MUKTAKESHI DAWN Vs. HARIPADA MAZUMDAR

JUDGEMENT

(1.) The impugned order of ad-interim ex-part injunction has been assailed by Mr. Roy Chowdhury, the learned Counsel for the appellants, on more grounds than one, but none appears to be of that substance to warrant our intervention in this appeal.

(2.) Mr. Roy Choudhury has firstly submitted that under the provisions of Rule 3 of Order 39 of the Code of Civil Procedure, as amended by the Amendment Act of 1976, the Court can grant an Injunction ex-part before serving notice on the opposite party only when it is satisfied that the object of granting such injection ex-part the court "shall record the reasons for its opinion" that the object of granting injunction would be defeated by such delay. Mr. Roy Chowdhury has accordingly urged that the impugned or deer of ex-part injunction is bad as no such opinion ort any reason therefore has been recorded by the trial Judge. It is true that the relevant Proviso to Rule 3, as inserted by the Amendment Act of 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gurga Gobind Mundul (1867 - 11 M.I.A. 345 at 368), operate as a check against a to easy granting of ex-part injunction and may inspire confidence and disarm objection. And secondly, since an appeal lies against such ex-0part order of injunction, such record of reasons would go a very long was to help the Appellate Court to ascertain as to whether the discretion granted under the Rule or grant ex-part injunction has been properly exercised. But even then, we are inclined to think that the mandate in the Proviso to Rule 3 to record reasons is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons, if there are materials on record to show that here were good reasons to pass an ex-prate injunction order, the order caftan not be set at naught solely on the ground that the court, while making the order, did not record the reasons for proceeding ex-prate.

(3.) Reference in this connection may be made to Rule 27(2) of Order 41 of the Code, which requires that the appellate Court, while allowing additional evidence to be adduced, "shall record the reason for its admission". But in Seth Biradh Mal v. Sethani Prabhabati (AIR 1939 Privy Council, 152 at 154), the Privy Council approved the admission of evidence at the appellate stave even though the Judicial Commissioner, while admitting the evidence in appeal, did not record his reasons there for as required by this Rule. And the point now appears to have been clinched by the five-Judge Bench Judgment of the Supreme Court in K. venkataramiah v. Seetharame Readdy (AIR 1963 SC 1526), where Das Gupta, J., speaking for the Court, ruled (at 1529) that the provision-requiring recording of reasons in Rule 27(2) is not mandatory and the failure to do so would not vitiate reception of evidence if such reception were otherwise justified under the Rules. We have no doubt that the ratio in K. Venkataramiah (supra) would go the full length to fortify our view that the provision relating to recording of reasons for granting ex-prate injunction, as required by Rule 3 of Order 39 of the Code, though couched in imperative form, is not mandatory in substance and if we overturn an otherwise justifiable ex-prate order of injunction solely on the ground of omission to record reasons, we would be giving undue preference to more form over real substance. We accordingly reject the contention of Mr. Roy Chowdhury on this score.