Full Judgment Text
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 7 DAY OF MARCH, 2014
BEFORE
THE HON’BLE MR. JUSTICE N. KUMAR
WRIT PETITION NO.13992 OF 2012 (GM-CPC)
BETWEEN:
SRI N. A. HARIS
S/O DR. N. A. MOHAMMED
AGED ABOUT 45 YEARS
‘NALAPAD HOUSE’, NO.23
MAGARATH ROAD, I CROSS
BANGALORE – 560 025 ...PETITIONER
(By MR. UDAYA HOLLA, SR. COUNSEL)
AND:
1. SRI. RAJIV HEGDE
S/O. NOT KNOWN
AGED MAJOR
REPORTER
KANNADA PRABHA
NO.1, QUEENS ROAD
BANGALORE – 560 001
2. SRI. VISVESHWAR BHAT
S/O. NOT KNOWN
AGED MAJOR
EDITOR
KANNADA PRABHA
2
NO.1, QUEENS ROAD
BANGALORE – 560 001
3. SRI. K. SHANKARAN NAYAR
S/O. NOT KNOWN
AGED MAJOR
PUBLISHER
KANNADA PRABHA
NO.1, QUEENS ROAD
BANGALORE – 560 001
4. KANNADA PRABHA PUBLICATIONS
PVT. LTD.,
NO.1, QUEENS ROAD, MAJOR
BANGALORE – 560 001
REPRESENTED BY ITS
EDITOR ...RESPONDENTS
(By SRI SAJAN POOVAYYA, ADVOCATE
FOR R.1, R.2 AND R.4,
R.3 SERVED)
THIS WP IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 18.4.12 PASSED BY THE VIII ADDL.
CITY CIVIL JUDGE, BANGALORE ON IA NO.1 IN OS
NO.2790/12 VIDE ANNEX-K AND GRANT AN ORDER OF
TEMPORARY INJUNCTION AS SOUGHT; TO GRANT INTRIM
ORDER TO RESTRAIN THE RESPONDENTS, THIER MEN,
AGENTS, SERVANTS OR ANY ONE CLAIMING THROUGH
OR UNDER THEM FROM MAKING ANY DEFAMATORY
STATEMENTS AND ALLEGATIONS ABOUT THE
PETITIONER.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP, THIS DAY, THE COURT PASSED
THE FOLLOWING:-
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O R D E R
This writ petition is filed challenging the order passed
by the trial Court declining to grant ad interim order of
injunction and ordering emergent notice returnable nearly
after a month i.e., 24-5-2012. It is submitted at the time of
arguments that the defendant has already entered
appearance, filed the statement of objections to the I.A.
However, the application for temporary injunction is not
taken up for consideration and no orders are passed.
2. Order XXXIX Rule 1 and 2 provides for grant of
an order of temporary injunction if the conditions stipulated
therein are satisfied. A temporary injunction is of two types.
One, granted without finally disposing of the application for
temporary injunction to operate immediately till the disposal
of the said application. Two, granted while finally disposing
of the main application generally till the disposal of the suit.
The former is generally called ad-interim injunction. The
latter is generally called temporary injunction. Relief by way
of interlocutory injunction is granted to mitigate the risk of
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injustice to the plaintiff during the period before the
uncertainty could be resolved. It is only when a claim is
made in the suit which, if established, would entitle the
plaintiff to relief by way of injunction. That interim relief
could be granted by way of temporary injunction, so that
relief in the suit might not be rendered infructuous.
3. Order XXXIX Rule 3 provides that the Court
shall, in all cases, before granting an injunction, direct
notice of the application to be given to the opposite party. It
is a rule. However, the said provision carves out an
exception. i.e., where it appears that the object of granting
the injunction would be defeated by the delay, then the
Court is vested with the power to grant an ex-parte ad
interim injunction. The proviso to Rule 3 provides the
conditions to be fulfilled while granting such ex-parte
injunction. One such condition is, the Court shall record the
reasons for its opinion that the object of granting the
injunction would be defeated by delay, i.e., by issuing notice.
Therefore, if there is no immediate threat, a notice should be
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issued. The requirement of giving reasons for the opinion of
the Court that the object of granting the injunction would be
defeated by delay, as laid down in the proviso, is mandatory.
If it is held directory then the introduction of the proviso by
the Parliament shall be a futile exercise and the proviso to
Rule 3 will be a surplusage for all practical purposes.
Therefore, the Court must record its reasons in writing for
granting an ex-parte injunction.
4. If an order of injunction is granted then, an
obligation is cast on the Court under Rule 3A to make an
endeavour to finally dispose of the application within 30
days from the date of which the injunction was granted.
However, if it is unable so to do it shall record its reasons for
such inability. Therefore, Rule 3A of Order XXXIX casts a
three-pronged protection to the party against whom the ex-
parte injunction order was passed. 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 bypass the said protective measure. Second is
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the statutory obligation cast on the Court to pass final
orders on the application within the period of 30 days. Here
also it is only in very exceptional cases that the Court can
bypass 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.
5. In view of these stringent conditions prescribed
under law, the tendency is that no ex-parte injunction is
granted. The Court is well within its jurisdiction to order
notice. Then, it has an obligation to see that the said notice
is duly served at the earliest so that the grievance of the
plaintiff could be addressed after hearing both the parties. If
this responsibility is not kept in mind, by ordering notice the
case is adjourned beyond a month and in the meanwhile any
injury is caused to the plaintiff who is already before the
Court, then the very statutory remedy given to him would be
rendered useless. Such a situation is to be avoided if people
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have to respect the Courts. In such cases emergent notice is
to be ordered, on appearance of the defendant, he should be
compelled to file the objections at the earliest and the
application should be taken up for consideration and an
order is to be passed on its merits one way or the other. The
Court should remember, the defendant is not entitled to
adjournment as a matter of right to file objections after his
appearance. The defendant after his appearance normally
seeks time to engage a Counsel, or if he has engaged a
counsel, he requests for an adjournment to file objections.
Adjournment should not be granted for a mere asking. That
is how the defendant wants to drag on the proceedings and
delay the decision. It should not be encouraged. Once notice
is duly served and the defendant enters appearance, the
requirement of Rule 3 is complied with. The Court can
proceed to pass orders after hearing the parties. If the
defendant wants the Court to consider his defence, he must
file his objections on his appearance. It is for that purpose
the notice is issued. The Court is under an obligation to hear
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the parties at the earliest and pass an order on merits, one
way or the other. If the Court declines to grant an order of
temporary injunction, the plaintiff has a remedy by way of an
appeal. He cannot have any grievance against the Court.
But, after approaching the Court he is neither granted an
interim order nor his application is heard and decided on
merits after appearance of the defendant and in the
meanwhile his or her rights are affected, injury is caused,
then it would be a case of injury being caused to him by the
in action on the part of the Court and not by the opposite
party. Because all that is expected of him or her has been
done, but still his or her case is not heard and no orders are
passed. Such a situation is to be avoided at any cost by the
Courts.
6. Though Rule 3A applies to a case where exparte
order of temporary injunction is granted, by the same
analogy, the time prescribed there in could be applied to a
case where notice is ordered also. In such cases also the
Court should make every endeavour to finally dispose of the
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application for injunction within thirty days from the date
on which notice is ordered or at least thirty days from the
date on which the defendant enters appearance. Then only
the said provision will have any meaning and the working of
Civil Courts would be quite effective.
7. In the instant case, emergent notice is ordered
returnable nearly after a month. Order VIII Rule 1 is
amended making it obligatory for the defendant to file the
written statement within 30 days from the date of service of
summons. When that being the case, after declining to grant
an ex-parte order of temporary injunction, posting the case
beyond one month after ordering emergent notice would not
be a proper exercise of power by the trial Court. The very
object of issuing emergent notice is, to hear the defendant at
the earliest and then pass orders on merits. The said object
is defeated. Therefore, such an order suffers from failure to
exercise jurisdiction vested in the Court by law. It also does
not speak well of the system. One should do nothing to bring
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down the faith that the people of this country have in our
judicial system.
8. Therefore the course open to this Court would be
to direct the trial Court to take up the application for
temporary injunction for hearing immediately and to dispose
of the same within 7 days from the date of receipt of the copy
of this order.
Writ petition stands disposed of in the above terms.
Sd/-
JUDGE
Mgn/-