Altamas Kabir, J. - (1.) This appeal is directed against Order No. 2 dated 5th September, 2000, passed by the learned Additional District Judge, Contai, District- Midnapore, in Title Suit No. 3 of 2000, granting ad interim order of injunction on the plaintiffs' application for temporary injunction, till the disposal of the said application.
(2.) Appearing for the appellant, Mr. Amitava Ghosh submitted that the impugned order was per se bad having been passed exparte without compliance with the provisions of Rule 3 of Order 39 of the Code of Civil Procedure which requires the court to record reasons while granting an ex-parte order of injunction. Mr. Ghosh submitted that the law relating to grant of ex-parte orders of injunction had been clearly explained by the Hon'ble Supreme Court, in Shiv Kumar Chadha vs. Municipal Corporation of Delhi & Ors., and in Morgan Stanley Mutual Fund vs. Kartick Das.
(3.) Mr. Ghosh submitted that in Shiv Kumar Chadha's case the Hon'ble Supreme Court had observed that before passing an order of injunction the court has to be satisfied that a strong prima facie case has been made out by the plaintiff, including on the question of maintainability of the suit, and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. The Hon'ble Supreme Court went on to observe that the courts have to be more cautious when the said power is exercised without notice or hearing the party who is to be affected by such ex-parte order. The Hon'ble Supreme Court also had occasion to refer to the Civil Procedure Code (Amendment) Act, 1976, whereby a proviso had been added to Rule 3 of Order 39 indicating 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. Mr. Ghosh submitted that after considering the imperative nature of the proviso and the principles laid down in earlier decisions, the Hon'ble Supreme Court finally concluded that whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to the other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself would be defeated if an ex-parte order was not passed. Furthermore, such ex-parte order should be in force upto a particular date before which the plaintiff should be required to serve notice on the defendant concerned. Mr. Ghosh submitted that in the Morgan Stanely Mutual Fund case the Supreme Court while considering certain provisions of the Consumer Protection Act, 1986, also had occasion to consider the provisions relating to grant of ex parte ad interim orders of injunction. Mr. Ghosh submitted that among several questions posed by the Hon'ble Supreme Court in the said decision, one of the questions related to the guiding principles in relation to the grant of ad interim injunction in areas concerning the functioning of the capital market and public issues of the corporate sector and whether certain 'venue restriction clauses' would require to be evolved judicially as has been done in cases such as the Sanchaita case. Mr. Ghosh submitted that while answering such question the Hon'ble Supreme Court observed that 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 case, balance of convenience and irreparable loss would be considered by the court.";