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PETITIONER: A.  VENKATASUBBIAH NAIDU

       Vs.

RESPONDENT: S.  CHELLAPPAN AND ORS.

DATE OF JUDGMENT:       19/09/2000

BENCH: K.T.  Thomas & R.P.  Sethi

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   When  a  plaintiff rushed to the civil court for an  ex- parte  interim  order  of  injunction against  some  of  the defendants  and obtained it, those defendants rushed to  the High  Court  to  get  that   order  quashed.   Both  parties succeeded in their respective endeavour and now both of them accuse each other for the course adopted by the other.  This appeal is by special leave at the instance of the plaintiff.

   The  subject  matter  of the litigation  is  a  property bearing  Door No.177 to 182 on the Big Street at  Triplicane in  Madras (now Chennai).  At this stage and in this  appeal it  is  unnecessary  to  narrate the facts  pleaded  by  the plaintiff  in  the  plaint  nor   by  the  contesting  first defendant  in answer thereto regarding the right to the suit property.   Suffice it to say that plaintiff claims to be  a lessee  under one S.  Alagu (who is arrayed as 6th defendant in the suit) in respect of the property and on that strength he  claimed to be in possession of the property.  He alleged that  the  defendants  1  to  5  have  been  threatening  to dispossess him.

   Appellant-plaintiff  filed  the suit on 25.6.1999 for  a decree  of permanent injunction restraining defendant  Nos.1 to  5 from dispossessing him.  Along with the institution of the suit he moved an application under Order 39 Rule 1 and 2 of  the  Code of Civil Procedure (for short the Code)  to pass an ad interim injunction restraining respondents 1 to 5 or  their  men  or agents, or their representatives  or  any person claiming through them or under them from evicting the petitioner  from the suit property other than by due process of law and to pass such further or other order or orders.

   On  29.6.1999  the  Assistant Judge of  the  City  Civil Court,  Chennai  passed the following ex-parte order on  the said  application:   Heard.    Documents  perused.   Rental receipt  Document  11  to  Document   47  proves  that   the petitioner   is  the  statutory   tenant  and  prima   facie possession  of  the suit property.  Though the property  was leased  out by R.6 on the basis of mortgage document 3,  the petition  is now in continuous possession of the property as tenant.   Hence  the balance of convenience is in favour  of

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the petitioner.  In the interest of justice, it appears that R.1  to R.5 are restrained from evicting the petitioner from the  suit property, except under due process of law.  Notice by 25.8.99.  Ad interim injunction till then.  Order 39 Rule 3 to be complied with."

   The   first  respondent,  on   behalf  of  himself   and respondent  Nos.2  to 5, filed a revision petition  invoking Article  227  of the Constitution before the High  Court  of Madras  alleging  that they purchased the property from  the owners  thereof as per different sale documents executed  on 15.3.1996,  and they were in possession and enjoyment of the property.   They  further alleged that one Ranganathan,  MLA and  one Hithayatullah together expressed a wish to purchase the  property from the respondents, but it was not agreed to and  then  those two persons exerted threat and pressure  on them  to capitulate to their demand.  As they did not  yield to such threats a suit was filed in 1998 by some parties who are  now supporting the present plaintiff.  The  respondents further alleged that the said suit was filed at the instance and  instigation  of  those two named  persons.   When  they failed  to get any relief therefrom another suit was  caused to  be filed through one M.  Devasinghamani on the  strength of  some concocted documents.  As no relief was obtained  in that  suit also the present suit, which is the third one  in the  series, has been filed at the behest of the above named persons, according to the respondents.

   Learned  Single  Judge of the High Court of  Madras  who disposed of the revision made the observation that the trial court  ought not have granted an order of injunction at  the first stage itself which could operate beyond thirty days as the  court had then no occasion to know of what the affected party  has to say about it.  Such a course is  impermissible under Order 39 Rule 3A of the Code, according to the learned single judge.  He, therefore, set aside the injunction order for  the clear transgression of the provisions of law  and noted  that this is the third suit filed in reference to the suit  property  and hence deprecated the grant  of  ex-parte injunction  without  notice.   Though learned  single  judge further  declined  to go into the other allegations, he  has chosen  to make the following observations also:   However, prima  facie,  I  am  satisfied  that  these  materials  are relevant  for  consideration  before   granting  ad  interim injunction.  As per the plaint and affidavit averments admit that  the first respondent is occupying a vacant portion  of 1670 sq.  ft.  and running paper business and charcoal.  But there  is  no document to show that the first respondent  is actually  in  possession and running such a business  except the  lease deed.  Hence the ex-parte order is unsustainable. For  all  these  reasons, I am of the view  that  the  order passed by the learned Judge is liable to be set aside and it is accordingly set aside.

   After  holding  thus learned Single Judge  directed  the trial  court  to take up the interlocutory  application  for injunction  and pass orders on merits and in accordance with law expeditiously.

   Sri  Sivasubramaniam,  learned Senior Counsel  contended that  the High Court should not have entertained a  petition under  Article  227 of the Constitution when the  respondent had  two  remedies statutorily available to him.   First  is that  the  respondent could have approached the trial  court for  vacating,  if not for any modification, of the  interim

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ex-parte  order passed.  Second is that an appeal could have been preferred by him against the said order.  It is open to respondent  to opt either of the two remedies, contended the Senior  Counsel.   Section  104 of the Code  says  that  an appeal  shall  lie  from the following orders, and  save  as otherwise  expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

   (i)  any order made under rules from which an appeal  is expressly allowed by rules.

   Order  43  Rule 1 says that:  An appeal shall lie  from the  following  orders under the provisions of  Section  104 namely;

   (r)  An  order under Rule 1, Rule 2, Rule 2A, Rule 4  or Rule 10 of Order 39.

   Order 39 Rule 1 says thus:  1.  Where in any suit it is proved by affidavit or otherwise -

   (a)  that any property in dispute in a suit is in danger of  being  wasted, damaged or alienated by any party to  the suit,  or  wrongfully sold in execution of a decree or  (b) that  the  defendant  threatens,  or intends  to  remove  or dispose  of  his  property  with a view  to  defrauding  his creditors,  (c)  that the defendant threatens to  dispossess the  plaintiff or otherwise cause injury to the plaintiff in relation  to any property in dispute in the suit, the  Court may  by order grant a temporary injunction to restrain  such act, or make such other order for the purpose of staying and preventing  the wasting, damaging, alienation, sale, removal or  disposition  of  the  property  or  disposition  of  the plaintiff,  or otherwise causing injury to the plaintiff  in relation to any property in dispute in the suit as the Court thinks  fit, until the disposal of the suit or until further orders.

   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 applicable as indicated in Order 43 Rule 1 of the Code.  The choice is for the party affected by the order either to move the  appellate  court  or to approach the same  court  which passed the ex parte order for any relief.

   Learned   Senior  Counsel  for   the  respondents   then contended   that  an  order   granting  injunction   without complying  with the requisites envisaged in Rule 3 of  Order 39  be void.  Rule 3 reads thus:  The Court shall in cases, except  where  it  appears that the object of  granting  the injunction  would be defeated by the delay, before  granting an  injunction direct notice of the application for the same to be given to the opposite party:

   [Provided  that,  where  it  is  proposed  to  grant  an injunction  without giving notice of the application to  the opposite-party,  the Court shall record the reasons for  its opinion  that the object of granting the injunction would be defeated by delay, and require the applicant

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   (a)  to deliver to the opposite-party, or to send to him by registered post, immediately after the order granting the injunction  has  been  made, a copy of the  application  for injunction together with-

   (i)  a  copy  of the affidavit filed in support  of  the application;   (ii) a copy of the plaint;  and (iii)  copies of documents on which the applicant relies, and

   (b)  to  file,  on the day on which such  injunction  is granted  or  on the day immediately following that  day,  an affidavit  stating  that the copies aforesaid have  been  so delivered or sent.

   What  would be the position if a court which passed  the order  granting  interim ex parte injunction did not  record reasons  thereof or did not require the applicant to perform the  duties  enumerated  in clauses (a) & (b) of Rule  3  of Order  39.   In  our  view such an Order can  be  deemed  to contain  such  requirements at least by implication even  if they  are  not stated in so many words.  But if a party,  in whose  favour an order was passed ex parte, fails to  comply with  the duties which he has to perform as required by  the proviso quoted above, he must take the risk.  Non-compliance with  such  requisites on his part cannot be allowed  to  go without  any consequence and to enable him to have only  the advantage  of it.  The consequence of the party (who secured the  order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party.  A disobedient  beneficiary  of  an order cannot  be  heard  to complain  against  any disobedience alleged against  another party.

   Learned  Single Judge stated that the trial court  ought not  to have granted ex parte injunction beyond thirty  days to  be  in  force.   The said observation is  based  on  the language  contained  in Order 39 Rule 3-A of the Code  which reads  thus:  Where an injunction has been granted  without giving notice to the opposite-party, the Court shall make an endeavour  to  finally  dispose of  the  application  within thirty  days  from  the  date on which  the  injunction  was granted;   and where it is unable so to do, it shall  record its reasons for such inability.

   The  Rule does not say that the period of the injunction order  should  be restricted by the Court to thirty days  at the first instance, but the Court should pass final order on it  within thirty days from the day on which the  injunction was  granted.   Hence, the order does not ipso facto  become illegal  merely because it was not restricted to a period of thirty days or less.

   Nonetheless,  we  have to consider the  consequence,  if any,  on  account  of the Court failing to  pass  the  final orders within thirty days as enjoined by Rule3-A.

   The  aforesaid Rule casts a three-pronged protection  to the  party  against whom the ex parte injunction  order  was passed.   First is the legal obligation that the Court shall make  an endeavour to finally dispose of the application  of injunction within the period of thirty days.  Second is, the legal  obligation  that if for any valid reasons  the  Court could  not  finally  dispose of the application  within  the

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aforesaid  time the Court has to record the reasons  thereof in writing.

   What  would happen if a Court does not do either of  the courses?   We  have to bear in mind that in such a case  the Court  would have by-passed the three protective humps which the  legislature  has provided for the safety of the  person against whom the order was passed without affording him an

   opportunity  to have a say in the matter.  First is that the  Court is obliged to give him notice before passing  the order.   It is only by way of a very exceptional contingency that  the Court is empowered to by-pass the said  protective measure.   Second  is the statutory obligation cast  on  the Court  to  pass final orders on the application  within  the period  of  thirty  days.   Here also it  is  only  in  very exceptional  cases that the Court can by-pass such a rule in which  cases  the legislature mandates on the court to  have adequate  reasons  for  such bypassing and to  record  those reasons  in  writing.  If that hump is also bypassed by  the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

   It is the acknowledged position of law that no party can be  forced  to suffer for the inaction of the court  or  its omissions  to act according to the procedure established  by law.  Under the normal circumstances the aggrieved party can prefer  an  appeal only against an order passed under  Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule  1  of the Code.  He cannot approach the  appellate  or revisional  court during the pendency of the application for grant or vacation of temporary injunction.

   In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law  must  have a remedy.  So we are of the view that  in  a case  where  the mandate of Order 39 Rule 3A of the Code  is flouted, the aggrieved party, shall be entitled to the right of  appeal  notwithstanding the pendency of the  application for grant or vacation of a temporary injunction, against the order remaining in force.  In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further  to  take  note of the omission of  the  subordinate court  in  complying  with the provisions of  Rule  3A.   In appropriate  cases the appellate court, apart from  granting or  vacating or modifying the order of such injunction,  may suggest suitable action against the erring judicial officer, including  recommendation  to take steps for making  adverse entry  in  his ACRs.  Failure to decide the  application  or vacate  the  ex-parte  temporary injunction shall,  for  the purposes  of  the  appeal, be deemed to be the  final  order passed  on the application for temporary injunction, on  the date of expiry of thirty days mentioned in the Rule.

   Now  what remains is the question whether the High Court should  have  entertained the petition under Article 227  of the  Constitution  when the party had two other  alternative remedies.   Though no hurdle can be put against the exercise of  the constitutional powers of the High Court it is a well recognized  principle which gained judicial recognition that the  High Court should direct the party to avail himself  of such  remedies  one  or  the other before he  resorts  to  a constitutional  remedy.  Learned single judge need not  have entertained  the  revision  petition at all  and  the  party affected  by  the  interim ex parte order should  have  been

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directed to resort to one of the other remedies.  Be that as it  may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.

   In  the light of the direction issued by the High  Court that  the  trial  court  should pass  final  orders  on  the interlocutory  application filed by the plaintiff on  merits and  in  accordance with law, we may further add  that  till such  orders are passed by the trial court, status-quo as it prevailed  immediately preceding the institution of the suit would be maintained by the parties.

   This  appeal is disposed of with the above  observations and directions.