Allowed

Ishwar Chand Jangid v. Manoj Kumar Sharma

Rajasthan HC5 May 2023CMA/675/2023

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an ad interim injunction granted ex parte without recording mandatory reasons, holding it violated Order XXXIX Rule 3 CPC. The court also set aside relief granted for excavation restraint not sought in the prayer.

What did the court decide?

The impugned ad interim order is set aside. The trial court is directed to dispose of the temporary injunction application within 15 days.

Ishwar Chand Jangid Vs Manoj Kumar Sharma — Specific Performance | Rajasthan HC (2023)

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[2023/RJJD/013417]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 675/2023

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Ishwar Chand Jangid S/o Late Shri Mangi Lal, Aged About 64 Years, R/o Jhalra Talab, Maliyon Ka Mohalla, Makrana, District Nagaur. (Raj.)

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----Appellant

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Versus

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Manoj Kumar Sharma S/o Shri Kishan Sharma, R/o Vasundhara Nagar, Makrana, District Nagaur (Raj.)

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----Respondent

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For Appellant(s)	: Mr.	Narendra Thanvi with
	Mr.	Mahendra Thanvi
For Respondent(s)	: Mr.	D.L.R. Vyas

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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05/05/2023

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The present appeal has been preferred against the ad interim order dated 14.03.2023 passed by the Additional District Judge, Makrana (‘the learned Court below’) in Civil Misc. Case No.13/2023, whereby an ad interim injunction in favour of the plaintiff-respondent has been granted by the learned Court in a suit for specific performance filed by the plaintiff-respondent.

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The suit in question was filed on 14.03.2023 and on the same date, it was registered and the learned Court, while issuing notice to the defendant, proceeded on to grant an ex parte adinterim relief in favour of the plaintiff. Vide ad interim order, the defendant was restrained from excavating the disputed area of mine and also from transferring/selling the excavated stone material further.

[2023/RJJD/013417]

[CMA-675/2023]

(2 of 7)

Learned counsel for the appellant submitted that the order impugned as passed by the learned Court below is totally in contravention to the provisions of Order XXXIX Rule 3, Code of Civil Procedure (CPC) (herein after referred to as 'the Rule') and hence deserves to be set aside. Learned counsel submitted that it is the mandate of law that before granting an injunction, the notice of the application is to be given to the opposite party in all cases and it is only where it appears to the Court that the object of granting the injunction would be defeated by delay, the Court shall proceed on to grant an injunction without notice to the opposite party. The proviso to Order XXXIX Rule 3, CPC specifically lays down that while doing so, the Court shall record the reasons for the same. Learned counsel submitted that no reason whatsoever has been recorded by the learned Court in the present matter before proceeding on to grant the injunction in favour of the plaintiff. Further, even the compliance of other requirements as provided under Order XXXIX Rule 3, CPC has also not been made and therefore also, the order impugned deserves to be set aside. Learned counsel further submitted that the learned Court was under an obligation to dispose of the temporary injunction application finally within 30 days from the date on which the ex parte injunction was granted but the same having not been done, the defendant-appellant has been forced to prefer the present appeal. In support of his submissions, learned counsel relied upon the recent judgment passed by a Coordiante Bench of this Court in the matter of M/s. Jakhar Godara Marbel Mines Vs. M/s

[2023/RJJD/013417]

[CMA-675/2023]

(3 of 7)

Jakhar Godara Marbel Mines & Ors.; S.B. Civil Misc. Appeal

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No.485/2023, decided on 18.04.2023.

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Per contra, learned counsel for the respondent submitted that the learned Court below was very well within its jurisdiction to pass the ad interim order and so far as the final disposal of the temporary injunction application is concerned, the same could not be done only because of the defendant having not preferred the reply within time and further the defendant having preferred an application under Order VII Rule 11, CPC. Without the said application being decided, the temporary injunction application could not have been decided finally by the learned Court below. In support of his submission, learned counsel relied upon a judgment rendered in the matter of Ram Swaroop Vs.

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State of Rajasthan and Ors.; 2013 (4) WLN 8 (Raj.).

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Heard learned counsel for the parties and perused the material available on record.

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A bare perusal of the order impugned makes it clear that it is bereft of any reason/opinion of the Court below as to why the object of granting the injunction would be defeated if the ad interim order would not be passed without notice to the opposite party. Further a perusal of the order makes it clear that the next date fixed in the matter was 05.04.2023 i.e. after more than a period of 15 days whereas the law provides for application itself to be disposed of finally within a period of 30 days from the date on which the ex parte injunction is granted.

(4 of 7)

[2023/RJJD/013417]

[CMA-675/2023]

Order XXXIX Rule 3, CPC reads as under :

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“ 3. Before granting injunction, Court to direct notice to opposite party .—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:

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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—

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(i) a copy of the affidavit filed in support of the application;

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(ii) a copy of the plaint; and

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(iii) copies of documents on which the applicant, relies, and

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(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.”

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The provision specifically provides for the application of the same to all cases and that too, as a mandate, as the word used is “shall”. The only exception provided is the situation where the Court finds that the delay, if any, would defeat the sole object of granting the injunction. The provision is appended with a proviso which specifically lays down that even if the Court is to act in exception, it has to record its reasons for the same.

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The order impugned in question clearly does not speak of any such reason or opinion of the Court. The only reason recorded by the Court is that passing of ad interim order is

[2023/RJJD/013417]

[CMA-675/2023]

(5 of 7)

justified (न्यायोचि�त) in circumstances of the case. In the opinion of this Court, the same cannot be termed to be a reason/opinion in compliance of proviso to Order XXXIX Rule 3, CPC. The order impugned is clearly in contravention to the mandatory provisions of the Rule.

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Moreover, the order impugned does not seem to be in consonance with the other conditions as provided under the Rule also which provides for a direction to the plaintiff to file an affidavit on the same date/on the very next day with a statement that the copies as required under the provision have been delivered to the opposite party. The Hon’ble Apex Court in Shiv Kumar Chadha and Ors. Vs. Municipal Corporation of Delhi

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and Ors.; (1993) 3 SCC 161, while reiterating the mandate of recording reasons before granting an ex parte interim relief, observed as under :

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“34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "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". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise

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[CMA-675/2023]

either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order."

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The Court further held as under :

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"If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all.”

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One more aspect which is to be noted is that in the application under Order XXXIX Rules 1 & 2, CPC as preferred by the plaintiff, the prayer for restraining the defendant from excavating the mine in question was not even made by the plaintiff. But the Court below has proceeded on to grant the same relief also without even being prayed for. The said exercise by the Court below, that too at the ad-interim stage, is, in the opinion of this Court, clearly in excess of jurisdiction.

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In view of the above analysis and in view of the ratio as laid down by the Hon’ble Apex Court in Shiv Kumar Chadha (supra) and in view of the specific provisions of Order XXXIX Rule 3, CPC, the present misc. appeal is allowed . The order impugned is hereby set aside. As submitted on record, the reply to the temporary injunction application has already been filed by the defendant therefore, the Court below is directed to hear and

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(7 of 7) [CMA-675/2023]

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[2023/RJJD/013417]

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decide the said application itself within a period of 15 days from the date of receipt of the present order. It is made clear that if any adjournment is sought by the defendant-appellant, the Court would be at liberty to pass appropriate orders on the stay petition. 13. Stay petition also stands disposed of.

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(REKHA BORANA),J

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Vij/-

Ishwar Chand Jangid v. Manoj Kumar Sharma

Case brief

What is this about?

What did the court decide?

Ishwar Chand Jangid v. Manoj Kumar Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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