Kalyan Jyoti Sengupta:-

1. Learned Counsel for the parties agree for final disposal of this appeal.

2. This writ appeal has been directed against an ad interim order passed by the learned single Judge dated 05.07.2013, which is as follows:

“There shall be interim suspension as prayed for.”

3. The undisputed fact is that the interim order was passed ex parte and without requiring any notice to be served. Therefore, we have to examine as to how the interim order is sustainable under law.

4. Learned Counsel for the appellant argues that this interim order was obtained by practicing fraud upon the Court as his client duly lodged a caveat and that once the caveat is lodged, notice is required to be served mandatorily. This fact was not placed before the learned single Judge. The materials are produced before us to show that the caveat was lodged. Learned Counsel for the appellant also says that this interim order is also not in accordance with the proviso to Rule 3 of Order 39 of the Code of Civil Procedure, which has been made applicable by virtue of Rule 23 of the Writ Rules of this Court.

5. Learned Counsel for respondent No.1/writ petitioner, on the other hand, says that the factum of filing of the caveat was not known to his client and the caveat was filed during the vacation Court and as such the factum of lodging the caveat could not be placed before the Court.

6. We are of the view that once the caveat was filed whether during the vacation Court or in normal functioning of the Court, the effect of its filing is the same. The caveat filed remains effective for certain period of time as stipulated under law and in this case it did not lapse and remained valid on the date of passing of the interim relief. On that ground alone, this interim order must be set aside and quashed as the protection of having prior notice, given under law is denied.

7. That apart, we have noticed that the learned single Judge while passing the ex parte ad interim order did not follow the mandatory requirements of Order 39 Rule 3 of the Code of Civil Procedure, which reads as follows:

“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.

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.”

8. The aforesaid provision was examined by the Hon’ble Supreme Court way back in 1993 in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi ((1993) 3 Supreme Court Cases 161). The Hon’ble Supreme Court in that case, while examining the scope came to the following legal conclusion:

“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 f