Law Web: Leading judgment on grant of status quo or exparte injunction

All that we have said above is sufficient to dispose of the petition. But before parting with the judgment, we would like to deal with the manner in which learned Civil Judge, Junior Division passed the order directing parties to the suit to maintain status quo without proper verification of plaintiffs' right when he found that no prima facie case was made out. This was in flagrant violation of the mandate of Rule 3 of Order XXXIX of the Code of Civil Procedure. We are also told at the Bar in the course of hearing of this petition that the learned Judge is in the habit of passing such orders granting ad interim injunctions in number of suits, even though prlma facie case is not made out. It has come to our notice that in many cases subordinate Courts are granting ad interim reliefs without following the mandate of Rule 3 of Order XXXIX of Civil Procedure, Code. Only under exceptional circumstances ex parte stay order or interim relief is required to be granted by recording reasons. But recording of reasons should not be an empty formality, such as by mentioning that the record is seen and the plaintiff establishes prima facie case. The Courts should bear in mind the following principles enunciated in the case of Morgan Stanley Mutual Fund v. Kartlck Das, reported in (1994) 4 SCC 255 : 1994 AIR SCW 2801.

"36. As a Principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are :

a) whether irreparable or serious mischief will ensue to the plaintiff.

b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve

c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.

d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction.

e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

f) Even if granted, the ex parte injunction would be for a limited period of time.

g) General principles like prima facie, balance of convenience and irreparable loss would also be considered by the Court."

Our High Court in Sopan Maruti Thopte v. Pune Municipal Corporation, was dealing with a case relating removal of unauthorised construction where an injunction had been granted in favour of person who has raised unauthorised construction and ordered that passing of interim order indiscriminately and without reasons apparent and due application of mind, which has effect of allowing plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Court's prestige and clearly undermines the Rule of law. The result is that implementation of law suffers.

In our view, the need to see that a prima facie case is made out, before a Court grants ad interim injunction, cannot but be over emphasised. Prima facie case should be such that it should appear on record that there is a bona fide contest between the parties and serious question is required to be tried. If the plaintiff has no right, title or interest in the property, normally there is no question of granting equitable relief in his favour. Such ex parte orders have far reaching effect, as such a condition has been imposed that the Court must record reasons before passing such order.

It should be borne in mind before issuance of an injunction that it is a discretionary and equitable relief. It is not mandatory that for mere asking such relief should be given. It is not charity at the cost of public. However, procedure established by law has to be followed. That the violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunction which have the effect of continuing such violation.

Bombay High Court

Nagorao And Ors. vs The Nagpur Improvement Trust And ... on 1 March, 2001

Bench: J Patel, P Brahme

Citation:AIR 2001 Bombay, 402

1. Rule, By consent of learned counsel for the parties, heard forthwith.

2. The petitioners have applied for regu-larisatlon of their lay out and, construction therein by plot holders in pursuance of the scheme advertised by the respondent N.I.T. as per the Government resolution dated 3-3-1987. The respondent N.I.T. has started accepting the payment for regularisation from 12-2-2001. However, in the mean time the respondent No. 1 has issued a notice of 28 days on 8-2-2001 for removal of unauthorised construction. In spite of that notice of 28 days as respondent No, 1 started demolition from 14-2-2001 the said action of respondent No. 1 is challenged in this petition,

3. Learned counsel for the respondent No. 1 contended that no work of demolition of the construction of petitioners was actually commenced. The respondent No. 1, however, has started the demolition of the work which was in progress after the date of issuance of the impugned notice.

4. Petitioners have filed an undertaking that the petitioners' lay out falls in 572 lay outs scheme, notified by the State Government. That, the N.I.T. has already envisaged a regularisation scheme on 12-2-2001. The petitioners have already applied for regularisation of lay out. Till the said regularisation is decided by the N.I.T., the petitioners shall not make any further constructions in the layout.' ;

5. The learned counsel for the respondent No. 1 brought to our notice that the petitioner No. 2 has filed a civil suit in respect of the same subject, matter and has obtained ex parte injunction. While granting an ad interim injunction, the learned 2nd Joint Civil Judge. Junior division (Shri N. M. Hrale) has observed that "I am of the opinion that though plaintiff has not made out prima facie case for grant of injunction as claimed, but they have made prima facie case at this stage for grant of status quo order in their favour." On this reasoning the learned Judge passed the order directing the parties to maintain status-quo in respect of the said property. It is very strange that the learned Judge has passed an order granting status quo even though he was of the opinion that plaintiff has not made out prima facie case for granting injunction. We are told that the learned Judge has passed such orders in number of matters. We record that prima facie the learned Judge was not right in even granting the order of maintaining status quo when he was satisfied that no prima facie case was made out by the plaintiffs.

6. The learned counsel for the petitioners undertakes to withdraw the Civil Suit filed by one of the petitioners (i.e. petitioner No. 2), so also the Misc. Civil Claims pending before the 9th Additional District Judge, Nagpur being No. 149/2001 and 150/2001. The undertaking is accepted.

7. We therefore, dispose of the petition with a direction to respondent No. 1 not to take action of demolition under the impugned notices, until the decision in the matter of regularlsation of the lay out of the petitioners in the matter is taken. We also direct that petitioners shall not make any further construction in the lay out, in terms of the undertaking given by the petitioners. We make it clear that, in case the petitioners are not entitled for regularisatlon of the unauthorised construct, the respondent No. 1 will be at liberty to take action in accordance with the law and the notices issued.

8. All that we have said above is sufficient to dispose of the petition. But before parting with the judgment, we would like to deal with the manner in which learned Civil Judge, Junior Division passed the order directing parties to the suit to maintain status quo without proper verification of plaintiffs' right when he found that no prima facie case was made out. This was in flagrant violation of the mandate of Rule 3 of Order XXXIX of the Code of Civil Procedure. We are also told at the Bar in the course of hearing of this petition that the learned Judge is in the habit of passing such orders granting ad interim injunctions in number of suits, even though prlma facie case is not made out. It has come to our notice that in many cases subordinate Courts are granting ad interim reliefs without following the mandate of Rule 3 of Order XXXIX of Civil Procedure, Code. Only under exceptional circumstances ex parte stay order or interim relief is required to be granted by recording reasons. But recording of reasons should not be an empty formality, such as by mentioning that the record is seen and the plaintiff establishes prima facie case. The Courts should bear in mind the following principles enunciated in the case of Morgan Stanley Mutual Fund v. Kartlck Das, reported in (1994) 4 SCC 255 : 1994 AIR SCW 2801.