2000 Supreme(SC) 1543

2000(6) Supreme 269
SUPREME COURT OF INDIA
(From Madras High Court)
K.T. Thomas & R.P. Sethi, JJ.
A. Venkatasubbiah Naidu -Appellant
versus
S. Challappan & Ors. -Respondents
Civil Appeal No. 5102 of 2000
(Arising out of SLP (C) No. 19488 of 1999)
Decided on 19-9-2000
Counsel for the Parties :
For the Appellant : S. Sivasubramaniam, Sr. Advocate, M. Mohan, R. Nedumaran, Advocates.
For the Respondent Nos. 1-5 : V. Selvraj, Advocate for M/s. Arputham, Aruna and Co. Advocates.
For the Respondent Nos. 7-9 : M.A. Chinnaswamy, Advocate.

VERY IMPORTANT POINTS
1. Order 39, Rule 3A of CPC 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.
2. 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.

Headnote:(i) Constitution of India-Article 227-Code of Civil Procedure, 1908 -Order 39, Rule 1-Writ petition-Against order granting ex parte ad interim injunction-Writ Courtshould direct party to avail himself of remedies available under Code of Civil Procedure before he resorts to Constitutional remedy. (Paras 8, 10 and 18)

       (ii) Code of Civil Procedure, 1908-Order 39, Rules 1, 2 and 3A-Ad interim injunction-Any order passed in exercise of powers in Rule 1 would be appealable-Choice is for party affected by the order either to move appellate Court or to approach same Court which passed ex parte order for any relief. (Para 10)

       (iii) Code of Civil Procedure, 1908-Order 39, Rule 3-Ad interim injunction-Ex parte injunction-Failure to record reason or failure to require applicant to perform duties enumerated in clauses (a) and (b) of Rule 3-Legal effect-Order can be deemed to contain such requirements at least by implication.

       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) and (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. (Para 12)

       (iv) Code of Civil Procedure, 1908-Order 39, Rule 1 and 3A-Ad interim injunction-Ex parte injunction-Period of injunction need not be restricted to 30 days at first instance-Court should pass final order on it within 30 days from date injunction was granted-Order granting ex parte injunction would not ipso facto be illegal merely because it was not restricted to a period of 30 days or less-Where mandate of Rule 3A is flouted aggrieved party shall be entitled to right of appeal notwithstanding pendency of application for grant or vacation of temporary injunction.

       Rule 3A 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. (Para 13)

       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 sold sufferer. (Paras 15 and 16)

       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. (Para 17)