LexA. VENKATASUBBIAH NAIDU versus S. CHELLAPPAN AND ORS.
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A. VENKA TASUBBIAH NAIDU A v. S. CHELLAPPAN AND ORS. SEPTEMBER 19, 2000 [K.T. THOMAS AND R.P. SETHI, JJ.] B Code of Civil Procedure, I 908 : Order 39, Rules I, 2 and 3-Trial court granting interim ex parte • injunction order without recording reasons and requiring applicant to perform c duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction order deemed to contain such requirements by implication and the appellant should perform the dutie~. Order 39, Rule 3A-Section I04, Order 43, Rule I-Trial court failing to pass final orders within 30 days-Held, the injunction order is deemed to D be the final order on the date of expiry of 30 days and the aggrieved party is entitled to right of appeal. Section I 04, Order 43, Rule I-High Court entertaining revision petition - when there were alternate remedies-Whether correct-Held, High Court should have directed the parties to avail the alternate remedies and should E not have entertained the revision petition-Constitution of India-Article 227. Appellant-plaintiff filed a suit before the trial court for a decree of permanent injunction restraining the respondents from dispossessing him of the suit property. The appellant also moved an application under Order 39 F Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary injunction, which was granted by the trial court. The respondents filed a revision petition under article 227 of the constitution before the High Court alleging that the respondents were in possession and enjoyment of the property. The High Court set aside the injunction order observing that the order G - could come into operation beyond thirty days under Order 39 Rule 3A of the Code. The High Court directed the trial court to take up the interlocutory application for injunction and pass orders on merits. In appeal to this Court, the plaintiff contended that the respondents had H 303 - 304 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. A alternate remedies either by approaching the trial court for vacating the injunction order or filing an appeal against the order. The respondents contended that an injunction order without complying with the requisites envisaged in proviso to Rule 3 of Order 39 is void. B Disposing of the appeal, the Court HELD: 1. An order passed under Rule 3 of Order 39 of the Code of Civil Procedure, 1908, is deemed to contain the requirements laid down in proviso (a) and (b) of the Rule by implication even if they are not stated expressly.·But if a party, in whose favour an order was passed ex parte, fails C to comply with the duties which has to be performed as required by the proviso, then the party must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage ofit. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not D obeyed by the other party. (310-C-D) 2.1. Rule 3A under Order 39 casts a protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application E of injunction within the period of thirty days. Second is the legal obligation that if for any valid reasons the Court could not finally dispose of the . application within the aforesaid time the Court has to record the reasons thereof in writing. (311-B) 2.2. The Court would have by-passed the three protective humps which F the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. 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 by-pass the said protective measure. Second, is the statutory obligation cast on the Court to pass final orders on the application within G the period of thirty days. It is only in very exceptional cases that the Court could by-pass 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 shou
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