GOPAL AHUJA Vs. SANMAN DISTRIBUTORS PRIVATE LIMITED BANGALORE

JUDGEMENT

(1.) petitioners are defendants 1 and 2 in the suit o.s. 10513/93. The first respondent herein as plaintiff filed that suit against the petitioners and 5 others for declaration that they cannot project themselves as directors of the plaintiff company and also for permanent injunction restraining the defendants 1 to 7 either by themselves or through their agents, officials, workmen etc., representing themselves as directors of the company and not to interfere with the affairs of the plaintiff company. The plaintiff filed i. As. I & ii under order 39, rules 1 & 2, c p.c. the learned judge ordered summons to defendants 1 to 7 and restrained defendants from interfering with the management and affairs of the plaintiff-company and representing or acting as directors of the company till the disposal of i. As. I & ii. It is this ex-parte order of temporary injunction that is under challenge in this petition.

(2.) it is submitted by the learned counsel for the petitioners that the petitioners have not yet entered appearance in the suit. It is contended that it is obligatory on the part of the court, before granting interim injunction, to record reasons for its opinion that the object of granting injunction would be defeated by delay. In support of the contention the learned counsel cited a decision of the Supreme Court in shivakumar chadha v municipal corporation of Delhi. That was a case where a direction was issued on an application for interim injunction filed in the suit against an order of demolition/stop all unauthorised construction under the Delhi municipal Corporation Act. The Supreme Court held that the requirement for recording reasons for grant of an ex-parte injunction cannot be held to be mere formality. The requirement of serving notice is not to take any party by surprise. Proyiso to Rule 3 of order 39, C.P.C. has been inserted by the amending act of 1976. Order 39, Rule 3, provides that the court shall in all cases (except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction) direct notice of the application to be given to the opposite party. The court has to weigh the consequences of an ex-parte order and if it comes to the conclusion not granting an ex-parte order without service of notice would result in serious consequence to the party seeking ex-parte order then the court has to assign reasons for non-issuing of notice to the other side. Only in exceptional cases where the court finds for very good reasons which it would be advisable for the court to record its reasons it would be justified in passing interim ex-parte order of grave nature. The court should not act casually in granting ex-parte injunction. There are several statutes which require the authority to record reasons before exercising the power under the statute.

(3.) this court in mis. Industrial credit and development syndicate v b. Suryanarayana bhat, held that non-compliance of the mandatory Provisions contained in Rule 3 of order 39 is a very grave error.