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High Court Of Orissa
S. C. MOHAPATRA
SUBAL KUMAR - Appellant
Versus
PURNA CHANDRA - Respondent
CIV. REVN. 895 Of 1988
Decided On : 01/31/1989
INJUNCTION - ORDER 39, RULE 3, C. P. C. - CONDITIONS FOR GRANTING INJUNCTION - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - INSPECTION OF DISPUTED LAND - POWER OF COURT UNDER ORDER 39, RULE 7, C. P. C. - INHERENT POWER OF COURT UNDER SECTION 151, C. P. C. - DIRECTION TO POLICE FOR IMPLEMENTATION OF ORDER OF INJUNCTION.
Fact of the Case:
Plaintiffs filed a suit for partition and sought to repurchase land purchased by defendant 1. An ex parte ad-interim injunction was granted against defendant 1, who filed an application for appointing a person to inspect the disputed land. The trial court rejected the application and allowed the plaintiffs' application for a direction to the police to implement the injunction. Defendant 1 filed two civil revisions challenging these orders.
Finding of the Court:
The court held that the trial court erred in rejecting the defendant's application for inspection of the disputed land and in directing the police to implement the injunction. The court found that the defendant had a prima facie case, that the balance of convenience favored the defendant, and that irreparable injury would be caused to the defendant if the injunction was not lifted.
Issues: 1. Whether the trial court erred in rejecting the defendant's application for inspection of the disputed land? 2. Whether the trial court erred in directing the police to implement the injunction?
Ratio Decidendi: 1. The court held that the trial court erred in rejecting the defendant's application for inspection of the disputed land because such inspection was necessary for proper appreciation and adjudication of the matter. The court found that the dispute related to the situation of the disputed land, the nature of construction made, and the effect of such construction on the house of the plaintiffs. 2. The court held that the trial court erred in directing the police to implement the injunction because such direction was not necessary in the circumstances of the case. The court found that the defendant had not violated the injunction and that there was no evidence that he intended to do so.
Final Decision: The court allowed the defendant's civil revisions to the extent of setting aside the trial court's orders rejecting the defendant's application for inspection of the disputed land and directing the police to implement the injunction.
S. C. MOHAPATRA, J.
( 1 ) THESE two Civil Revisions filed by defendant 1 arise out of a common order in a suit. Accordingly, they are heard together and are disposed of by this common order.
( 2 ) ). Suit is for partition in which plaintiffs prayed for repurchasing the land purchased by defendant 1. In the suit, plaintiffs filed an application for temporary injunction against defendant 1. Ex parte ad-interim order of injunction was made by the trial court. Defendant 1 appeared and filed written statement disputing the claims of the plaintiffs. Objection to the application for temporary injunction was also raised by him. He filed an application for appointing a person to inspect the disputed land. During continuance of the order of injunction, plaintiffs filed an application for punishing defendant No. 1 for violating the order of injunction which is pending consideration. Plaintiffs filed an application for a direction of the trial court to the police to implement the order of injunction. Trial court rejected the application of defendant 1 and allowed the application of the plaintiffs in the impugned order. Hence these two Civil Revisions have been filed by defendant 1.
( 3 ) WHEN these revisions came up for admission, I disposed of them directing the trial court to appoint a person for inspection of the disputed land. I also set aside the order of the trial court directing the officer-in-charge, Baliapal P. S. to render assistance to the plaintiffs for implementation of the order of injunction. Since I disposed of both the revisions without hearing the opposite parties, I gave liberty to the opposite parties to move this Court for recalling the order passed by me in case they are prejudiced. Accordingly, application has been filed by the opposite parties for recalling the order. While considering the question of recalling the order, both the parties agree that the two Civil Revisions can be heard finally on merits.
( 4 ) AN order in favour of a party is not to be set aside without giving him an opportunity of hearing. Such order violates the principle of natural justice. That is also the reason why I gave liberty to the opposite parties to move this Court to recall the order in case prejudice is caused to them. This procedure was adopted by me to avoid delay in disposal since I would have stayed operation of the order and would have given notice to the opposite parties which would not have been in any manner beneficial to either party. In any case, the order passed by me in disposing of the two revisions being in violation of principle of natural justice is recalled.
( 5 ) ORDER 39, Rule 3, C. P. C. puts a restraint on a Court to grant injunction before issue of notice. However, exception has been provided with the specific condition that the Court granting injunction before notice must record the reason therefor. Whether order is ex parte before notice or the same is after hearing parties, three conditions are to be satisfied for restraining a person in exercise of power under S. 39, R. 1, C. P. C. They are : (i) prima facie case, (ii) balance of convenience and (iii) irreparable injury. All the three requirements are to be satisfied, While recording reason for these three conditions, Court is also to record the reason for passing the order before notice. In other words, the order must disclose the harm that would be caused if no order is passed before notice. Unless this is meticulously followed, legislative intention in prohibiting an order being passed without notice would be frustrated. In the present case, correctness of the order is not required to be examined since there is no effective challenge to the same by preferring an appeal. This is, however, a circumstance to be kept in mind in this case while considering the application of defendant 1 against whom the order of restraint continues.
( 6 ) THERE is no dispute that a proceeding is now pending against defendant 1 for having violated order of ex parte injunct
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