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IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Nanda Roy and others - Petitioners
Versus
Gynanidhi Trust and others - Respondents
C.O. No. 2191 of 2013
Decided On : 09-09-2015
ORDER 39 RULE 3 - INJUNCTION - APPEALABILITY - An order refusing to grant an ex parte ad interim injunction and directing issuance of notice to the defendant is an order passed under Section 94 read with Order 39 Rules 1 and 2 of the CPC and not under Order 39, Rule 3 thereof. Such an order is an appealable order as provided in Order 43, Rule 1(r) of the Code.
Fact of the Case:
In a suit, the Trial Court refused to pass an ex parte ad interim order of injunction and directed issuance of notice upon the defendants to show cause as to why the prayer for temporary injunction shall not be allowed. Being aggrieved, the plaintiffs preferred Misc. Appeal before the Ld. Addl. District Judge. The Appellate Court held that the appeal was not maintainable.
Finding of the Court:
The court held that an order refusing to grant an ex parte ad interim injunction and directing issuance of notice to the defendant is an order passed under Section 94 read with Order 39 Rules 1 and 2 of the CPC and not under Order 39, Rule 3 thereof. Such an order is an appealable order as provided in Order 43, Rule 1(r) of the Code.
Issues: Whether an order by which the Lower Court directs issuance of notice to the defendant but declines to grant an ex parte ad interim order is an appealable order.
Ratio Decidendi: The court held that the power to grant ex parte injunction does not stem from Rule 3 Order 39. When a court passes or refuses to pass an ex parte order of injunction on an application under Order 39 Rules 1 and 2, the court exercises its power under Section 94 of the Code read with Order 39 Rules 1 and 2. The power of the court to pass an order of injunction, be it ex parte or upon hearing both the parties, is discretionary and in passing such an order or in declining to pass such an order the court exercises such discretion under Section 94 of the Code read with Order 39 Rules 1 and 2 thereof.
Final Decision: The court set aside the judgment and order of the Appellate Court and remanded the matter back to the Appellate Court for deciding the appeal of the petitioners from the Ld. Trial Court's order on merits as expeditiously as possible and in any event within a period of two months from the date of communication of this order.
Arijit Banerjee, J.
In this revisional application the petitioners challenge a judgment and order dated 24th April, 2013 passed by the Ld. Additional District Judge, 11th Court at Alipore, District South 24 Parganas in Misc. Appeal No. 200 of 2011 dismissing an appeal against an order dated 21st April, 2011 passed by the Ld. Civil Judge (Junior Division), 1st Court at Alipore, District 24 Parganas South in Title Suit No. 1163 of 2011. By the order dated 21st April, 2011 the Ld. Trial Judge refused to pass an ex parte ad interim order of injunction on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and directed issuance of notice upon the defendants to show cause as to why the prayer for temporary injunction shall not be allowed. Being aggrieved, the petitioners herein who are the plaintiffs in the suit, preferred Misc. Appeal No. 200 of 2011 before the Ld. Addl. District Judge. By the judgment and order impugned in the present application the Ld. Addl. District Judge held that the appeal was not maintainable.
2. The sole question that arises for consideration by this court is whether an order by which the Lower Court directs issuance of notice to the defendant but declines to grant an ex parte ad interim order is an appealable order.
3. Before discussing the various decisions cited by Ld. Counsel for the parties and decisions considered by the Appellate Court, it would be useful to take note of Order 39 Rules 1, 2 and 3 of the Code of Civil Procedure which provide as follows:-
"Order 39, Rule 1. Case in which temporary injunction may be granted. - Where in any suit it is proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors,
[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court think fit, until the disposal of the suit or until further orders.
R. 2. Injunction to restrain repetition or continuance of breach. -
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract of injury complained, of, or any breach contract or injury of a like kind arising out of the same contract or relating to the same property or right.
R. 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 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 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
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