1997 Supreme(Guj) 210

Gujarat High Court
Judgename :SHARAD D.DAVE
GUJARAT STATE PETROLEUM CORPORATION LIMITED - Appellant
Versus
GUJARAT GAS company LIMITED - Respondent
Civil Appeal 206 of 1997
Decided On : 04/25/1997

Headnote:(a) Civil Procedure Code, 1908 - Order 43 Rule 1(r) - Appeal from ex parte injunction order under Order 39 Rules 1 and 2 - Can be entertained by the appellate Court, though in rarest of the rare cases, notwithstanding the fact that the aggrieved party could approach the Court granting the injunction for its vacation or modification - Held, the Court of appeal, wanting to interfere ex parte against the ex parte orders of the Court below is required to be more cautious.

       It is not incumbent upon the affected party which has been injuncted by the Court below to approach the very same Court and that the party has got a statutory right to avail of the statutory remedy by approaching the higher forum by taking out the Appeal From Order. This is true in respect of the final orders of the Court below after hearing both the sides as well as against those orders which are passed in favour of the plaintiff and against the defendant, ex-parte, i.e., without the issuance of a showcause notice and without hearing the affected injuncted party.

       [Para 9]

       The party who has been injuncted by the Court below has got the twin remedies, namely, to appear before the very same Court on the next date of hearing and to urge either for the cancellation or the modification of injuncting orders or to approach the appellate forum by presenting the Appeal From Order, even against the ex-parte orders. It is clear that, ordinarily, the Court which hears the Appeal From Orders against the ex-parte orders issued by the Court below, should not interfere in the said order lightly, but that exercise should be limited for that category of cases which can be said to be "rarest of rare cases". If the Court of Appeal wants to interfere ex-parte against the ex-parte orders of the Court below, a more cautious view would be required.

       When the Court proposes to pass the orders of ex-parte injunction under Order 39 Rule 3 proviso, the Court has to record the reasons for its showing own that the object of granting the injunction would be defeated by the delay and that the injunction, therefore, is required to be granted.

       [Para 17]

       (b) Civil Procedure Code, 1908 - Order 39 Rule 3 proviso - Ex parte injunction - Held, Court has to record its reasons for showing that the object of injunction would be defeated by the delay - Court having neither said so in express terms nor its being apparent from the order that the Court was live to this requirement, grant of ex parte injunction was bad.

       It was the opinion expressed of this Court that, meanwhile, looking to the facts and circumstances of the case, with a view to see that contractual right of the plaintiff is not taken away, ad-interim injunction in terms of paragraph 17(a) is required to be granted. The question is, whether the above said say of the Court below can be said to be providing the reasons as required under the proviso annexed to Rule 3 of the Order 39 of the Code of Civil Procedure. The proviso makes it clear that the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay. The Court below has not said so in the express terms. It is true that the Statute cannot/does not expect a Court in all the cases to employ the same language, which has been utilised in the Statute. But of course, it should be apparent from the orders that the Court was live to the situation and the Court says so in its own language. Even accepting this proposition, it appears that the Court below has not said that the requirement of the above said proviso has been complied with.

       [Para 18]

       (c) Civil Procedure Code, 1908 - Order 39 Rules 1 & 2 - Ex parte injunction - Defendant making offer to the plaintiff for sale of additional quantity of gas as stipulated in the contract and asking for a reply from the plaintiff within a specified period - No reply sent by plaintiff within that period - Held, Ex parte injunction granted by Court in favour of plaintiff restraining defendant from selling additional gas to third party - Not valid.

       It was brought to the notice of the plaintiff Company that there are certain other buyers including the promoters, who have quoted the present price of Rs. 4.80/SCM at wellhead and the royalty, sales tax and other statutory levies shall have to be borne by the buyer.

       The plaintiff was put to the notice and was requested to indicate as to whether they would be able to purchase the gas at the above mentioned price, within a period of one week.

       [Para 23]

       After the last communication going from the appellant (defendent) to the respondent (plantiff) there has been no response saying that they would like to have the additional quantity of gas, upon a particular set of terms including the price.

       [Para 24]

       Therefore, it appears that the Court below was at an error in coming to the conclusion that the appellant Company were required to be injuncted from proceeding ahead in finalising the arrangement of sale for the additional quantity of gas unless and until all the particulars of all the offers were made available to the original plaintiff.

       [Para 27]