Akbar Ali And 2 Others Petitioners v. Alla Pitchai

1. Respondents in CMA. 2 of 1999 on the file of Vacation District Judge at Perambalur are the revision petitioners in this revision petition.

2. Respondents herein filed a suit for partition claiming 1/3rd share in the plaint scheduled properties and also moved I.A No. 976 of 1996 for injunction restraining petitioners from putting up any construction in the plaint properties. They also wanted petitioners from not dealing with properties by executing a document in favour of third person.

3. A detailed counter was filed by petitioners on 7.3.1999 and as per order dated 23.4.1999 The trial court dismissed the injunction application. Trial Court found respondent has no prima facie case and his right to claim partition was found to be doubtful. Trial Court also held that petitioners have already begun to put up construction and if interim order is granted, petitioners will be put to great hardships. Trial Court further held that respondents has come to Court not with clean hands and even the injunction application as well as plaint suppressed material facts. The injunction application was dismissed with costs.

4. Apprehending that appeal will be filed against dismissal of injunction application, petitioner, through his counsel Rengasamy, Advocate, Thuraiyur, filed a caveat and the same has also been served on respondents.

5. During mid summer vacation, respondent moved CMC. 2 of 1999 on 13.5.1999 Perambalur Vacation Court i.e, subordinate Judge's Court, Ariyalur, took note of the caveat and issued notice to petitioners returnable by 20.5.1999 Notice was not served to counsel who has filed caveat, who has also filed his address of service. On 20.5.1999, lower appellate court found that notice of injunction application was refused by petitioners and on the same date, passed the impugned order. It declared that service to petitioners is sufficient and since they are not represented by any counsel not they have presented themselves before court, injunction application was heard. Prayer for injuction prohibiting from alienation of property was not granted. But, petitioners were prohibited from putting up any construction in the plaint property till disposal of CMA. The said order is under challenging in this revision petition.

6. Since caveat was entered by respondent, I directed learned counsel for petitioners to give notice to the respondent's counsel with typed set of papers. On complying the said direction, I heard the entire revision.

7. Learned Counsel for petitioner submitted that when caveat has been entered through counsel, notice should have been given to counsel and not to the party. Service of notice to party was not proper and in this case party has been put to great hardships in view of the procedure adopted by vacation court. The case itself was posted on 20.5.1999 at 10.00 a.m and lower court has took note of the endorsement dated 20.5.1999 as if petitioners refused notice on injunction application. Further contention of learned counsel is that notice of appeal nor injunction application was not served on them till 21.5.1999 and passing impugned order is violation of all procedural laws.

8. Alternatively, it is argued that even if petitioner refused to receive notice that by itself cannot be a ground for granting injunction. Trial Court by a detailed reasoning the relief of injunction and has even criticised the conduct of respondent in not coming to court with clean hands. Trial Court has also found that none of the conditions for grant of injunction i.e prima facie case, balance of convenience and irreparable injuries are made out and when that order is before the court, Vacation court should have at least looked into that order before passing interim order. Vacation Court has not even entered a finding that respondent got prima facie case or other grounds under Order 39, Rule 1 which alone entitled the court to grant injunction.

9. Learned Counsel for respondent submitted that the impugned order is only ad interim order and he pleads that necessary direction is given to lower appellate court to dispose of the Civil Miscellaneous Appeal. He wanted to maintain the injunction order passed by lower appellate court.

10. After having heard the counsel on both sides, I do not think that the order of lower court be sustained for a moment.

11. As rightly contended by learned counsel for petitioner when caveat has been entered through counsel, who has also given his address of service, it is duty bound on the part of vacation court to issue notice to the counsel. Even if notice has been ordered to party order should not have been passed without hearing counsel who has already informed his address of service. Counsel has also placed before this court the notice issued in CMA with cover. It could be seen that notice was sent from District and Sessions Court, Perambalur on 17.5.1999 and even on 21.5.1999, the notice could not be served since petitioners were not in station. On interlocutory application in CMA. 2 of 1999, the case was posted to 20.5.1999 at 10.00 a.m Lower Court has held that petitioners refused to accept notice on 20.5.1999 and the case has been taken up on that date itself declaring that the service was sufficient. I do not find that the process server has followed the procedure while notice is refused to be accepted. At any rate, even assuming that notice was refused to be accepted on 20.5.1999, the case cannot be taken up on that date itself, since petitioners are entitled to get reasonable time to engage counsel.

12. A division Bench of Karnataka High Court, in a decision reported in Nova Granits (India) Ltd v. Coach Kraft (Bangalore) Pvt. Ltd, 1994 (1) CLJ 711 had occasion to consider a similar question. One of the questions that was posted before the Division Bench was whether the lower court has erred in issuing notice of interlocutory application to defendant, instead of sending notice to the advocate for caveator, whose address is given in the caveat petition. An argument was taken by the learned counsel for petitioner before the Karnataka High Court that section 148-A of the Code of Civil Procedure only refers to notice to caveator and therefore notice to the party alone is contemplated, it is further placed before the Division Bench whenever notice on counsel is contemplated Procedure Code provide for the same. In paragraphs 11 to 13 the Division Bench held thus,

11. Sri Udaya Holla, learned counsel for the petitioner submitted that the notice of I.A No. 1 ought to have been issued to the Advocate for defendants as prayed for in the caveat petition. Continuing his submission the learned counsel argued that if in such a situation notice is issued to the party, it is likely to create complications and likely to give scope for trick and stratagem. In this connection, the learned counsel has relied on Rule 19 of the Karnataka Civil Rules of Practice, 1967. On the other hand, Sri Shekar Shetty, learned counsel for respondent submitted that Section 148-A of C.P.C contemplates notice to caveator and not to the lawyer for the caveator. Dilating on this aspect, the learned Counsel took us to certain provisions like Order 3, Rule 7, Order 5, Rule 3, Order 5, Rule 15 of C.P.C to contend that wherever and whenever the Legislature thought that the notice could be served either on the party or on the Lawyer, the same was incorporated as such in the relevant provisions. It is pointed out by Sri Shekar Shetty, learned counsel that there is no such incorporation, in Section 148-A of C.P.C In this connections Sri Shekar Shetty relying on the decision in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kunjarsheth etc., AIR 1984 SC 1543, contended that when the language of the provision is plain the same cannot be stretched beyond the meaning flowing from the same simply on the ground that if it down so hardship may be caused on the one party or the other.

12. We have given our anxious consideration to the submission made by the learned counsel on either side on the aspect touched upon immediately hereinabove.

13. In our considered view, when the proposed defendant has chosen a Lawyer and lodged a caveat stating therein that the address for service of such an application is that of his Advocate, notice should be served on him. That is so because, if notice is not served on the Advocate it may lead to certain complications and injustice in certain cases. In a given case, it may so happen that the defendants to whom notice is actually served may labour under the impression that since they have already entrusted the matter of their Lawyer for the purpose of opposing the interim application by filing a caveat, may not choose to appear before court at all. In such a situation if notice is not given to the Lawyer, it may lead to injustice. It is true as rightly pointed out by Sri Shekar Shetty, learned counsel that section 148A o f CPC does not speak of a notice of interim application in a suit to a counsel. However, when a party himself has appointed a Lawyer who in law is his agent for the purpose for which he is appointed, it is obvious that a notice to such a Lawyer will be valid notice to the party also with reference to that purpose. If inspite of a notice being given to a Lawyer does not appear before Court and takes care of the interests of his client, he does so at the peril of his own client for which his client should thank himself. It is true that in certain provisions of Code of Civil Procedure a reference is made to the agent of the party. However, that does not mean that whenever and wherever a reference is not made to a counsel or an agent a notice to an agent or a counsel is bad in law. It is necessary to remember that section 148A of CPC cannot be read in a closed jacket or in isolation; the same will have to be read in conjunction with the provisions reflected in Order 3, Rules 19 of Civil Rules of Practice. At this juncture, it would be indeed refreshing to refer to the provisions reflected in Rule 19 of Civil Rules of Practice. Rule 19 Reads as under

“19(1) Every interlocutory application, shall, after presentation, be numbered and posted before the court for orders:

Provided that, when any party likely to be affected by it has already entered appearance by pleader, no such application shall be so posted, unless such pleader has been served with notice of the application by delivering to him a copy of the supporting affidavit or memorandum of facts, and the written acknowledgment over the signature of each pleader or his registered clerk is taken either by an endorsement on the application of otherwise and is filled into court along with the application.

(2) If, however, the applicants pleader makes an endorsement on the application that such service on Pleader was either refused to be accepted or could not be effected inspite of due diligence, the court may direct that the application be numbered and posted.

(3) Whenever it is intended to move the application as an emergent application, the copy of the application served on every Pleader under this rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement.”

We hasten to add here that Rule 19 is not a rule specifically referable to section 148A of CPC as such. However, the said Rule cannot be ignored even in the context of the provisions of section 148A of CPC. Looked at from any point of view we are of the view that a notice to the lawyer of the caveator should be given. Further, it is also necessary to remainder that if that courses of action is not followed status of a lawyer who is an officer of the Court is likely to be diluted. However he hasten to add here that in a given case instead of issuing a notice to the Advocate, a notice is given, in fact, to the party, the same cannot be considered as bad in law if it has not otherwise prejudiced him in the context of the circumstances referred toby us earlier. At the same time, we make it clear that it should be the duty of the court to cause the notice of the application on the Lawyer.”(Italics Supplied)

I feel that the above decision completely answers and supports the case of the petitioners.

13. Even if notice has been served on petitioners, they would not have been made arrangements on 20.5.1999itself before 10.00 a.m The non-service of notice on interlocutory application on counsel has seriously prejudiced the case of petitioners. Lower court has flouted all rules when granting interim order.

14. Even on merits I do not think that lower court has followed various decisions of Honourable Supreme Court, while granting interim order. In that case, trial court has already entered a finding that respondent is not entitled to any interim order and even criticised the conduct in not coming to court with clean hands. Trial Court has further found that he has suppressed the material facts, which disentitle him to go interim order. Trial Court has also entered a finding that respondent has not satisfied any grounds so as to get interim relief under Order 39, Rule 1 of Code of Civil Procedure. By passing an interim order, court is bound to look into at lest the order that is challenged. When one court has recognised and upheld the objection of petitioners, merely because they absented from attending court, cannot be a reason for granting interim relief. Appellate court has not entered a finding that respondent has got prima facie case or that he got balance of convenience or refusal of interim relief will put him in great hardship. Lower Court gets jurisdiction to pass interim order only when these condition are satisfied.

15. In Shiv Kumar Chandha v. Muncipal Corporation of Delhi, 1993 (3) SCC 161, in paragraphs 34 and 35, their Lordships held thus.

“ 34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “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 for the same to be given to the opposite-party”. The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court “shall record the reasons” why an ex-parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court of the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Nazir Ahmed…Accused— v. Emperor….. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare.

35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant facts, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed…..” (Italics supplied)

16. The principle stated in the above decision was followed in the decision reported in Morgan Stanley Mutual Fund v. Kartick Das., 1994 (4) SCC 225. In para 36 of the Judgment, their Lordships held that ex parte injunction shall be granted only in exceptional circumstances and the conditions on the basis of which ex parte order could be granted is stated thus.

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 then 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 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.”

17. In Dalpat Kumar v. Prahlad Singh, 1992 (1) SCC 719, in para 6 of the judgment, their Lordships held thus,

“ …. The phrases “prima facie case”, “ balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice.

The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success.”

18. The interim order do not satisfy any of the legal requirements and any order passed without satisfying the said requirements is one without jurisdiction. Lower appellate court did not see whether respondent has proved his case so as to get interim order, but took into consideration only the absence of petitioners. When the correctness of Court's order is under challenge, the person challenging the same has to prove that the order of trial court requires interference and only then he will be entitled to any relief whether permanent or interlocutory. While granting interim order, the Court should also record its reasonings. That has also not been done in this case.

19. Learned counsel for petitioner further submitted that Court when passed the order did not have jurisdiction even to pass interim order. It is said that vacation court constituted for Perambalur was the Chief Judicial Magistrate at Perambalur and not the Perambalur vacation Court, I am not commenting on that argument since the concerned notification has not been placed before this Court.

20. In the result, the impugned order is set aside and the ad interim injunction granted by Vacation District Judge, Perambalur in I.A No. 13 of 1999 in C.M.A No. 2 of 1999 is set aside. The Court, which is competent to hear C.M.A No. 2 of 1999 will hear the matter on merits and dispose of the same in accordance with law. The interim order is vacated. I do not think that separate order on interim application is necessary since argument in C.M Appeal and interlocutory application are same. Lower court is directed to dispose of the civil miscellaneous appeal after hearing both sides.

21. The revision petition is allowed with costs. Consequently, C.M.P No. 10217 of 1999 is closed.