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Ex-Parte Orders Passed Without Issuance Of Notice Cannot Be Brought Within Purview Of S.36 CPC For Execution: Kerala High Court
Athira Prasad
13 Sep 2022 10:09 AM GMT
The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to...
The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.
Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to the opposite party, including an order passed under the proviso attached to Rule 3 of Order XXXIX CPC, will not have any binding force on the opposite party, since it is deprived of "audio alteram partem" (right to be heard) which is a fundamental requirement for making the order binding on the parties. Furthermore, the only exception to this fundamental principle is with respect to administrative matter when there is no occasion for causing prejudice to the opposite party, and also in the exercise of legislative authority.
...governs a "binding force" or "binding nature" is really resting on the "right to be heard" and not on the authority or jurisdiction vested with any court in the matter of issuance of any ad interim order or precautionary measure, without notice to the opposite party or to the person who will stand prejudiced by the order affecting his interest.
The dispute arose from an alleged infringement of trade mark and name of Raja Biri and Raja Bidi. An interim ex parte injunction was granted before issuing notice to the defendants restraining them from doing their business. However, the matter was not heard on merit within the time schedule of 30 days. Despite the defendant/appellant moving an application for an early hearing under Order XXXIX Rule 3A CPC, the matter was not heard. The trial court, meanwhile, appointed a Commission to collect the materials belonging to the defendants supplied to various shops and afforded police protection to the Commissioner. The Commissioner, in turn, collected all the materials belonging to the defendants supplied to various shops with police protection and thereby, the trial court implemented the interim ex parte injunction granted without notice to the defendants.
When the Appeal came before the Court, one of the important issues considered by the Court was whether an ex parte ad interim order of injunction can be executed through the Court by exercising jurisdiction under Section 36 of CPC and whether it can be treated at par with an order passed on its merits after hearing both the parties or in which one of the parties remained ex parte after notice.
The Court clarified that an order of ad interim injunction granted under the proviso to Rule 3 without giving notice of the application to the opposite party would also be an "ex parte" order, though normally, the said expression is used to refer orders or decree passed in the absence of an opposite party.
The Court observed that when there is the default on the part of the opposite party to appear and answer, the consequent order passed ex parte would stand binding upon him, but when no notice was issued, and no opportunity of hearing was given, the ex parte orders passed either by way of ad interim injunction or otherwise would fall under the ambit of Order XXXIX Rule 3 A CPC.
The Court observed that it is not permissible to treat an ex parte order of ad interim injunction granted before notice to the opposite party under the proviso to Rule 3 of Order XXXIX CPC on par with other ex parte orders or decrees. Implementation of an ad interim injunction can be done only after making it absolute after service of notice to the opposite party. Only then will it get a binding nature on the respective parties. Till that time, it cannot be executed through the court either under Section 36 or under Order XXI CPC.
Therefore, the Court observed that an order passed without issuing notice to the opposite party hence cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.
Thereby, the Court disposed of the Appeal, allowing the request for transferring the case to the Principal District and Sessions Court, Thiruvanthapuram and directed the Principal District Court to dispose of the interim injunction application.
Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.
Citation: 2022 LiveLaw(Ker) 483
