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ORISSA HIGH COURT
K.R. Mohapatra, J.
Sri Rabindra Kumar Mohanty —Appellant
versus
Smt. Sujata Mohapatra & Ors. —Respondents
FAO No.86 of 2012
Decided on 10.7.2015
For the Appellant:M/s. D.K. Dey, C.K. Dey & A.K. Das, Advocates
For the Respondents:M/s. D.K. Mohanty, D.K. Rath & S.C. Tripathy, Advocates
IMPORTANT POINT
Normally when application is moved under Order 39 Rules 1 and 2, opportunity must be given to the opposite party before granting relief. Power under Rule 3 can be exercised to pass ex parte interim order on recording the finding that object of granting injunction would be defeated by delay if interim order is not passed.
Headnote:(A) Civil Procedure Code 1908, Order 39 Rules 1, 2 and 3- Power of the Court to pass ex-parte interim order till particular date or till decision of the case – Rules of Natural Justice – When application is made for interim injunction, Rule 3 empower the Court to pass ex-parte interim order but the court is required to record finding that the object of granting injunction would be defeated by delay – Though rules of Natural Justice demand that when application is made for interim injunction, the person against whom relief is sought must be heard – Exercise of power under Rule 3 to pass ex-parte order without hearing the opposite party is available only for issuance or postponing of the notice and not to pass interim injunction – Such ex-parte interim order can be passed only under Order 39 Rules 1 and 2 and not under Rule 3. (Paras 4 to 9)
(B) Civil Procedure Code, 1908, Rule (1) (r) read with order 39 Rule 3- Appeal against the ex-parte interim order of injunction – Such appeal is maintainable under Order 43 (1) (r) – However, when the order is passed refusing to exercise the power under Rule 3, no appeal is maintainable against such order. (Para 6)
Facts of the Case
Where along with plaint the plaintiff filed application under Order 39 Rule 1 and 2 C.P.C., (I.A. No. 7 of 2012) praying, inter alia, to restrain the defendants from alienating the suit property. The plaintiff also filed an application under Order 39 Rule 3 C.P.C. along with the said interim application with a prayer to pass an ex parte ad interim injunction. Entertaining the aforesaid applications, the learned Civil Judge by his order dated 16.01.2012 passed an ex parte interim order restraining the opposite parties therein, i.e. the appellant and respondent Nos. 2 to 4 from alienating any part of the suit property during pendency of the suit.
Findings of the Court
The trial court passed an order restraining the opposite part from alienating the suit property to be remained in force during pendency of the suit unless the same is set aside or modified. Rule 3 empowers the Court to pass an ex parte interim order till a particular date because of exigency in the matter and the Court while passing the ex parte interim injunction records the finding that the object of granting injunction would be defeated by the delay. Hence, the Court should not have restrained the opposite parties from alienating the suit property till disposal of the suit. Such an order, is not sustainable in the eye of law. Further, the Court before passing an ex parte ad-interim order of injunction should always keep in mind that all the three ingredients for grant of the order of injunction are satisfied in the case. When one of the ingredients as discussed above is not satisfied, the plaintiff is not entitled to the relief of injunction.
Result: Petition allowed.
K.R. Mohapatra, J.—This appeal has been filed assailing the order dated 16.01.2012 passed by the learned Civil Judge (Senior Division), Jaleswar in I.A. No.7 of 2012 arising out of C.S. No.5 of 2012, wherein, the learned Civil Judge granted an ex parte ad interim injunction in exercise of power conferred under Order 39 Rule 3, C.P.C. restraining the appellant and others from alienating the suit property during pendency of the suit.
2. Civil Suit No.5 of 2012 has been filed by plaintiff/respondent no.1 for partition of the suit schedule property, to declare the gift deed executed by the defendant nos. 1 to 3 in favour of defendant nos. 4 and different sale deeds executed in favour of defendant nos. 5 and 6 as null and void. and for permanent injunction. Along with the plaint, the plaintiff-respondent no. 1 filed an application under Order 39 Rule 1 and 2, C. P. C. (I.A. No.7 of 2012) praying, inter alia, to restrain the defendants from alienating the suit property. The plaintiff also filed an application under Order 39 Rule 3, C. P.C. along with the said interim application with a prayer to pass an ex parte ad interim injunction. Entertaining the aforesaid applications, the learned Civil Judge by his order dated 16.01.2012 passed an ex parte interim order restraining the opposite parties therein, i.e., the appellant and respondent nos. 2 to 4 from alienating any part of the suit property during pendency of the suit. The defendant no. 5 (appellant) being aggrieved by the said order has preferred this appeal.
3. At the outset, Mr. D.K. Dey, learned counsel for the appellant advanced his argument on the question of maintainability of the appeal and submitted that the power of the Court to grant an ex parte ad interim injunction does not flow from Order 39 Rule 3 C.P.C., but from the provisions under Section 94 read with Order 39 Rule 1 and 2 C.P.C. The impugned order of ad interim injunction being passed under Order 39 Rule 1 and 2, C.P.C., the appeal is very much maintainable under Order 43 Rule 1 (r) of C.P.C.
4. The rules of natural justice demand that when an application under order 39 Rules 1 and 2, C.P.C. is made before a court, the person(s) against whom the relief is sought for must be given an opportunity of being heard. But, situation/circumstance may demand immediate interference of the court to pass an order, which if not passed may occasion failure of justice and would defeat the very purpose of making such application. In such a situation, the Court may proceed to entertain the application for interim injunction filed under Order 39 Rules 1 and 2, C.PC. before issuance of notice to person(s) against whom the relief is sought for. This is the requirement of Rule 3. However, proviso to Rule 3 is introduced in order to restrict the court to exercise such power liberally, which requires the court to record its reason for postponement of notice when it proposes to pass an ex-parte ad-interim order of injunction. Thus, it is quite clear that exercise of power under Rule 3 of Order 39, C.P.C. is available only for issuance and/or postponement of notice and it has nothing to do with passing of an order of interim injunction. Accordingly, an ex-parte ad interim order of injunction can only be passed in exercise of power conferred under Order 39 Rules 1 and 2, C.P.C. In the case of A. Venkatasubbiah Naidu v. S. Chellappan and others, AIR 2000 SC 3032, the Hon’ble Supreme Court while dealing with similar situation held as under:
“11. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the
