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1987 Supreme(Cal) 68

A.M.BHATTACHARJEE, AJIT KUMAR NAYAK
MUKTAKESI DAWN – Appellant
Versus
HARIPADA MAZUMDAR – Respondent


Advocates Appeared:
ANIL RAKSHIT, BHASKAR GHOSH, SAKTI NATH MOOKERJEE, SHYAMA PRASANNA ROY CHOUDHURY, SUDIPTA ROY

Judgement Key Points

Key Points: - The court held that recording of reasons for ex parte injunction under the Proviso to Rule 3 is not mandatory to warrant reversal solely for omission, if there are materials showing good reasons. (!) - The doctrine of lis pendens under Section 52 of the Transfer of Property Act does not always fully protect plaintiffs; interim injunction restraining pendente lite transfers can be justified in fit and proper cases. (!) (!) - The trial court’s ad interim ex parte injunction was upheld, and the matter was directed to be heard expeditiously for the temporary injunction application. (!) (!)

What is the status of mandatory recording of reasons for ex parte injunction under Rule 3 of Order 39 of the Civil Procedure Code?

What are the circumstances under which a pendente lite transfer may be restrained despite lis pendens protections?

What factors justify granting an ad interim ex parte injunction and directing expeditious hearing of the temporary injunction application?


A. M. BHATTACHARJEE, J.

( 1 ) THE impugned order of ad interim ex parte injunction has been assailed by Mr. Roy Chowdhury, the learned counsel for the appellants, on more grounds than one, but none appears to be of that substance to warrant our intervention in this appeal.

( 2 ) MR. Roy Chowdhury has firstly submitted that under the provisions of R. 3 of O. 39 of the Civil P. C. as amended by the Amendment Act of 1976, the Court can grant an injunction ex parte before serving notice on the opposite party only when it is satisfied that the object of granting injunction would be defeated by the delay in serving such notice and, while granting such injunction ex parte, the court, "shall record the reasons for its opinion" that the object of granting injunction would be defeated by such delay. Mr. Roy Chowdhury has accordingly urged that the impugned order of ex parte injunction is bad as no such opinion or any reason therefor has been recorded by the trial Judge. It is true that the relevant Proviso to R. 3, as inserted by the Amendment Act of 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Co








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