( 1 ) THE appeal has come up before us for admission under Order 41, Rule 11 of the Code of Civil Procedure, on being mentioned, on behalf of the appellants. Since there was a Caveat, copy of the proposed application in connection with the appeal for interim order as also the supplementary affidavits, which we direct, would form part of the said application, had been served on the learned Advocate filing the Caveat and, accordingly the caveators are represented by their learned Advocate before us at the time of hearing of the appeal for admission and the application.

( 2 ) WE have heard out the appeal and the application together after admitting the appeal.

( 3 ) SINCE, admittedly, the application for injunction is pending consideration by the Trial Court upon contest, we proposed to hear out the First Miscellaneous Appeal, and the connected application for interim order together finally and the learned counsel, representing the parties, have, indicated their 'no objection' to such a procedure. We have, accordingly, heard out the appeal and the application after dispensing with all formalities including those relating to the preparation of paper book. Separate service of notice of appeal has also been waived by the learned Advocates, appearing for the plaintiffs/ respondents. So far as other defendants/respondents are concerned, in our view, as regards dispute involved in the appeal they are not necessary parties and, therefore, we dispense with service of notice on them also of the appeal and the connected application.

( 4 ) WE have heard Mr. Kapur, in support of the appeal, and Mr. Mitra, on behalf of the Caveators. The impugned order of injunction had been issued ex parte by the Trial Court against the appellants.

( 5 ) NO doubt, as contended by Mr. Mitra, on behalf of the Caveators, that there can be said to be findings on two important conditions, which govern the grant of refusal of the injunction, namely, existence of a prima facie case and/or balance of convenience, yet in view of the pronouncement of the Supreme Court in the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi reported in (1993)3 SCC 161, it can no longer be said that mere existence of the aforesaid two factors can justify issue of an ex pane ad-interim order. In our view, amended provision of the Code of Civil Procedure in order 39, Rule 3, by its proviso, further requires that in the matter of grant of an ex parte ad-interim order, the Court must record the reasons for its opinion as to why the object of granting the injunction would be defeated by delay (underlining is ours ). In other words, ordinarily, the injunction should be upon notice and findings about existence of a prima facie case or balance of convenience would be arrived at after hearing the contesting parties. In the cases covered by the proviso, only on fulfilment of the requirement under the proviso, which we have indicated earlier, injunction can be granted ex parte.

( 6 ) THE language of the Supreme Court in the decision, referred to above, is absolutely clear. In the impugned order, though it can be said, as argued by Mr. Mitra, that the Court had found existence of a prima facie case or even by implication, existence of balance of convenience, such findings, apart from being ex parte, cannot be said to satisfy the requirement of the proviso to Rule 3 of Order 39 as interpreted by the Supreme Court. The judgment of the Supreme Court is clear as to the manner in which and opinion in terms of the said proviso which was to be arrived at by the Court and the factors which had to be adverted to for arriving at such an opinion. The order impugned, in our view, is clearly a departure from the said process.

( 7 ) WE, accordingly, allow the appeal and set aside the impugned order. We direct the Trial Court to hear out the injunction application within three weeks from the date of communication of this order to the Trial Court. In doing so, we direct the clients of Mr. Kapoor

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