Point of Law: Rule 3 of Order 39 deals with procedure to be followed by court once an order of temporary injunction is sought under Rules 1 and 2 of Order 39.

ORDER :

The point to be answered in this writ petition filed under Article 227 of the Constitution of India is :

“If the plaintiff who has secured an exparte order of temporary injunction fails to comply with requirement of clauses (a) and (b) of proviso to Order 39 Rule 3 CPC, should the court vacate the order of temporary injunction?”

2. Given a look at the events that led to this writ petition being filed, the Additional City Civil Judge, (CCH-74), Bengaluru, in O.S.25288/2023, a suit for damages in relation to alleged defamation, passed an exparte order of temporary injunction on 23.2.2023 against defendants 1, 2 and 4 to 60 and directed respondent no.1 who is the plaintiff in the suit to comply with requirement of clauses (a) and (b) of proviso to Rule 3 of Order 39 CPC. The plaintiff filed an affidavit before the court reporting compliance, but there was no compliance as regards the petitioner herein, who is defendant no.60 in the suit. After she received the suit summons and appeared before the court on 7.3.2023, she brought to the notice of the court by filing a memo that there was no compliance and requested the court not to extend the exparte temporary injunction. The plaintiff, while seeking extension of the interim order filed a memo stating that she could not comply with requirement of clauses (a) and (b) of Order 39 Rule 3 due to inadvertence, but however stated in the memo that on 27.2.2023, she sent to defendant no.60 the intimation of grant of exparte order in her favour. In spite of coming to know about non-compliance within twenty four hours, the trial court extended the interim order on 7.3.2023. The order of extension is challenged in this writ petition.

3. I heard the argument of Sri. Madhukar Deshpande, learned advocate for the petitioner-defendant no.60, and Sri. P.N. Rajeshwara, learned advocate for respondent no.1-plaintiff.

4. The argument of Sri. Madhukar Deshpande was, the compliance to be made in accordance with clauses (a) and (b) of proviso to Order 39 Rule 3 is mandatory. The intention behind mandating the compliance is to bring to the notice of the defendant about the exparte order of temporary injunction passed against him. Compliance must be reported on the day the order is granted or on the day immediately following. If compliance is not reported, the court should not extend the interim order, and it must be vacated as has been held by the Supreme Court in its judgments in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others [(1993) 3 SCC 161] and A. Venkatasubbiah Naidu Vs. S. Chellappan and Others [(2000) 7 SCC 695] and the High Court of Delhi in the case of Moserbear India Ltd., Vs. Modern Cinema [2010 (117) DRJ 545].

5. Sri. P.N. Rajeshwara argued that while compliance as envisaged in Order 39 Rule 3 was mandatory, its non-compliance would not necessarily result in exparte order to be vacated or discontinued; its only effect would be that the plaintiff is rendered to such a position as he cannot initiate action for the disobedience of the order, and in support of this proposition he placed reliance on the decision in Venkatasubbaiah Naidu (supra) and of the High Court of Bombay in Vascon Engineers Limited Vs. Sansara Hotels India Pvt. Ltd., [2009 (4) LAWS(BOM) 63].

6. I have considered the points of arguments.

7. Rule 3 of Order 39 deals with the procedure to be followed by the court once an order of temporary injunction is sought under Rules 1 and 2 of Order 39. It is better to extract Rule 3 here :

“3. Before granting injunction, Court to direct notice to opposite party.-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