MUKTAKESI DAWN Vs. HARIPADA MAZUMDAR

JUDGEMENT

(1.) The impugned order of ad interim ex parte 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 Chowdhury has firstly submitted that under the provisions of R.3 of O.39 of the Civil P.C. as amended by the Amendment Act of 1976, the Court can grant an injunction ex parte before serving notice on the opposite party only when it is satisfied that the object of granting injunction would be defeated by the delay in serving such notice and, while granting such injunction ex parte, 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 order of ex parte injunction is bad as no such opinion or any reason therefor has been recorded by the trial Judge. It is true that the relevant Proviso to R.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 Gunga Gobind Mundul (1867) 11 Moo Ind App 345 at 368, operate as a check against a too easy granting of ex parte injunction and may inspire confidence and disarm objection. And secondly, since an appeal lies against such ex parte order of injunction, such record of reasons would go a very long way to help the appellate Court to ascertain as to whether the discretion granted under the Rule to grant ex parte injunction has been properly exercised. But even then, we are inclined to think that the mandate in the Proviso to R.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 there were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court, while making the order, did not record the reasons for proceeding ex parte.

(3.) Reference in this connection may be made to R.27(2) of O.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 Prabhabhati, AIR 1939 PC 152 at 154, the Privy Council approved the admission of evidence at the appellate stage even though the Judicial Commissioner, while admitting the evidence in appeal, did not record his reasons therefor as required by this Rule. And the point now appears to have been clinched by the five-Judge Bench Judgement of the Supreme Court in K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526, where Das Gupta, J., speaking for the Court, ruled (at 1529) that the provision requiring recording of reasons in R.27(2) is not mandatory and the failure to do so would not vitiate reception of evidence if such reception was 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 parte injunction, as required by R.3 of O.39 of the Code, though couched in imperative form, is not mandatory in substance and if we overturn an otherwise justifiable ex parte order of injunction solely on the ground of omission to record reasons, we would be giving undue preference to mere form over real substance. We accordingly reject the contention of Mr. Roy Chodhury on this score.