AKBAR SEKH Vs. MOUSUMI FACTORY AGENCY

JUDGEMENT

(1.) This appeal is filed impugning the order passed by the learned Single Judge dated 19th August, 2004. Learned counsel appearing for the appellant has contended that the learned Single Judge has not followed the mandate of Order 39 Rule 3. In support of his contention that the appeal is maintainable learned counsel for the appellant has cited AIR 2000 SC 3032 and has contended that the appellant has got a choice either to file an appeal or to take recourse to file an application for vacation of the stay before the learned Single Judge, therefore, his appeal is maintainable. The main thrust of the arguments of the learned counsel for the appellant is that no reason has been given for coming to a prima facie conclusion for grant of ex-parte stay before learned Single Judge. In support of his contention, learned counsel for the appellant has cited (1993) 3 SCC 161.

(2.) We have perused the order passed by the learned Single Judge. There cannot be any dispute that there is a power to grant ex-parte injunction if the Court reaches a prima facie conclusion that non-grant of an ex-parte injunction would frustrate the relief sought by the plaintiff. The ex-parte injunction has to be granted taking into consideration the plaint, the documents and other material which are filed by the plaintiff. We have perused the order passed by the learned Single Judge. The learned Single Judge has stated in the impugned order as under:-

(3.) Once the Court has recorded its prima facie satisfaction, it is presumed that the Court has perused through all the material on record as well as the plaint and after satisfying prima facie passed an ex-parte injunction order. Therefore, there is no inherent lac of jurisdiction on the part of the Court to grant ex-parte injunction order. The ex-parte injunction order was passed on 19th August, 2004 and the next date was fixed as 27th September, 2004. On 27th September, 2004 when the appellant appeared before the Court, he did not move an application for vacation of stay, did not file any reply to the said application, did not file the written statement. If the appellant was so much aggrieved by the impugned order, at the first hearing itself, he had to file the reply to the said application and the written statement to the main suit. As a matter of fact, it was argued before us by the learned counsel for the appellant that appellant sought time to file the reply. When the appellant himself is not interested in getting the order vacated, to argue that on the basis of the plaint and the material placed on record, no reason has been given in the impugned order, is devoid of any merit. Therefore, the authority sited by the learned counsel for the appellant that is (1993) 3 SCC 161 is also not applicable in this case. The appellant sought an adjournment on 27.9.2004 and thus cannot contend that the application for interim injunction ought to have been decided within thirty days in compliance with Order 39 Rule 3A of Code of Civil Procedure. There is no merit in this case. Dismissed.