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KARNATAKA HIGH COURT
H.P. Sandesh, J.
Bowring Institute – Appellant
versus
Sarwik S. and Ors. – Respondents
Miscellaneous First Appeal No.7641 of 2024 (CPC)
Decided on 20.12.2024
Civil Procedure Code, 1908 – Order 39 Rule 3 – Temporary injunction – Grant of – There is no compliance of Order 39 Rule 3 of CPC while passing such order – When ex-parte temporary injunction is granted, defendant has right to file application under Order 39 Rule 4 of CPC and seek for vacating the same – Court has to take note of indulgence of Court while exercising power under Order 43 Rule 1(r) of CPC – When order of trial court is in violation of fundamental principles of Order 39 Rule 3 of CPC, court must assign reasons – When statute itself requires reasons to be recorded, Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of plaintiff before hearing defendant. (Paras 16 and 18)
Result: Miscellaneous First Appeal allowed.
JUDGMENT (CAV)
This miscellaneous first appeal is filed challenging the order dated 22.11.2024 passed on I.A.No.1 in O.S.No.8292/2024 by the 41st Additional City Civil and Sessions Judge, Bengaluru granting the temporary injunction restraining the appellant from passing any orders based on the resolution dated 25.10.2024 in respect of removal of the plaintiff from the membership of defendant No.1 till the next date of hearing.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiff/respondent No.1 before the Trial Court is that the plaintiff is the permanent life member of the defendants Bowring Institute and the plaintiff visited the defendant Bowring Institute on 18.07.2024 along with his friend as a Guest to enjoy the privileges of defendant Institute and he being the permanent member of the defendant Institute used the swimming pool at about 11.45 p.m. by inadvertently and without knowledge of the plaintiff that he should not use the swimming pool at late night. The security guard and other members of the defendant’s Institute scolded the plaintiff saying that the plaintiff should not use the swimming pool during restricted hours. Immediately, the plaintiff orally tendered his apology to the security guard and other members who were present at the spot stating that he will not repeat such incident in future. But the defendants, intentionally, on 19.07.2024 obtained the complaint from the security guard on the very next day of the incident inspite of tendering the plaintiff’s apology and issued show cause notice on 20.07.2024 and after the receipt of show cause notice, the plaintiff appeared before the disciplinary committee and tendered his apology letter to the Secretary of the defendants institute. In spite of tendering apology, on 05.10.2024 recommending the plaintiff to be removed from his membership on the ground that he has violated the terms and conditions of the defendant institute. On 07.10.2024, the defendants institute passed an order of removal of the plaintiff from his membership and the same shall not take effect unless same is confirmed in the General Body Meeting. The said resolution was passed having grudge against the plaintiff. The defendants in order to remove the plaintiff from its permanent membership, called the General Body Meeting to be held on 29.11.2024. Having no other alternative remedy except to file the suit for the relief of declaration and hence, the plaintiff has filed the suit and also filed an application to stop the Special General Body meeting to be held on 29.11.2024. The trial court having considered the application, granted temporary injunction against the appellant herein. Being aggrieved by the order of the Trial Court, the present MFA is filed before this Court.
4. The main contention of the appellant before this court that the trial court committed an error in granting such temporary injunction order. The order dated 22.11.2024 is contrary to the mandatory provisions of Order 39 Rule 3 of CPC and the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay and then only the court is entitled to grant an ex parte injunction order but the Trial Court has not assigned any reasons in the impugned order dated 22.11.2024. The essential ingredient of Rule 3 of Order 39 of CPC has not been complied. Even otherwise respondent No.1 is not without remedy and the object of granting the injunction as prayed for, would not be defeated if the meeting as scheduled on 29.11.2024 is allowed to be proceeded with and General Body Meeting which is to decide endorsing the recommendation of the Managing Committee to expel respondent No.1 and it was always open for respondent No.1 to seek a stay of any adverse order that may be passed in the General Body Meeting held on 29.11.2024 itself. This is in case speculative and not a case for the grant of an ad-interim ex parte order of tem
Temporary injunction – When ex-parte temporary injunction is granted, defendant has right to file application under Order 39 Rule 4 of CPC and seek for vacating the same.
The court emphasized that an ex-parte temporary injunction must comply with Order 39 Rule 3 of CPC, requiring the court to assign reasons for its decision, failing which the order is liable to be set....
Non-compliance with statutory requirements for an ex parte injunction renders the order invalid, emphasizing the need for adherence to procedural mandates.
Non-compliance with the conditions of an ex parte injunction under Order 39, Rule 3 CPC renders the injunction invalid, necessitating prompt judicial action.
The failure to record reasons for granting an ex-parte injunction without notice constitutes a jurisdictional error and renders such orders unsustainable.
The court must record reasons for granting an ex parte injunction without notice, as required by the Code of Civil Procedure, ensuring fairness in judicial proceedings.
An appeal against an ex-parte injunction is maintainable under Order XLIII Rule 1(r), affirming that the right to appeal is a statutory right.
The court ruled that the votes required for the resolution must derive from those present at the time of voting, clarifying procedural legitimacy for future meetings.
Refusal to grant ex parte injunction is appealable; procedural adherence is vital for determining appealability under CPC.
Trial courts must evaluate and provide reasoning for injunction applications based on urgency and merits before requiring notice to the other party, as mandated by procedural rules.
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