- (1.) A little drift invited the parties to address an important legal point as to whether the Appellate Court should grant the stay of the operation of the order after admission of an appeal which virtually tantamount to allowing an appeal itself.
(2.) Order 39 Rule 1 & 2 of the Code deals with the temporary injunction that may be granted by the Court in the attending facts and circumstances. Rule 3 of Order 39 which was subsequently amended in 1976 throws light on the guiding factors both at pre and post stage of interim injunction. Ordinarily the Court should not pass an order of injunction without notice to the other side as it would offend the principle of natural justice. By an amendment having brought in the Year 1976, Rule 3 of Order 39 faced with the see change conferring power upon the Court to pass an ex parte ad interim order of injunction subject, however, to recording of the reasons. The said power was brought in the statute book as the law makers thought that in a deserving cases an immediate and prompt protection and/or preservation of the property is needed. Despite the amendments having brought in Order 39 Rule 3 of the Code, the Division Bench of this Court in case of Sm. Muktakesi Dawn & Ors; -v- Haripada Mazumdar & another, 1988 AIR(Cal) 25 held that recording of reasons while passing the ex parte ad interim order of injunction is not that imperative and mandatory to render the order unsustainable. The aforesaid proposition was operating in the field for a quite number of years until the Supreme Court in case of D.R. Chawla & Ors. v- Municipal Corporation of Delhi, 1993 3 SCC 161 took a different view and held that non-recording of reasons makes the order fundamentally wrong, illegal and the Court cannot shirk its responsibilities and duties in providing reasons at the time of passing the ex parte ad interim order. In a later decision of the Supreme Court rendered in case of Morgan Stanley Mutual Fund v- Kartick Das, 1994 4 SCC 225, the said principles have been reiterated and restated. The aforesaid two judgments of the Supreme Court virtually overruled the ratio laid down in case of Muktakesi Dawn which is noticed in another Division Bench judgment of this Court in case of Supratik Ghosh & Anr; -v- M/s Pasari Housing Devolopment Pvt. Ltd, 2000 1 CalHN 614. In Supratik Ghosh, the Division Bench explicitly held that the ex parte ad interim order, bereft of the reasons, is null and void and cannot be allowed to occupy the space in the legal book. The proposition of law as it stands today in view of the pronouncement made in D.R. Chawla is uniform that in absence of any reasons required to be recorded by the Trial Court before passing an ex parte ad interim order of injunction, the order is unsustainable and cannot be allowed to stand. The proposition of law as emerges is so settled to further deliberate upon.
(3.) The point which cropped up subsequently is whether the Appellate Court even after noticing that the order impugned before it does not contain the reasons while passing the ex parte ad interim order is required to be set aside even, when there is a convincing materials and pleadings in this regard. In Jitesh Pandey v- Smt. Urmilata Sinha & Ors,2000 2 CalHN 856, the Co-ordinate Bench held that the remedy of the defendant who is served with the show cause notice where the Court passed an ex parte ad interim order of injunction has three fold remedies firstly; the defendant can answer to the show cause in the form of an objection to the application for injunction secondly; he can file an application under Order 39 Rule 4 of the Code praying for vacation, variation and setting aside of the ex parte ad interim order of injunction on the ground of suppression of facts or otherwise and thirdly, he can file an appeal under Order 43 Rule 1 (r) of the Code before the Appellate Court. It is further held that if the third remedy is exhausted the defendant has to accept the statements made in the injunction application as sacrosanct and then to demonstrate before the Appellate Court that in spite of the aforesaid facts, the circumstances does not warrant the passing of ex parte ad interim order of injunction. The subsequent observation of the Co-ordinate Bench did not find favour to a Division Bench dealing with the case of Bengal Club Limited v- Susanta Kumar Chowdhury, 2002 3 CalHN 322.;