- (1.) This is an appeal by the defendant-appellants against the order passed ex parte, issuing a mandatory injunction against it to deliver the custody of the goods entrusted to it for purpose of transport by the plaintiff. The main grievance of the appellants is that the order was passed ex parte without complying with the provisions of O.39, R.3, C.P.C., which are mandatory in nature.
(2.) On a perusal of the order impugned herein, we find that although court below has tried to safeguard the interest of both the parties; but it has failed to record any reason as to why it became necessary to pass an ex parte injunction without serving notice on the respondent.
(3.) Rule 3 of O.39, C.P.C. lays down that only in case where it appears to the Court that object of granting injunction would be defeated by the delay it has no power to issue ex parte order of injunction. In that circumstance also the court has to record reasons for its opinion that the object of granting injunction would be defeated by the delay. Sri R.K. Agrawal, learned counsel for the respondent has however, submitted that even if reasons have not been, mentioned, yet there was material, which was enough for forming its opinion to grant ex parte injunction order. We cannot agree to this submission, for the simple reasons that where law requires recording of reasons for doing a particular act, the mere presence of material on the record is not sufficient; but it must also be shown that the court has applied its mind to that material. Reasons must find a place in the order ultimately passed by a court. Reference in this connection may be made to the decision of the Supreme Court in Collector of Monghyr v. Keshav Prasad Goenka, AIR 1962 SC 1694. In para 16 of the report a similar argument was raised before the Supreme Court and was repelled in the following words : "To suggest that by a recital of the nature of the repairs required to be carried out and employing the language of S.5-A (j) the officer has recorded his reason for invoking S.5-A is to confuse the recording of the conclusion of the officer with the reasons for which he arrived at that conclusion. Besides just as it would not be open to argument that the terms of S.5-A (1) will be attracted to cases where there is factually an emergent need for reparis of the type envisaged by the section but the Collector does not so record in his order; similarly the factual existence of reasons for the Collector's conclusion would not avail where he does not comply with the statutory requirement of stating them in his order." Besides the above case, recently in F.A.F.O. No.293 of 1989, a Division Bench of this Court (to which one of us was a member) precisely the same question arose and it was held that the ex parte injunction cannot be granted unless R.3 of O.39 is complied with.;