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ALLAHABAD HIGH COURT
Suneet Kumar, J.
Yogesh Agarwal —Petitioner
versus
Rajendra Goyel & Anr. —Respondents
C.M.W.P. No. 24892 of 2014
Decided on 10.7.2014
Counsel for the Parties:
For the Petitioner:Smt. Rama Goel Bansa1, Advocate.
For the Respondents:Mr. Rahul Sahai, Advocate.
IMPORTANT POINT
Ex parte order of injunction is an exception.
Headnote:(A) Civil Procedure Code, 1908—Order 39 Rule 3—Ex parte temporary injunction—Power to grant temporary injunction is discretion of Court—Discretion should be exercised reasonably, judicially and on sound legal principles—Ex parte injunction should not be lightly granted as it adversely affects other side—Grant of injunction is in nature of equitable relief. (Para 8)
(B) Civil Procedure Code, 1908—Order 39 Rules 1 and 2—Temporary injunction—Applicant must make out a prima facie case in support of right claimed by him and court must be satisfied that there is a bonafide dispute raised by applicant and there is a strong case for trial which needs investigation and a decision on merits and on facts before court there is a probability of applicant being entitled to relief claimed by him—Existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction—Courts should not examine merits of case closely at that stage or try to restore a conflict of evidence nor decide complicated question of fact and law which call for detailed arguments and mature considerations—They are matters to be dealt with at trial—Grant or refusal of temporary injunction is not a mini trial. (Paras 9 and 10)
(C) Civil Procedure Code, 1908—Order 39 Rules 1 and 2—Temporary injunction—In deciding a prima facie case, court is to be guided by plaintiff’s case as revealed in plaint, affidavits or other materials produced by him—However, existence of prima facie case alone does not entitle applicant for temporary injunction—Applicant must further satisfy court about second condition by showing that he may suffer irreparable injury if injunction as prayed is not granted and that there is no other remedy open to him by which he can protect himself from consequences of apprehended injury—Expression irreparable injury r does not mean that there should be no possibility of repairing injury—It only means that injury must be a material one which cannot be adequately compensated by damages. (Paras 11 and 12)
(D) Civil Procedure Code, 1908—Order 39 Rules 1 and 2—Temporary injunction—Third condition of granting interim injunction is that balance of convenience must be in favour of applicant—Court must be satisfied that comparative mischief, hardship or inconvenience which is likely to be caused to applicant by refusing injunction will be greater than that which is likely to be caused to opposite party by granting it—If on weighing conflicting probabilities, court is of opinion that balance of convenience is in favour of applicant, it would grant injunction, otherwise refuse to grant it. (Para 14)
(E) Civil Procedure Code, 1908—Section 151 read with Order 39 Rules 1, 2 and 3—Temporary injunction—Rule 1 of Order 39, nowhere provides that no temporary injunction can be granted by court unless case falls within circumstances enumerated therein—Where case is not covered by Order 39, interim injunction can be granted by court in exercise of inherent powers under section 151 of Code—When court proposes to grant ex parte injunction without issuing notice to opposite party, proviso to Rule 3 enjoins court to record reasons for its opinion that object of granting injunction would be defeated by delay—Requirement of recording of reasons is not a mere formality but a mandatory requirement. (Paras 22 and 23)
(F) Civil Procedure Code, 1908—Order 39 Rule 3—Ex parte temporary injunction—Ex parte order of injunction is an exception—General rule is that injunction order be passed only after notice to defendant—It is only in rare cases where court finds that object of granting injunction would be defeated by delay, court can grant injunction ex parte but that too only after recording reasons—Ex parte injunction is not routine matter and it must be borne in mind by courts below. (Para 28)
Result: Writ Petition dismissed.
Suneet Kumar, J.—Heard Smt. Rama Goel Bansa1, learned counsel for the petitioner as well as Sri Rahul Sahai, learned counsel for the respondents.
2. The petitioner filed Suit No.445 of 2013 on 31.05.2013 for permanent prohibitory injunction against the defendant/respondents alongwith an application for temporary injunction. The plaintiff/petitioner on request got the suit adjourned for 04.07.2013 and again it was adjourned for 09.07.2013 and on the said date an ex parte injunction was granted. Aggrieved, the respondent/defendants preferred Misc. Appeal No.93 of 2013 (Rajendra Goel and another Versus Yogesh Agarwal and others). The appellate court by the impugned order dated 16.12.2013 set aside the temporary injunction order dated 09.07.2013 passed by the trial court which is assailed in the present petition.
3. It is contended on behalf of the petitioner, that the trial court has assigned reasons as required under proviso to Order XXXIX Rule 3 while granting ex parte temporary injunction and it is the discretion of the Court to grant injunction, which ordinarily should not be interfered by the appellate court.
4. Learned counsel for the petitioner placed reliance upon the following judgments in support of her submission Smt. Chitra Agrawal Versus Jagdish Saran Goel, 1995(1) ARC 80, Shiv Saran Goyal and others Versus M/s. Kedar Nath Om Prakash and others, 1989(1) ARC 351, Badri Prasad Versus VIIth Additional District Judge, Allahabad and others, AIR 2002 All 198; M.Gurudas Versus Rasaranjan, 2006(65) ALR 331 (SC): 2006(7) Supreme 289, and Akbar Ali v. District Judge, 2004(55) ALR 781.
5. In rebutta1, Sri Rahul Sahai, learned counsel appearing for the respondents, submits that grant of ex parte injunction is exception to the general rule. The temporary injunction can be granted after notice to defendant inviting objections. No reason whatsoever has been assigned by the trial court for granting ex parte injunction, which is mandatory.
6. In support of his submission, learned counsel for the respondents has relied upon Morgan Stanley Mutual Fund Versus Kartick Das, 1994(3) JT 654, Road Flying Carrier and another Versus General Electric Company of India Ltd., AIR 1990 All 134, Kan Construction and Colonizers Pvt. Ltd. v. Allan Deo Noronha and another, 2006(65) ALR 278.
7. Rival submissions fall for consideration.
8. The power to grant temporary injunction is the discretion of the Court. The discretion, however, should be exercised reasonably, judicially and on sound legal principles; ex parte injunction should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief.
9. The first rule is that the applicant must make out a prima facie case in support of the right claimed by him and the court must be satisfied that there is a bonafide dispute raised by the applicant, and there is a strong case for trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. The existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction.
10. The courts should not examine the merits of the case closely at that stage or try to restore a conflict of evidence nor decide complicated question of fact and law which call for detailed arguments and mature considerations. They are matters to be dealt with at trial. The grant or refusal of temporary injunction is not a mini trial.
11. In deciding a prima facie case, the court is to be guided by the plaintiff’s case as revealed in the plaint, affidavits or other materials produced by him. Explaining the ambit and scope of the connotation “prima faci” case, in Martin Burn Limited Versus R.N. Banerjee, AIR 1958 SC 79, the Supreme Court observed as follows:-
“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established i
