Holding

An ex parte injunction order is deemed to contain the proviso requirements by implication, non‑compliance by the applicant bars him from enjoying the order, failure to dispose within thirty days renders the order final for appeal purposes, and the High Court should not have entertained a revision petition where alternative remedies existed.

Summary

The plaintiff filed a suit for permanent injunction and simultaneously obtained an ex parte temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The trial court’s order required the plaintiff to give notice and deliver documents to the opposite party as mandated by the proviso to Rule 3, but the plaintiff failed to comply. The respondents filed a revision petition under Article 227, and the High Court set aside the injunction, directing the trial court to hear the matter on merits. The Supreme Court held that an order under Rule 3 is deemed to contain the proviso requirements by implication and that a party who does not fulfil those duties cannot enjoy the benefits of the order. It further ruled that if a court does not finally dispose of an ex parte injunction within thirty days, the injunction becomes a final order on the expiry of that period, giving the aggrieved party a right of appeal. The Court also observed that the High Court should not have entertained a revision petition when statutory remedies of vacating the order or filing an appeal were available. Consequently, the appeal was dismissed and the trial court was directed to pass final orders on the interlocutory application.

Issues considered

Whether an order passed under Rule 3 of Order 39 is deemed to contain the proviso requirements of notice and delivery of documents by implication.
Whether non‑compliance by the applicant with the duties prescribed in the proviso defeats his right to enjoy the injunction.
Whether failure to dispose of an ex parte injunction within thirty days under Rule 3A makes the injunction order a final order, thereby conferring a right of appeal.
Whether a High Court can entertain a revision petition under Article 227 when alternative statutory remedies of vacating the order or filing an appeal are available.

Legislation cited

Code of Civil Procedure, 1908s. Order 39 Rule 1, s. Order 39 Rule 2, s. Order 39 Rule 3, s. Order 39 Rule 3A, s. Order 43 Rule 1, s. Section 104
Constitution of Indias. Article 227

Subjects

ex parte injunctionOrder 39Rule 3Rule 3Atemporary injunctionappeal rightsrevision petitionArticle 227procedural complianceCivil Procedure

Judgment

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
Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary F
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.
G
The High Court set aside the injunction order observing that the order

- 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

- 303
H
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.

Disposing of the appeal, the Court
B
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 should necessarily be the sole sufferer.
H [311-D-E)
A. VENKATASUBBIAH NAIDU v. S. CHELLAPJ?AN 305

2.3. It is the acknowledged position of law that no party can be forced A
to suffer for the inaction of the court or its omissions to act according to
the procedure established by Jaw. Under the normal circumstances the
aggrieved party can prefer an appeal only against an order passed under
Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule ·
1 of the Code. He cannot approach the appellate or revisional court during
the pendency of the application for grant or vacation of temporary injunction. B
In such circumstances the party who does not get justice due to the inaction
of the court in followin~ the mandate of law must have a remedy. So in a case
where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved
party, shall be entitled to the right of appeal notwithstanding the pendency
of the application for grant or vacation of a temporary injunction, against the C
order remaining in force. In such appeal, if preferred, the appellate court
shall be obliged to entertain the appeal and further to take note of the omission
of the subordinate court in complying with the provisions of Rule 3A. In
appropriate cases the appellate court, apart from granting or vacating or
modifying the order of injunction, may suggest suitable action against the
erring judicial officer, including recommendation to take steps for making D
adverse entry in his ACRs. Failure to decide the application or vacate the
ex-parte temporary injunction shall, for the purposes of the appeal, be deemed
to be the final order passed on the application for temporary injunction, on
the date of expiry of thirty days mentioned in the Rule. [311-F-H; 312-A-C)

3. With regard to the question whether the High Court should ha.ve E
entertained the petition under Article 227 of the Constitution when the party
had two other alternative remedies, though no hurdle can be put against the ·
exercise of the constitutional powers of the High Court it is a well recognized
principle which gained judicial recognition that the High Court should direct
the party_ to avail himself of such remedies one or the other before he resorts F
to a constitutional remedy. [312-D)

4. As directed by the High Court the trial court should pass final orders
on the interlocutory application filed by the plaintiff on merits and in
accordance with law. Till the orders of the trial court, status-quo as it prevailed
immediately preceding the institution of the suit would be maintained by the G
parties. [312-FJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5102 of
2()()(),

..... From the Judgment and Order dated 30.9.99 of the Madras High Court H
306 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A in C.R.P. No. 2251of1999.
S. Sivasubramaniam, M. Mohan and R. Nedumaran for the Appellant.

V. Selvraj for Mis. Arputham, Aruna and Co. for the Respondent Nos.
1-5.
B
M.A. Chinnaswamy for the Respondent Nos. 7-9.

-
The Judgment of the Court was delivered by

THOMAS, J. Leave granted.
c
When a plaintiff mshed to the civil court for an ex-parte interim order
of injunction against some of the defendants and obtained it, those defendants
rushed to the High Court to get that order quashed .. Both parties succeeded
in their respective endeavour and now both of them accuse each other for
D the course adopted by the other. This appeal is by special leave at the
instance of the plaintiff.

The subject matter of the litigation is a property bearing Door No.· 177
to 182 on the Big Street at Triplicane in Madras (now Chennai). At this stage
and in this appeal it is unnecessary to narrate the facts pleaded by the
E plaintiff in the plaint nor by the contesting first defendant in answer thereto
regarding the right to the suit property. Suffice it to say that plaintiff claims
to be a lessee under one S. Alagu (who is arrayed as 6th defendant in the
suit) in respect of the property and on that strength he claimed to be in
possession of the property. He alleged that the defendants l to 5 have been
threatening to dispossess him.
F
Appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent
injunction restraining defendant Nos. I to 5 from dispossessing him. Along
with the institution of the suit he moved an application under Order 39 Rule
l and 2 of the Code of Civil Procedure (for short 'the Code') "to pass an ad
G interim injunction restraining respondents I to 5 or their men or agents, or
their representatives or any person claiming through them or under them from
evicting the petitioner from the suit property other than by due process of
law and to pass such further or other order or orders."

On 29.6.1999 the Assistant Judge of the City Civil Court, Chennai
H passed the following ex-parte order on the said application:
A. VENKATASUBBIAH NAIDU v. S. CHELLAPPAN [THOMAS, J.] 307
... "Heard. Documents perused. Rental receipt Document I I to Document A
47 proves that the petitioner is the statutory tenant and prima facie
possession of the suit property. Though the property was leased out
by R.6 on the basis of mortgage document 3, the petition is now in
continuous possession of the property as tenant. Hence the balance
of convenience is in favour of the petitioner. In the interest of justice,
it appears that R. l to R.5 are restrained from evicting the petitioner B
from the suit property, except under due process of law. Notice by
25.8.99. Ad interim injunction till then. Order 39 Rule 3 to be complied
with."

The first respondent, on behalf of himself and respondent Nos. 2 to 5,
filed a revision petition invoking Article 227 of the Constitution before the
c
High Court of Madras alleging that they purchased the property from the
owners thereof as per different sale documents executed on 15.3.1996, and
they were in possession and enjoyment of the property. They further alleged
that one Ranganathan, MLA and one Hithayatullah together expressed a wish
to purchase the property from the respondents, but it was not agreed to and D
then those two persons exerted threat and pressure on them to capitulate to
their demand. As they did not yield to such threats a suit was filed in I 998

- by some parties who are now supporting the present plaintiff. The respondents
further alleged that the said suit was filed at the instance and instigation of
those two named persons. When they failed to get any relief therefrom
another suit was caused to be filed through one M. Devasinghamani on the E
strength of some concocted documents. As no relief was obtained in that suit
,. also the present suit, which is the third one in the series, has been filed at
the behest of the above named persons, according to the respondents.

Learned Single Judge of the High Court of Madras who disposed.ofthe
revision made the observation that the trial court ought not have granted an
F
order of injunction at the first stage itself which could operate beyond thirty
days as the court had then no occasion to know of what the affected party
has to say about it. Such a course is impermissible under Order 39 Rule 3A
of the Code, according to the learned single judge. He, therefore, set aside
the injunction order "for the clear transgression of the provisions of law" and G
noted that this is the third suit filed in reference to the suit property and
hence deprecated the grant of ex-parte injunction without notice. Though
learned single judge further declined to go into the other allegations, he has
chosen to make the following observations also:
..> • "However, primafacie, I am satisfied that these materials are relevant H
i-

308 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. 'I-r

A for consideration before granting ad interim injunction. As per the ....r
t
plaint and affidavit averments admit that the first respondent is
occupying a vacant portion of i670 sq. ft. and running paper business
and charcoal. But there is no document to show that the first
respondent is actually in possession and running such a business
except the lease deed. Hence the ex-parte order is unsustainable. For
B all these reasons, I am Of the view that the order passed by the
learned Judge is liable to be set aside and it is accordingly set aside." I
I
After holding thus learned Single Judge directed the trial court to take
up the interlocutory application for injunction and pass orders on merits and
C in accordance with Jaw expeditiously.

Sri Sivasubramaniam, learned Senior Counsel contended that the High
Court should not have entertained a petition under Article 227 of the
Constitution when the respondent had two remedies statutorily available to
him. First is that the respondent could have approached the trial court for
D vacating, if not for any modification, of the interim ex-parte order passed.
Second is that an appeal could have been preferred by him against the said
order. It is open to respondent to opt either of the two remedies, contended
the Senior Counsel.

Section I 04 of the Code says that
E "an appeal shall lie from the following orders, and save as otherwise
expressly provided in.the body of this Code or by any law for the time
being in force, from no other orders:

(i) any order made under rules from which an appeal is expressly
allowed by rules."
F
Order 43 Rule 1 says that:

"An appeal shall lie from the following orders under the provisions
of Section l 04 namely;

G (r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule I 0 of Order
39."

Order 39 Rule l says thus:

I. "Where in any suit it is proved by affidavit or otherwise -

H (a) that any•property in dispute in a suit is in danger of being wasted,

t.
r
A. VENKATASl}BBIAH NAIDU v. S. CHELLAPPAN [THOMAS, J.] 309

damaged or alienated by any party to the suit, or wrongfully sold in A
execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of
his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise B
cause injury to the plaintiff in relation to any property in dispute in
the suit, the Court may by order grant a temporary injunction to
restrain such act, or make such other order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or
disposition of the property or disposition of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property in dispute in C
the suit as the Court thinks fit, until the disposal of the suit or until
further orders."

It cannot be contended that the power to pass interim ex parte orders
of injunction does not emanate from the said Rule. In fact, the said rule is the
repository of the power to grant orders of temporary injunction with or D
without notice, interim or temporary, or till further orders or till the disposal
of the suit. Hence, any order passed in exercise of the aforesaid powers in
Rule I would be applicable as indicated in Order 43 Rule I of the Code. The
choice is for the party affected by the order either to move the appellate court
or to approach the same court which passed the ex parte order for any relief. E
Learned Senior Counsel for the respondents then contended that an
order granting injunction without complying with the requisites envisaged in
Rule 3 of Order 39 be void. Rule 3 reads thus:

"The Court shall in cases, except where it appears that the object of
granting the injunction would be defeated by the delay, before granting F
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 G
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- H
310 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

• A (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 (b) to file, 011 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."

What would be the position if a court which passed the order granting
interim ex parte injunction did not record reasons thereof or did not require
C .the applicant to perform the duties enumerated in clauses (a) & (b) of Rule
3 of Order 39. In our view such an Order can be deemed to contain such
requirements at least by implication even if they are not stated in so many
words. But if a party, in whose favour an order was passed ex parte, fails to
comply with the duties which he has to perform as required by the proviso
D quoted above, he 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 of it. 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
obeyed by the other party. A disobedient beneficiary of an order cannot be
E heard to complain against any disobedience alleged against another party.
Learned Single Judge stated that the trial court ought not to have
granted ex parte injunction beyond thirty days to be in force. The said
observation is based on the language contained in Order 39 Rule 3-A of the
Code which reads thus:
F
"Where an injunction has been granted without giving notice to the
opposite-party, the Court shall make an endeavour to finally dispose
of the application within thirty days from the date on which the
injunction was granted; and where it is unable so to do, it shall record
G its reasons for such inability."

The Rule does not say that the period of the injunction order should
be restricted by the Court to thirty days at the first instance, but the Court
should pass final order on it within thirty days from the day on which the
injunction was granted. Hence, the order does not ipso facto become illegal
H merely because it was not restricted to a period of thirty days or less.
A. VENKATASUBBIAH NAIDU v. S. CHELLAPPAN [THOMAS, J.] 311

Nonetheless, we have to consider the consequence, if any, on account
1
A
of the Court failin g to pass the final orders within thirty days as enjoined by
Rule 3-A.

The aforesaid Rule casts a three-pronged protection to the pahy against
whom the ex parte injunction order was passed. First is the leg(\l obligation
that the Court shall make an ep.deavour to finally dispose of the application B
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.

What would happen if a Court does not do either of the courses? We
c
have to bear in mind that in such a case the Court would have by-passed the
three protective humps which the legislature has provided for the safety of
the person against whom the order was passed without affording him an
Ci1portunity 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 D
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 the period of thirty days. Here also it is only
in very exceptional cases that the Court can by-pass such a rule in which
cases the legislature mandates on the court to have adequate reasons for E
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.

It is the acknowledged,position of law that no party can be forced to
suffer for the inaction of the court or its omissions to act according to the F
procedure established by law. Under the normal circumstances the aggrieved
party can prefer an appeal only against an order passed under Rules 1, 2, 2A,
4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He
cannot approach the appellate or revisional court during the pendency of the
application for grant or vacation of temporary injunction.
G
In such circumstances the party who does not get justice due to the
inaction of the court in following the mandate oflaw must have a remedy. So
_we are of the view that in a case where the mandate of Order 39 Rule 3A of
the Code is flouted, the aggrieved party, shall be entitled to the right of appeal
notwithstanding the pendency of the appli1,;ation for grant or vacation of a H
312 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A temporary injunction, against the order remaining in force. In such appeal, if .,
preferred, the appellate court shall be obliged to entertain the appeal and
further to talce note of the omission of the subordinate court in complying
with the provisions of Rule 3A. In appropriate cases the appellate court, apart
from granting or vacating or modifying the order of such injunction, may
B suggest suitable action against the erring judicial officer, including
recommendation to take steps for making adverse entry in his ACRs. Failure
to decide the application or vacate the ex-parte temporary injunction shall, for
the purposes of the appeal, be deemed to be the final order passed on the
application for temporary injunction, on the date of expiry of thirty days
mentioned in the Rule.
c Now what remains is the question whether the High Court should have
entertained the petition under Article 227 of the Constitution when the party
had two other alternative remedies. Though no hurdle can be put against the
exercise of the constitutional powers of the High Court it is a well recognized
principle which gained judicial recognition that the High Court should direct
D the party to avail himself of such remedies one or the other before he resorts
to a constitutional remedy. Learned single judge need not have entertained
the revision petition at all and the party affected by the interim ex parte order
should have been directed to resort to one of the other remedies. Be that as
it may, now it is idle to embark on that aspect as the High Court had chosen
E to entertain the revision petition.

In the light of the direction issued by the High Court that the trial court
should pass final orders on the interlocutory application filed by the plaintiff
on merits and in accordance with law, we may further add that till such orders
are passed by the trial court, status-quo as it prevailed immediately preceding
F the institution of the suit would be maintained by the parties.

This appeal is disposed of with the above observations and directions.

B.S. Appeal disposed of.