CMP challenging rejection of ex parte injunction application. High Court held Section 80(2) CPC mandates hearing Government before granting relief, overriding Order XXXIX Rule 3 CPC; CMP dismissed.
CMP challenging the impugned order stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 20-Jun-2024 18:10:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.335 OF 2024 Chandrika Priyadarshini …. Petitioners
Mr. Sudhanshu Sekhar Jena, Advocate
-versus-
State of Odisha and another
…. Opp. Parties Mr. Amiya Kumar Mishra, Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA ORDER
Order No.
19.06.2024
Page 1 of 4
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 20-Jun-2024 18:10:44
“ 80(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of
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Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 20-Jun-2024 18:10:44
Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
Order XXXIX – XXX XXX XXX
3. Before granting injunction, Court to direct notice to opposite party.
The Court shall in all case, 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-
(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.”
6.1 No doubt, Rule 3 of Order XXXIX CPC makes a provision to dispense with service of notice on the Defendants-Opposite Parties to entertain an application under Order XXXIX Rules 1 and 2 CPC. In case, it appears to the Court that object of granting the injunction will be defeated by delay in entertaining the application for injunction, the Court may exercise the discretion under Order XXXIX Rule 3 CPC. But, the provision under
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Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 20-Jun-2024 18:10:44
Section 80(2) CPC makes it abundantly clear that where the Court grants leave to the Plaintiff to file the suit dispensing with service of notice on the Government under Section 80(1) CPC, no interim or other relief can be granted without giving an opportunity of hearing to the Government. Thus, the provision under Section 80(2) CPC being mandatory in nature, it overrides the provisions under Order XXXIX Rule 3 CPC, which is the discretion of the Court.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
Judge
Rojalin
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2 issues framed by the court
Whether notice can be dispensed under Order XXXIX Rule 3 CPC when an application under Section 80(2) CPC is pending
Whether Section 80(2) CPC overrides Order XXXIX Rule 3 CPC requiring an opportunity of hearing to the Government
2 provisions across 1 enactments
Chandrika Priyadarshini
State of Odisha
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
