N.A. HARIS Vs. RAJIV HEGDE

JUDGEMENT

(1.) This writ petition is filed challenging the order passed by the trial Court declining to grant ad interim order of injunction and ordering emergent notice returnable nearly after a month i.e., 24-5-2012. It is submitted at the time of arguments that the defendant has already entered appearance, filed the statement of objections to the I.A. However, the application for temporary injunction is not taken up for consideration and no orders are passed.

(2.) Order XXXIX Rule 1 and 2 provides for grant of an order of temporary injunction if the conditions stipulated therein are satisfied. A temporary injunction is of two types. One, granted without finally disposing of the application for temporary injunction to operate immediately till the disposal of the said application. Two, granted while finally disposing of the main application generally till the disposal of the suit. The former is generally called ad-interim injunction. The latter is generally called temporary injunction. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved. It is only when a claim is made in the suit which, if established, would entitle the plaintiff to relief by way of injunction. That interim relief could be granted by way of temporary injunction, so that relief in the suit might not be rendered infructuous.

(3.) Order XXXIX Rule 3 provides that the Court shall, in all cases, before granting an injunction, direct notice of the application to be given to the opposite party. It is a rule. However, the said provision carves out an exception, i.e., where it appears that the object of granting the injunction would be defeated by the delay, then the Court is vested with the power to grant an ex-parte ad interim injunction. The proviso to Rule 3 provides the conditions to be fulfilled while granting such ex-parte injunction. One such condition is, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, i.e., by issuing notice. Therefore, if there is no immediate threat, a notice should be issued. The requirement of giving reasons for the opinion of the Court that the object of granting the injunction would be defeated by delay, as laid down in the proviso, is mandatory. If it is held directory then the introduction of the proviso by the Parliament shall be a futile exercise and the proviso to Rule 3 will be a surplusage for all practical purposes. Therefore, the Court must record its reasons in writing for granting an ex-parte injunction.