Non-compliance with the conditions of an ex parte injunction under Order 39, Rule 3 CPC renders the injunction invalid, necessitating prompt judicial action.

JUDGMENT :

Jaspreet Singh, J. - Heard Shri. Ravi Shanker Tewari, learned counsel for the petitioner and Shri. Lalit Kishore Pandey, learned counsel for private respondent no.3.

2. Under challenge is the order dated 26.05.2023 passed by the Additional District Judge/Special Judge, POCSO Act, Court No.1, Lucknow, whereby it dismissed the appeal of the petitioner and affirmed the grant of ex parte interim injunction order dated 06.09.2022 passed by Civil Judge (Senior Division), Malihabad, Lucknow in Regular Suit No.1732 of 2022.

3. The controversy before this Court is limited to an extent inasmuch as it is the case of the petitioner that the private respondent no.3 had instituted the suit for permanent injunction before the Civil Judge (Senior Division) Malihabad, Lucknow bearing Regular Suit No.1732 of 2022. Along with the plaint in suit, the private respondent no.3/plaintiff also moved an application under Order 39, Rule 1 and 2 C.P.C. duly supported by an affidavit.

4. It is the case of the petitioner that on 06.09.2022 the trial court while admitting the suit had also heard ex parte on the application under Order 39, Rule 1 and 2 C.P.C. and the trial court passed an ex parte interim order dated 06.09.2022 directing the parties to maintain status quo. By the said order itself the plaintiff was required to comply with the provision of Order 39, Rule 3 C.P.C. within 24 hours.

5. It is the case of the petitioner that a sham compliance of Order 39, Rule 3 C.P.C. was made by the private respondent no.3 as a result the said injunction order could not have subsisted nor could have been extended, as any person who approaches the Court must approach the Court with clean hand. In this regard, the counsel for the petitioner had drawn the attention of the Court to paragraph 12 of the petition wherein specific averments have been made to indicate that the compliance as alleged to have been done by the private respondent no.3 could not be treated as a valid compliance in terms of Order 39, Rule 3 CPC. Thus, for the aforesaid reason, the injunction order was liable to be recalled.

6. It is further submitted that even otherwise, if a court passes an ex parte interim order, then as per the legislative mandate, it is required to assign reasons, even though briefly to indicate that in case, if the said ex parte injunction order is not granted, it may entail frustration of the suit itself and on this count as well the order falls foul.

7. It is further submitted that the petitioner had filed an appeal and the lower appellate court also did not find favour with the reason that since the petitioner has adequate remedy of filing objections against the application under Order 39, Rule 1 and 2 C.P.C. which partakes the nature of an objection in terms of Order 39, Rule 4 C.P.C., hence, it would be appropriate for the petitioner to get the matter decided on merits as he had already put an appearance. Thus, it is submitted that the basic ingredients of Order 39, Rule 3 C.P.C., having been blatantly violated, yet this aspect has not been noticed either by the trial court or the lower appellate court, hence the both the orders are bad and interim order cannot subsist perpetuateory wrong.

8. Shri. Lalit Kishore Pandey, learned counsel appearing for the private respondent no.3 has filed his counter affidavit, which is taken on record after serving a copy on the counsel for the petitioner, who submits that he does not wish to file any rejoinder affidavit as the facts in the instant case are not in dispute and only a short but a legal question is involved.

9. Shri. Lalit Kishore Pandey, learned counsel appearing for the private respondent no.3 submits that the compliance of Order 39, Rule 3 C.P.C., was duly made. It is further urged that once the compliance is made, whether it is adequate or inadequate would be an issue which can be considered by the trial court while considering the application Order 39, Rule 1 and 2 C.P.C. on its own merits and specially once the or