Morgan Stanley (supra) spelt out the guiding
principles in relation to the grant of an ad-interim injunction in such
areas of the functioning of the capital market and public issues of
the corporate sectors and whether certain 'venu restriction clauses'
would require to be evolved judiciously. The guiding principles were
that the ex-parte injunction could be granted only under the
exceptional circumstances. The factors which should weigh with
the Court in the grant of ex-parte injunction were-
(a) where irreparable or serious mischief will ensure 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 would 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 case, balance of
convenience and irreparable loss would also be considered by
the court.
15. In Sopan Thopte (supra) a Division Bench of this
Court noticed that in many cases subordinate Courts are granting
ad-interim reliefs without following the mandate of Rule 3 of Order
XXXIX of the C.P.C. 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 has been seen and
the plaintiff establishes prima facie case. The Courts should bear in
mind the foregoing principles enunciated in the case of Morgan14
Stanley Mutual Fund(supra). Their Lordships also observed that
in their view passing an interim order indiscriminately and without
apparent and due application of mind, which has the effect of
allowing the 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 while once
again emphasizing the need to see that the prima facie case is
made out before the Court grants an ad-interim injunction.
IN THE HIGH COURT OF BOMBAY AT GOA.
APPEAL FROM ORDER NO. 44 OF 2016.
SHRI NARCINVA DAMODAR NAIK,
Versus
SMT. RUKMA ABHIJIT SADEKAR,
PRONOUNCED ON : 18th July,2016.
Citation: 2016 SCC OnLine Bom 7009
Citation: 2016 SCC OnLine Bom 7009
3. Ms. Prachi Sawant, learned Advocate waives service of
notice on behalf the respondent no.1, Ms. Tanvi Ghanekar, learned
Advocate waives service of notice on behalf of the respondent
nos.3 and 4 and Shri P. Lotlikar, learned Advocate waives service of
notice on behalf of the respondent nos.6 and 7 in A.O. No. 44 of
2016. Shri A. Gomes Pereira, learned Advocate waives service of
notice on behalf of the Caveator in A.O. No.45 of 2016.
4. Shri S. G. Dessai, learned Senior Advocate came to be
heard on behalf of the appellants who submitted that in terms of
Order XXXIX Rule 3 of Civil Procedure Code ('C.P.C.' for short) no
ex-parte reliefs could have been granted as a matter of course.
He adverted to the reliefs claimed in the plaint filed at the instance
of the respondent no.1 and submitted that the properties referred
to therein which were a part of the Annexure-II belonged to the
parents who were living. The partnership and the company in
respect of whom the injunctory reliefs were sought were not made
parties to the plaint. The relief claimed in respect of which the
learned trial Judge secured the respondent no.1 with the relief of
injunction pertained to a Memorandum of Understanding dated
24/10/2014 which was in respect of the properties of the
partnership and the company and not the individual properties of
her parents i.e. the respondent nos.3 and 4. Besides the
Annexure-II related to the multiple properties unlike the plaint
which did not contain any averments on the various properties in
dispute or the right acquired by the plaintiff/respondent no.1. No5
cause of action was disclosed in the plaint and therefore the plaint
was liable for rejection in terms of order VII Rule 11 of C.P.C.
5. Shri S. G. Dessai, learned Senior Advocate for the
appellant also adverted to the Annexure-I and contended that no
right was spelt out in the plaint to the property contained therein.
The impugned order dated 07/07/2016 was served on them on
08/07/2016 and thereafter on account of the intervening holidays,
the appellant could apply for the certified copies on 11/07/2016
who had thereafter moved this Court with promptitude to assail the
impugned order. He relied in Morgan Stanley Mutual Fund v/s.
Kartick Das with Arvind Gupta v/s. Securities and Exchange
Board of India and others [Civil Appeal Nos.4584 and 4587 of
1994), Sopan Maruti Thopte and another v/s. Pune Municipal
Corporation and another and Shaikh Abdul Aziz and others
v/s. Bombay Municipal Corporation and others [Writ Petitions
no. 4765 to 4767 of 1995 and A.C. No. 477 of 1994] and GL Asia
Mauritius II Cayman Limited and orders v/s. Pinfold
Overseas Limited and another [Writ Petition No. 676 of 2010]
again to buttress his plea that no relief as granted could have been
issued in favour of the respondent no.1 by the Trial Court.
6. Shri S.G. Dessai, learned Senior Advocate for the6
appellants then adverted to the Memorandum of Understanding
entered into by the parties and submitted that the properties of the
respondent nos.4 and 5 were not a part of the Memorandum of
Understanding and yet the relief was granted in favour of the
respondent no.1. The Memorandum of Understanding was
executed on 24/10/2014 and yet the first notice came to be issued
at the instance of the respondent no.1 on 01/06/2015 and a legal
notice followed thereafter on 04/09/2015. There were no incidents
shown by the respondent no.1 to precipitate the suit and the
application for injunction. The appellant no.1 had executed a Gift
Deed of a plot of 610 sq.mts. of the larger properties in favour of
the respondent no.6 on 27/08/2015 and which was much prior to
the receipt of the legal notice dated 04/09/2015. There were no
changes in the circumstances even thereafter to precipitate the
suit and the relief of injunction. Besides the respondent no.1 did
not hold any interest in the partnership of M/s. N. D. Naik and
could not claim any relief.
7. Shri S. G. Dessai learned Senior Advocate for the
appellants submitted that the pleadings as carved out at
paragraphs No.29 to 34 were not at all relevant and did not
indicate in what way they were material to maintain the suit. The
respondent no.1 was not a partner of M/s. N.D.Naik. The7
Memorandum of Family Settlement dated 23/03/1994 was not at
all relevant to the case at hand and her presence therein though as
a minor at the relevant time was probably not to create any
problem in the future. He also adverted to the letters written by
the respondent no.1 to the District Registrar and the bank apart
from the e-mail to show the lack of bonafides of the respondent
no.1 and yet processing the suit against them. The learned trial
Judge was not at all justified in granting the ex-parte relief in
respect of the properties not belonging to the plaintiff. Besides no
reliefs could be granted without making the banks and other
financial institutions as the parties to the suit. The impugned
order was without any basis and liable to be set aside.
8. Shri V. A. Lawande, learned Advocate for the appellant
in his appeal opened his arguments that the appellant was a
Chartered Accountant who had no right to the properties nor any
interest therein and yet the plaintiff had claimed reliefs and which
were granted in her favour. The impugned order was therefore
arbitrary and perverse. The trial Court disclosed a total nonapplication
of mind while passing the impugned order which was
liable to be quashed and set aside. He relied on Vedant Fashions
Pvt. Ltd. V/s. Smt. Rajul Devi [Writ Petition Nos.33158/2014
and 33300/2014(IPR], Mr. R.K. Jain v/s. Sri P.G. Chacko [Writ8
Petition No. 16118/2013(GM-CPC)] and The Secretary and
Curator, Victoria Memorial Hall v/s. Howrah Ganatantrik
Nagrik Samity and others [(2010)3 SCC 732] and concluded his
arguments that no injunctory relief could be granted against the
professionals for the professional advise rendered by them. It was
apart from the fact that no averments were made against the
appellant in any way in the plaint and pressing for the reversal of
the order.
9. Shri S. M. Usgaonkar, learned Senior Advocate for the
respondent nos.3 and 4 in the Appeal from Order No.44 of 2016
substantially adopted the arguments of Shri S.G. Dessai, learned
Senior Advocate for the appellants and quantified his arguments
that the respondent no.1 had misled the Court and snatched the
ex-parte order. She had tried to mislead the Court knowing fully
well that her parents were living and thus the impugned order was
liable for a reversal. Shri P. Lotlikar, learned Advocate for the
respondent nos.6 and 7 submitted that no reliefs were claimed
against them in the suit and yet by granting the relief (a), they
were indirectly affected when they were otherwise not concerned
with the properties and the parties. The Gift Deed in their favour
was a part of the property from the annexure–II and the
respondent no.1 who had no interest in the Gift Deed could not9
also envelop the respondent nos.6 and 7 while seeking an all
encompassing order against the respondents. The trial Court had
to see if grounds were made out for the grant of temporary
injunction and when there were no findings on the prima facie
case, the balance of convenience and irreparable loss the discretion
exercised by the trial Court was arbitrary and fanciful justifying an
interference with the order.
10. Shri D. J. Pangam, learned Advocate for the respondent
nos.1 and 5 built up his case on the foundation of that laid by the
appellants and the respondent nos.3 and 4 to contend that it
conveyed that they were claiming exclusive ownership of all the
properties. No separate appeal was filed by the respondent no.3 to
challenge the order of injunction and therefore the appeal of the
appellants was not maintainable. He adverted to the Memorandum
of the Family Settlement dated 23/03/1994 being a vital document
to show the interest of the respondent no.1/ plaintiff in all the
properties and how under the subsequent Memorandum of Family
Settlement dated 24/10/2014, shortly after her marriage there
was a reconstruction of the shareholding pattern whereby the
respondent no.1 was completely kept out from what was bestowed
upon her by the family arrangement in 1994 and quite on the
contrary a liability was foisted on the respondent no.1. His next10
contention was that the impugned order need not have been
elaborate and what was necessary was the subjective satisfaction
of the Judge which was apparent from the records. He relied in A.
Venkatasubbaih Naidu v/s. S. Chellappan and others [(2000)
7 SCC 695] to support his contention and submitted that it was not
as if the learned Judge had passed the order mechanically and
quite on the contrary there was due a application of mind.
11. Shri D. J. Pangam, learned Advocate for the respondent
no.1 submitted that the impugned order satisfied all the
requirements of an order under Order XXXIX Rule 3 of C.P.C. The
appellants had not been able to show what prejudice was caused to
them by the impugned order. They could very well go before the
trial Court on the 19th instant when the matter was listed and seek
necessary reliefs to vacate the injunction order. Quite on the
contrary in case the order was vacated then there was every
possibility that the respondent no.3 would alienate, transfer the
properties and cause serious prejudice to the respondent no.1 as
also the appellants who were in control of the firms and could
reconstitute, effect transfer etc. There was no delay and latches as
claimed by the appellants and substantial time was taken up to
obtain the records. It was not the case of the appellants that no
prejudice was caused to them due to the delay and the latches.11
They had rather created a new entity which was not permissible
and entitling the respondent no.1 to the said reliefs.
12. Shri D. J. Pangam, learned Advocate for the respondent
no.1 also adverted to Article 1787 of the Family Laws to contend
that not more than 50% of the share could be disposed off by
virtue of the Deed of Settlement and relied in Joao Cardoso
(Deceased) represented by his legal representatives v/s.
Ethelvina Cardoso Rodrigues and another [2009 (5) Bom. C.R.
51]. At the highest the party aggrieved was the father i.e. the
respondent no.3 who alone could file an appeal who had abstained
from doing so. It was also his contention that Order XLI Rule 4
C.P.C. could not be pressed into service. The appellants and the
respondent no.3 had no common ground to assail the impugned
order and lastly the powers had to be invoked sparingly and the
possibility of contradictory decree could not be ruled out. In short,
it was his contention that neither the appellants nor the lone
appellant in the Appeal from Order No.45 of 2016 were affected by
the orders and no relief can be granted in their favour.
13. Shri V. A. Lawande, learned Advocate for the appellant
rejoined to submit that it was not open to the respondent no.1 to
contend that the appellant was not prejudiced. He clearly12
distinguished the judgment in A. Venkatsubbiah Naidu (supra)
which had considered all the aspects while passing the ex-parte
order. Shri S. G. Dessai, learned Senior Advocate submitted that
the trial Judge had not assigned any reason to support the
impugned order and Article 1784 was not attracted to the case at
hand. The appellants were affected by the order which was
granted in terms of prayer clauses (a) and (d) and therefore the
appeal lay and the order was liable for reversal.
14. Morgan Stanley (supra) spelt out the guiding
principles in relation to the grant of an ad-interim injunction in such
areas of the functioning of the capital market and public issues of
the corporate sectors and whether certain 'venu restriction clauses'
would require to be evolved judiciously. The guiding principles were
that the ex-parte injunction could be granted only under the
exceptional circumstances. The factors which should weigh with
the Court in the grant of ex-parte injunction were-
(a) where irreparable or serious mischief will ensure 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 would also consider the time at which the
plaintiff first had notice of the act complained so that the13
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 case, balance of
convenience and irreparable loss would also be considered by
the court.
15. In Sopan Thopte (supra) a Division Bench of this
Court noticed that in many cases subordinate Courts are granting
ad-interim reliefs without following the mandate of Rule 3 of Order
XXXIX of the C.P.C. 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 has been seen and
the plaintiff establishes prima facie case. The Courts should bear in
mind the foregoing principles enunciated in the case of Morgan14
Stanley Mutual Fund(supra). Their Lordships also observed that
in their view passing an interim order indiscriminately and without
apparent and due application of mind, which has the effect of
allowing the 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 while once
again emphasizing the need to see that the prima facie case is
made out before the Court grants an ad-interim injunction.
16. In GL Asia Mauritius II Cayman Limited (supra) the
learned Single Judge of this Court held that he could not accept the
submissions of the learned Judge that because there was an
agreement to purchase 40 percent of the shares of the Petitioner
no.3-Company who had 100 percent shares with the Respondent
no.2, would mean that the Respondent no.1 would acquire the coownership
rights to the immoveable property. It was further held
that a shareholder acquires a right to participate in the profits of
the Company but it is not possible to accept the contention that the
shareholder acquires any interest in the assets of the Company. A
shareholder does not have any right to the properties of the
Company and there is nothing in the Companies Act to warrant the
assumption that a share holder who holds shares by itself acquires
any interest in the property of the Company who is a juridical15
person entirely distinct from the shareholder.
17. In The Secretary and Curator, Victoria Memorial
Hall (supra), the three Judge Bench of the Hon'ble Apex Court
reiterated the settled legal proposition that not only administrative
but also judicial Orders must be supported by reasons recorded in
it. Thus, while deciding an issue, the Court is bound to give reasons
for its conclusion. The hallmark of an order and exercise of judicial
power by a judicial forum is to disclose its reasons by itself and
giving of reasons has always been insisted upon as one of the
fundamentals of sound administration justice delivery system, to
make known that there had been proper and due application of
mind to the issue before the Court and also as an essential
requisite of the principles of natural justice.
18. Vedant Fashions Pvt. Ltd. (supra) challenged in the
Writ Petitions the ex-parte order passed by the trial Court under
Order XXXIX Rules 1 and 2 read with Section 151 of C.P.C.
whereby ad- interim ex-parte temporary injunction was passed
against the defendants restraining them accordingly. The trial
Court had passed the ex-parte order against the petitioner therein
and in which context the learned Single Judge of the Karnataka
High Court examined Order XXXIX Rule 3 C.P.C. which mandates16
that the Court shall in all cases, except where it appears that the
object of granting the injunction would be defeated by the delay,
before granting an injunction, direct notice of the application shall
be given to the opposite party: provided that, where it is proposed
to grant an injunction without giving notice of the application to the
opposite party, the Court shall record the reasons for its opinion
that the object of granting the injunction would be defeated by
delay and require the applicant-
(a) to deliver to the opposite party, or to send to him by
registered post, immediately after the order granting the
injunction has been made, a copy of the application for
injunction together with-
(i) a copy of the affidavit filed in support of the
application; (ii) a copy of the plaint; and (iii) copies of
documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted
or on the day immediately following that day, an affidavit
stating that the copies aforesaid have been so delivered
or sent.
19. In Vedant Fashions Pvt. Ltd. (supra), the learned
Single Judge had extracted the order under challenge to ascertain
whether the trial Court had complied with the requirements of the17
proviso while dispensing with the notice to the defendant while
granting an ex-parte order of temporary injunction and from a
reading of the impugned order, it was clear that, nowhere reasons
had been recorded as to why the trial Court was of the opinion that
the injunction had to be granted by dispensing notice to the
respondent or that non-grant of an injunction would be defeated by
delay if notice was to be ordered by the respondent. The learned
Single Judge also found that the impugned order was bald, laconic
and bereft of any reason and the learned trial Judge had not even
made a brief reference to the facts of the case to arrive at a
conclusion that there was a prima facie case for consideration and
about the balance of convenience being in favour of the plaintiff
and whether she would suffer any reparable loss in case of refusal
of the ex-parte order and passed the impugned order mechanically
in that context. The impugned order had to be quashed on the
short ground that there was non-compliance of Rule 3 of Order
XXXIX of the CPC.
20. In R. K. Jain (supra), an ad-interim ex-parte order of
temporary injunction passed by the Additional City Civil & Sessions
Judge, Bangalore was questioned in this Writ Petition. The
respondent had instituted the suit for the grant of mandatory
injunction, permanent injunction and damages and also moved an18
application for the grant of the ad-interim ex-parte temporary
injunction in terms of Order XXXIX Rule 1 of C.P.C. to restrain the
defendants from printing, publishing or spreading any defamatory
statement in any manner or material circulated or any other
reporter or through any print media to defame the plaintiff. The
learned Single Judge of the Karnataka High Court had extracted the
Order under challenge where the action which was canvased that it
was ex-facie arbitrary having been passed in utter disregard of the
mandate under Rule 3 of Order XXXIX C.P.C. The learned Single
Judge extracted Order XXXIX Rule 3 of C.P.C., perused the
impugned order and found that the trial Judge had merely taken a
note of the contention of the Counsel and granted an ex-parte
temporary injunction.
21. In Vedant Fashions Pvt. Ltd. (supra), the learned
Single Judge found that the impugned order was bereft of any
reason and the trial Judge without reference to any material had
assumed that the plaintiff had a prima facie case. He had not
touched upon the question where the balance of convenience lies,
nor had he dealt with the question whether the plaintiff would be
put to irreparable loss in case injunction had not been granted. He
had also not recorded whether the plaintiff had approached the
Court without any delay and held that the findings were perverse19
and capricious on the temporary injunction granted mechanically.
A. Venkatasubbaih Naidu (supra), was an appeal by special
leave at the instance of the plaintiff who was initially secured by an
ex-parte interim order of injunction against some of the defendants
and obtained it. Those defendants rushed to the High Court to get
that order quashed and succeeded in their respective endeavour.
The Appellant had filed the suit for a decree of permanent
injunction to restrain the defendant Nos.1 to 5 from dispossessing
him and moved an application under Order XXXIX Rules 1 and 2 of
C.P.C. seeking an ad-interim relief ex-parte.
22. In A. Venkatasubbaih Naidu (supra), the Assistant
Judge of the City Civil Court, Chennai passed the order and granted
ad-interim injunction recording that the Order XXXIX Rule 3 of
C.P.C. had to be complied with. The first respondent and the
respondent Nos.2 to 5 invoked the revisionary jurisdiction of the
High Court invoking the Article 227 of the Constitution alleging that
they purchased the property by different sale documents and were
in possession and enjoyment. The learned Single Judge of the
High Court observed that the Trial Court ought not to have granted
an order of injunction at the first stage itself and that such a course
is impermissible under Order XXXIX Rule 3A of the C.P.C. and set
aside the injunction order. 20
23. In A. Venkatasubbaih Naidu (supra), it was
contended on behalf of the respondents that an order granting
injunction without complying the requisite envisaged under Rule 3
Order XXXIX was void. Their Lordships of the Apex Court
extracted the same and in their view held that such an order could
be deemed to contain such requirements at least by implication
even if they are not stated in so many words. This judgment in that
respect does not lay down a proposition that Order XXXIX Rule 3 of
C.P.C. is not mandatory. Quite on the contrary it is borne out from
the said judgment at paragraph 5 that the Assistant Judge of the
City Civil Court, Chennai had in fact examined the case to some
extent on the aspect of prima facie case, balance of convenience
and in those circumstances had granted an ad-interim injunction
ex-parte. It is therefore to be seen whether the same would apply
in the facts at large and which would be apparent only on a
scrutiny of the order as passed by the learned trial Judge.
24. The respondent no.1 had maintained the suit for the
reliefs of declaration and permanent injunction against the
appellants and the respondent nos.2,3 and 4 alleging that the
contents of the Memorandum of Family Settlement dated
24/01/2014 and the Deed of Reconstitution were beyond her
knowledge. It was her case that she had signed the documents21
under duress although she relied upon the recorded conversation
to support her contention in that regard. It was also her case that
she had terminated the Deed of Family Settlement by a legal
notice despite which the appellant nos.1 and 3 had gone ahead and
surreptitiously created third party right in the family properties and
executed a Gift Deed in favour of the respondent nos.6 and 7.
25. The respondent no.1 had otherwise attributed malafide
to these parties and the respondent nos.3 and 4 and without
getting into further details had sought for the relief of injunction
and prayed for an ad-interim relief which was granted in her favour.
Without detaining myself on the matter of the family arrangement
of 1994 and the Memorandum of Understanding of October,2014
settling their respective rights and liabilities which would be an
issue to be dealt with by the trial Court on merits; the question
which would remain at large and relevant in this appeal is whether
the learned trial Judge had in fact applied its mind to the case
before it in terms of the predicates of Order XXXIX Rule 3 C.P.C.
before securing the respondent no.1 with the relief of injunction.
Order XXXIX Rule 3 C.P.C. reads thus :
3. Before granting injunction, Court to direct notice to
opposite party.- The Court shall in all cases, except where it
appears that the object of granting the injunction would be22
defeated by the delay, before granting an injunction, direct
notice of the application for the same to be given to the
opposite party:
[Provided that, where it is proposed to grant an injunction
without giving notice of the application to the opposite party,
the Court shall record the reasons for its opinion that the
object of granting the injunction would be defeated by delay,
and require the applicant—
(a) to deliver to the opposite party, or to send to him by
registered post, immediately after the Order granting the
injunction has been made, a copy of the application for
injunction together with—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or
on the day immediately following that day, an affidavit stating
that the copies aforesaid have been so delivered or sent.]
Therefore a bare reading of Rule 3 Order XXXIX of C.P.C.
would make it abundantly clear that the Court shall in all cases
direct a notice of the application to be given to the opposite party
except whether it appears to it that the object of granting the
injunction would be defeated by delay. The judgment of the Court
does not end at that and it is apparent from the proviso23
circumscribed the Rule that where the Court proposes to grant an
injunction without giving notice of the application to the opposite
party, the Court shall record the reasons for its opinion that the
object of granting the injunction would be defeated by delay and
require the plaintiff to comply with certain contents. It is therefore
to be seen in the parameters of Order XXXIX Rule 3 of C.P.C.
whether the impugned order meets the said criteria.
26. The learned trial Judge had recorded the order which
reads thus : ORDER
“Perused the plaint, application for Temporary Injunction, the
documents, and the affidavit of the plaintiff supporting her
pleadings of plaint application for T.I.
Heard arguments advanced by Ld. Adv. D. Lawande on behalf
of the plaintiff. It is submitted that the defendants, taking
advantage of the memorandum dt.24.10.2014, are likely to dispose
the properties, i.e. the subject matter of the suit. That the plaintiff
has right title and interest in the suit properties as she being a coowner
and that the properties are ancestral properties.
Any act on behalf of the defendant to transfer, alienate,
mortgage or create any third party interest would likely to
prejudice the plaintiff right to suit property.
I have duly considered the pleading of the plaint Temporary
Injunction application, affidavit by the plaintiff, so also documents
on record.24
The material on record disclosed a prima-facie case in favour
of the plaintiff that in order to protect the subject matter of the suit
I pass the following Order;
“Issue Show cause notice to the Defendant r/o 19/07/2016 at
2.30 p.m., Defendants are directed to maintain status-quo in
respect of prayer A & D of Temporary Injunction till next date of
hearing.”
27. A cursory perusal of the order under challenge would
reveal that the learned trial Court even on a prima facie
consideration had not applied its mind to the case of the plaintiff
and had made a cursory record that it had perused the plaint,
application for temporary injunction, the documents under affidavit
supporting the pleadings and recorded the arguments made by the
learned Advocate then appearing for the plaintiff. The learned trial
Court had made an omnibus observation that it had duly
considered the pleadings, affidavits and the documents and without
any further discussion had hastily concluded that the material on
record disclosed a prima facie case in favour of the plaintiff and in
order to protect the subject matter of the suit, she was inclined to
pass the order without in any manner considering the predicates of
Order XXXIX Rules 1 and 2 C.P.C., that the plaintiff had carved out
a prima facie case, that the facts and circumstances of the case at
large before her warranted an inference the the balance of
convenience was tilted in favour of the plaintiff and that the25
plaintiff would suffer irreparable loss and injury in case she was not
secured with the relief of injunction, ex-parte.
28. The learned trial Court was brazen to make a record
that she had considered the pleadings and documents and the
material disclosed a prima facie case without any reference thereto
and without considering the aspect of equities and the extent of
irreparable loss and injury suffered by the plaintiff granted the adinterim
relief of injunction ex-parte. This order passed by the
learned trial Judge was completely in breach of the mandate of
Order XXXIX Rule 3 of C.P.C. which required the Court as a matter
of Rule to issue notice and whether it deemed fit that the object of
granting the injunction would be defeated by the delay and to
accord reasons for its opinion that the object of granting the
injunction would be defeated by delay. None of these requirements
have been adhered to by the learned Trial Court which had
mechanically granted the relief to the plaintiff in complete violence
to the requirement of Order XXXIX Rule 3 of C.P.C.
29. That the learned trial Court had not applied its mind
while passing the impugned order is also borne out from the fact
that she had made an omnibus order of injunction not only against26
the present appellants and the respondent nos.3 and 4 but also
included the respondent no.2 i.e. the Chartered Accountant who
had filed a separate appeal and the respondent nos.6 and 7 who
had no truck with the lis between the contesting parties and being
the beneficiaries under the Gift Deed executed in their favour by
the appellant no.1. There was no reason for the learned trial Court
to extend the relief of injunction against the respondent no.2 who
was acting purely in his professional capacity and had no right or
interest in any of the properties in which she claimed right under
the family arrangement of 1994. The manner in which the order
has been passed therefore reflects a mechanical passing of the
order without a proper application of mind and on that premise too,
the impugned order cannot be sustained.
30. There was no justification for the learned trial Court to
pass the order as it did which reflects that it has not even
considered the pleadings as otherwise it would not have secured
the plaintiff with the order of injunction considering her pleadings
also that the Memorandum of Understanding was of October,2014
and that she had sought to negate it by her notice in 2015 and the
suit was filed much thereafter i.e. in July,2016 to claim the
equitable relief of injunction. 27
31. In the result, there is no basis to sustain the the
impugned order which is quashed and set aside. Since the parties
have otherwise been directed to appear before the trial Court on
19/07/2016 at 14.30 hours, they shall so appear before the trial
Court on the scheduled date and time. The trial Court is directed
to consider the application in accordance with law. The appeals
stand disposed off accordingly. The trial Court shall however not be
influenced by the observations made by this Court while dealing
with the appeals and passing the order.
NUTAN D. SARDESSAI, J.
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