. Notice by 25.8.99. Ad interim injunction till then. Order
39 Rule 3 to be complied with." The first respondent, on behalf of himself
and respondent Nos.2 to 5, filed a revision petition invoking Article 227 of
the Constitution before the High Court of Madras alleging that they purchased
the property from the owners thereof as per different sale documents executed
on 15.3.1996, and they were in possession and enjoyment of the property. They
further alleged that one Ranganathan, MLA and one Hithayatullah together
expressed a wish to purchase the property from the respondents, but it was not
agreed to and then those two persons exerted threat and pressure on them to
capitulate to their demand. As they did not yield to such threats a suit was
filed in 1998 by some parties who are now supporting the present plaintiff. The
respondents further alleged that the said suit was filed at the instance and
instigation of those two named persons. When they failed to get any relief therefrom
another suit was caused to be filed through one M. Devasinghamani on the
strength of some concocted documents. As no relief was obtained in that suit
also the present suit, which is the third one in the series, has been filed at
the behest of the above named persons, according to the respondents.
Learned
Single Judge of the High Court of Madras who disposed of the revision made the
observation that the trial court ought not have granted an order of injunction
at the first stage itself which could operate beyond thirty days as the court
had then no occasion to know of what the affected party has to say about it.
Such a course is impermissible under Order 39 Rule 3A of the Code, according to
the learned single judge. He, therefore, set aside the injunction order for the
clear transgression of the provisions of law and noted that this is the third
suit filed in reference to the suit property and hence deprecated the grant of
ex-parte injunction without notice. Though learned single judge further
declined to go into the other allegations, he has chosen to make the following
observations also: However, prima facie, I am satisfied that these materials
are relevant for consideration before granting ad interim injunction. As per
the plaint and affidavit averments admit that the first respondent is occupying
a vacant portion of 1670 sq. ft. and running paper business and charcoal. But
there is no document to show that the first respondent is actually in
possession and running such a business except the lease deed. Hence the ex-parte
order is unsustainable.
For
all these reasons, I am of the view that the order passed by the learned Judge
is liable to be set aside and it is accordingly set aside.
After
holding thus learned Single Judge directed the trial court to take up the
interlocutory application for injunction and pass orders on merits and in
accordance with law expeditiously.
Sri Sivasubramaniam,
learned Senior Counsel contended that the High Court should not have
entertained a petition under Article 227 of the Constitution when the
respondent had two remedies statutorily available to him. First is that the
respondent could have approached the trial court for vacating, if not for any
modification, of the interim ex-parte order passed. Second is that an appeal
could have been preferred by him against the said order. It is open to
respondent to opt either of the two remedies, contended the Senior Counsel.
Section 104 of the Code says that an appeal shall lie from the following
orders, and save as otherwise expressly provided in the body of this Code or by
any law for the time being in force, from no other orders:
(i) any
order made under rules from which an appeal is expressly allowed by rules.
Order
43 Rule 1 says that: An appeal shall lie from the following orders under the
provisions of Section 104 namely;
(r) An
order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.
Order
39 Rule 1 says thus: 1. Where in any suit it is proved by affidavit or
otherwise - (a) that any property in dispute in a suit is in danger of being
wasted, damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree or (b) that the defendant threatens, or intends to remove
or dispose of his property with a view to defrauding his creditors, (c) that
the defendant threatens to dispossess the plaintiff or otherwise cause injury
to the plaintiff in relation to any property in dispute in the suit, the Court
may by order grant a temporary injunction to restrain such act, or make such
other order for the purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property or disposition of the
plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit as the Court thinks fit, until the disposal of
the suit or until further orders.
It
cannot be contended that the power to pass interim ex parte orders of
injunction does not emanate from the said Rule. In fact, the said rule is the
repository of the power to grant orders of temporary injunction with or without
notice, interim or temporary, or till further orders or till the disposal of
the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1
would be applicable as indicated in Order 43 Rule 1 of the Code. The choice is
for the party affected by the order either to move the appellate court or to
approach the same court which passed the ex parte order for any relief.
Learned
Senior Counsel for the respondents then contended that an order granting
injunction without complying with the requisites envisaged in Rule 3 of Order
39 be void. Rule 3 reads thus: The Court shall in 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:
[Provided
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,
and require the applicant (a) to deliver to the opposite-party, or to send to
him by registered post, immediately after the order granting the injunction has
been made, a copy of the application for injunction together with- (i) a copy
of the affidavit filed in support of the application; (ii) a copy of the
plaint; and (iii) copies of documents on which the applicant relies, and (b) to
file, on the day on which such injunction is granted or on the day immediately
following that day, an affidavit stating that the copies aforesaid have been so
delivered or sent.
What
would be the position if a court which passed the order granting interim ex parte
injunction did not record reasons thereof or did not require the applicant to
perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39.
In our view such an Order can be deemed to contain such requirements at least
by implication even if they are not stated in so many words. But if a party, in
whose favour an order was passed ex parte, fails to comply with the duties
which he has to perform as required by the proviso quoted above, he must take
the risk. Non-compliance with such requisites on his part cannot be allowed to
go without any consequence and to enable him to have only the advantage of it.
The consequence of the party (who secured the order) for not complying with the
duties he is required to perform is that he cannot be allowed to take advantage
of such order if the order is not obeyed by the other party. A disobedient
beneficiary of an order cannot be heard to complain against any disobedience
alleged against another party.
Learned
Single Judge stated that the trial court ought not to have granted ex parte
injunction beyond thirty days to be in force. The said observation is based on
the language contained in Order 39 Rule 3-A of the Code which reads thus: Where
an injunction has been granted without giving notice to the opposite-party, the
Court shall make an endeavour to finally dispose of the application within
thirty days from the date on which the injunction was granted; and where it is
unable so to do, it shall record its reasons for such inability.
The
Rule does not say that the period of the injunction order should be restricted
by the Court to thirty days at the first instance, but the Court should pass
final order on it within thirty days from the day on which the injunction was
granted. Hence, the order does not ipso facto become illegal merely because it
was not restricted to a period of thirty days or less.
Nonetheless,
we have to consider the consequence, if any, on account of the Court failing to
pass the final orders within thirty days as enjoined by Rule3-A.
The
aforesaid Rule casts a three-pronged protection to the party against whom the
ex parte injunction order was passed. First is the legal obligation that the
Court shall make an endeavour to finally dispose of the application of
injunction within the period of thirty days. Second is, the legal obligation
that if for any valid reasons the Court could not finally dispose of the
application within the aforesaid time the Court has to record the reasons
thereof in writing.
What
would happen if a Court does not do either of the courses? We have to bear in
mind that in such a case the Court would have by-passed the three protective
humps which the legislature has provided for the safety of the person against
whom the order was passed without affording him an opportunity to have a say in
the matter. First is that the Court is obliged to give him notice before
passing the order. It is only by way of a very exceptional contingency that the
Court is empowered to by-pass the said protective measure. Second is the
statutory obligation cast on the Court to pass final orders on the application
within the period of thirty days. Here also it is only in very exceptional
cases that the Court can by-pass such a rule in which cases the legislature
mandates on the court to have adequate reasons for such bypassing and to record
those reasons in writing. If that hump is also bypassed by the Court it is
difficult to hold that the party affected by the order should necessarily be
the sole sufferer.
It is
the acknowledged position of law that no party can be forced to suffer for the
inaction of the court or its omissions to act according to the procedure
established by law. Under the normal circumstances the aggrieved party can
prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of
Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot
approach the appellate or revisional court during the pendency of the application
for grant or vacation of temporary injunction.
In
such circumstances the party who does not get justice due to the inaction of
the court in following the mandate of law must have a remedy. So we are of the
view that in a case where the mandate of Order 39 Rule 3A of the Code is
flouted, the aggrieved party, shall be entitled to the right of appeal
notwithstanding the pendency of the application for grant or vacation of a
temporary injunction, against the order remaining in force. In such appeal, if
preferred, the appellate court shall be obliged to entertain the appeal and
further to take note of the omission of the subordinate court in complying with
the provisions of Rule 3A. In appropriate cases the appellate court, apart from
granting or vacating or modifying the order of such injunction, may suggest
suitable action against the erring judicial officer, including recommendation
to take steps for making adverse entry in his ACRs. Failure to decide the
application or vacate the ex-parte temporary injunction shall, for the purposes
of the appeal, be deemed to be the final order passed on the application for
temporary injunction, on the date of expiry of thirty days mentioned in the
Rule.
Now
what remains is the question whether the High Court should have entertained the
petition under Article 227 of the Constitution when the party had two other
alternative remedies. Though no hurdle can be put against the exercise of the
constitutional powers of the High Court it is a well recognized principle which
gained judicial recognition that the High Court should direct the party to
avail himself of such remedies one or the other before he resorts to a
constitutional remedy. Learned single judge need not have entertained the
revision petition at all and the party affected by the interim ex parte order
should have been directed to resort to one of the other remedies. Be that as it
may, now it is idle to embark on that aspect as the High Court had chosen to
entertain the revision petition.
In the
light of the direction issued by the High Court that the trial court should
pass final orders on the interlocutory application filed by the plaintiff on
merits and in accordance with law, we may further add that till such orders are
passed by the trial court, status-quo as it prevailed immediately preceding the
institution of the suit would be maintained by the parties.
This
appeal is disposed of with the above observations and directions.
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