RAMESHWAR DASS Vs. BRIJ BHUSHAN

JUDGEMENT

(1.) ORDER :- In this extraordinary case, the trial court has been persuaded to pass and the lower appellate court has been persuaded to uphold an order made in the gross violation of the rules of fair play and justice which must inform every judicial process in our republic. The following facts are not in dispute : In a suit instituted by the petitioner-plaintiff, an application for interim relief was made on March 17, 1987 under O.39, Rr.1 and 2 read with S.151, Civil P.C. The trial court issued a show cause notice to the respondent defendant returnable on March 30, 1987 and meanwhile passed an order granting an ex parte ad interim relief on March 17/19, 1987. On March 20, 1987, respondents 1 to 3 moved an application before the trial court purporting to be an application under O.39, R.4 read with S.151 Civil P.C. alleging that the petitioner had obtained the ad interim relief on the basis of a "false and manufactured story which is altogether contrary to the existing facts" and praying that the ad interim injunction be vacated in light of the "false and misleading statements given by the plaintiff". Neither a copy nor a notice of the institution of the said application was served upon the petitioner or his counsel. Respondent 3, who is an advocate ordinarily practicing in the trial court, appeared before the learned trial Judge on the same day, that is, March 20, 1987, and was afforded an ex parte hearing in support of the application. No notice of the application was ordered to issue to the petitioner even thereafter but the order was reserved. The order was passed seven days later on March 27, 1987. The ex parte ad interim relief granted in favour of the petitioner on March 17/19, 1987 was thereby vacated. In the appeal carried against the said order; a ground was specifically taken that the trial court had passed the order ex parte without notice to the petitioner and that the order was, therefore, liable to be set aside. The appeal was dismissed, however, without even touching that point.

(2.) Against the background aforesaid, it is clear that the entire proceeding culminating into the vacation of a judicial order may be an ex parte ad interim order was conducted and decided behind the back of the person in whose favour such order was made. To say the least, the procedure adopted accordingly is wholly against the elementary principles of fair play and justice and no person instructed in law could ever have followed the same in the course of a judicial proceeding. The order is, therefore, vitiated by a jurisdictional error.

(3.) The learned counsel for the respondents tried to sustain the order on the ground that an express power is vested in the court under O.39, R.4 to discharge or vary or set aside any order of injunction on an application made thereto by any party dissatisfied with such order and if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the court has no option but to vacate the injunction unless, for reasons to be recorded, it Considers that it is not necessary so to do in the interest of justice and that, therefore, on the facts and in the circumstances of the case, the trial court was within its powers to vacate the ad interim relief granted ex parte without issuing a notice to the petitioner. The argument has been stated merely to be rejected. The main part of O.39, R.4 vests the Court with a discretionary power to discharge or vary or set aside any order of injunction upon being moved in that behalf by any aggrieved party. The discretion accordingly conferred has to be exercised reasonably and in a judicial manner and in conformity with the principles of fair play and justice. These requirements would be satisfied if, and only if, the party likely to be affected by the exercise of such discretion is, inter alia, given a reasonable opportunity of being heard. The same requirement is implicit also when the Court is called upon to vacate an ex parte injunction in compliance of the duty cast upon it under the first proviso to O.39, R.4 in a case where a party is alleged to have knowingly made a false or misleading statement in relation to a material particular in the application for temporary injunction or in any affidavit supporting such application. In fact, it is inconceivable how the power so conferred can be reasonably, exercised by any Court without affording a reasonable opportunity of correcting and controverting the allegations of such nature to the party who has obtained the ex parte injunction and without determining the correctness of such allegations on a just appraisal of the materials placed before it by both the parties. The rules of procedure to be followed in the Courts are essentially based on the well recognized rules of fair play and justice and it is impossible to believe that Parliament could have intended to vest the court with the power to vacate an ex parte injunction on the ground of a false or misleading statement in relation to a material particular having been knowingly made by the party obtaining the same without even hearing such party.