[O.39 R.3 CPC] Court Must Give Reasons For Granting Ad-Interim Injunction Without Notice To Opposite Party: Karnataka HC Reiterates

The Karnataka High Court has reiterated that before granting an ad-interim temporary injunction without notice to the opposite party, the trial court must assign reasons on whether the object of granting the injunction would be defeated by delay. Justice H P Sandesh, said, “The word used in Order 39 Rule 3 (Civil Procedure Code) is the court shall exercise the discretion and when the statue itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.” The court held thus while allowing an appeal filed by Bowring Institute challenging the order dated 22.11.2024, passed on an application filed by one Sarwik S. The court had by way of temporary injunction restrained the appellant from passing any orders based on the resolution dated 25.10.2024 in respect of removal of the Sarwik from its membership till the next date of hearing. Sarwik who is a life member of the Institute had used the swimming pool during the restricted hours, the security guard and other members of the Institute had scolded him. 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 an incident in future. On 19.07.2024 the institute obtained a complaint from the security guard and issued a show cause notice on 20.07.2024. In spite of tendering an apology by Sarwik, on 05.10.2024 the authority recommended the plaintiff to be removed from his membership on the ground that he had 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 the same is confirmed in the General Body Meeting. The defendants in order to remove the plaintiff from its permanent membership, called the General Body Meeting to be held on 29.11.2024. Following which Sarwik moved the trial court which passed the impugned order. Appellant contended that the order is contrary to the mandatory provisions of Order 39 Rule 3 of CPC, the Trial Court has not assigned any reasons in the impugned order. Thus the essential ingredient of Rule 3 of Order 39 of CPC has not been complied with. Moreover, the trial court presumption that the Special General Body meeting scheduled on 29.11.2024 would decide against respondent No.1 and endorse the recommendation of the Managing committee to expel respondent No.1 is without any basis and there cannot be any speculation and granting of temporary injunction. The respondent contended that the very appeal itself is not maintainable. An ex parte order of injunction cannot be questioned in a Miscellaneous appeal. Findings: The bench noted that the trial court granted the relief of temporary injunction narrating the case of the plaintiff. The court has in the order said perused the material on record and at this stage, the plaintiff has made out a ground to grant an ex parte interim order.Referring to Order 39 Rule 3 of CPC, the court said “The proviso Order 39 Rule 3 is clear that the court shall in all 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.” Further it said “No doubt, there is a proviso to file an application under Order 39 Rule 4 and seek for vacating of the interim order. But in the case on hand, it has to be noted that the General Body meeting was stayed by the Trial Court to be held on 29.11.2024 and interim order was granted on 22.11.2024 and there were only five days remaining.” Following which it held “There is no compliance of Order 39 Rule 3 of CPC while passing such an order and no such reasons are given by the trial court except stating that perused the material on record and even for dispensing notice also, no such reasons are also made that if notice is issued it would defeat the very object and hence, the contention of the appellant counsel with regard to the violation of Order 39 Rule 3 is concerned is 22 acceptable.” Rejecting the contention of the respondent that appeal is not maintainable. The court said, “The appeal is maintainable under Order 43 Rule 1(r) of CPC, if the order is in violation of Order 39 Rule 3 of CPC. Even though a proviso is made under Order 39 Rule 4 of CPC, the Court has to take note of exigency.” Setting aside the impugned order the court directed the trial court to consider the application on merits within a period of 30 days. Appearance: Advocate Manian K B S for Appellant.Advocate...

[O.39 R.3 CPC] Court Must Give Reasons For Granting Ad-Interim Injunction Without Notice To Opposite Party: Karnataka HC Reiterates

Mustafa Plumber

Tags