ACHAMMA Vs. DOMINIC PAUL

JUDGEMENT

(1.) The second defendant in a suit for injunction is the petitioner in the Civil Revision Petition and the 3rd defendant in the same suit is the petitioner in the Original Petition under Art.227 of the Constitution of India. The suit O.S. No. 125 of 1980 was filed before the Moovattupuzha Munsiff Court on 16-4-1980 and an interim injunction was sought in that suit to restrain the defendants from tampering with, altering or destroying the road described as plaint schedule item 3 or from obstructing the use of the road by the plaintiff or his workmen or restraining the movement of vehicles at the instance of the plaintiff. On this application which was also moved on 16-4-1980 the court passed an interim order on the same day in the following terms:

(2.) The learned counsel for the petitioners in these cases calls our attention to the provisions in O.39 of the Code of Civil Procedure which call for a procedure different from that resorted to by the learned Munsiff in this case. There has been a marked departure in regard to the provisions for grant of injunction in the Code of Civil Procedure as amended in 1976 from what it was prior to the amendment, and according to counsel the court below acted in violation of the provisions as in force now. It is for this reason that the learned counsel contends that the order is a nullity. If so, according to him, he is not obliged to file an appeal. That, according to learned counsel explains the filing of the Revision and also the filing of the petition under Art.227 of the Constitution.

(3.) Under the Code as it stood prior to the amendment in 1976 R.3 of 0.39 provided for grant of an injunction after notice of the application for injunction was given to the opposite party with the exception that in case it appears that the object of grant of injunction would be defeated by the delay, injunction could be ordered even before the issue of notice. That provision enabled the courts to issue ex parte orders. Even under that rule the grant of such interim orders ex parte should be taken to be the exception and not the rule, for, in cases where it would be practicable to give notice to the opposite party before grant of an order of injunction that should be done. It has been our experience that subordinate courts have not taken this requirement as seriously as they should in quite a good number of cases. We had occasion earlier to alert courts to the need of restraint of exercise under 0.39 in the matter of grant of interim injunction and particularly in avoiding the grant of ex parte orders where without serious prejudice to parties that could be done after notice.