Nat Organic Chemicals Industries v. B.L. Industries

B.N Kirpal, J.—On 17th December, 1987 an ex parte injunction was granted against the defendant. A Local Commissioner was also appointed, inter alia, for preparing an inventory of the goods in possession of the defendant. It was further directed that the plaintiff will comply with the provisions of Order 39 Rule 3 C.P.C

2. The defendant has moved the present application contending that the provisions of Order 39 Rule 3 have not been complied with by the plaintiff and as such this Court should vacate the order dated 17th December, 1987 granting an ex parte ad interim injunction.

3. Order 39 Rule 3 provides that before granting an injunction, notice should be issued of the application to the opposite party. It further provides that such a notice need not be issued where it appears to the Court that the granting of an injunction would be defeated by the dealy. The proviso to rule 3, which was inserted by amendment with effect from Ist February, 1977, provides that when an ex parte injunction is proposed to be issued, the Court shall record the reasons for its opinion in doing so and the Court should also require the applicant 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 (1) a copy of the affidavit filed in support of the application; (2) a copy of the plaint; and (3) copies of documents on which injunction lies. Clause (b) of the provisio further requires that on the date on which such an injunction is granted or on the day immediately following that day, an affidavit stating that copies of the documents mentioned above have been so delivered or sent should be filed.

4. The submission of the learned counsel for the defendant is that noncompliance of the provisions of the proviso to Rule 3 of Order 39 must imply that the ex parte injunction which had been granted would stand automatically vacated.

5. In my opinion, there is no warrant for the aforesaid submission made by the learned counsel for the defendant. The effect of not complying with the provisions of proviso to Order 39 Rule 3 is not indicated anywhere. It is not stated in Order 39 Rule 3 that if the provisions of the proviso are not complied with by the applicant, the result would be that the injunction would stand automatically vacated.

6. Prior to its amendment in 1977, as already mentioned above, there was no provision of law which required copy of the application for injunction or any of the documents being sent to the defendant along with the order of injunction. It used to happen that the defendants would be served with orders of injunction without the defendants' knowing the suit which had been filed against them or the contents of the applications on the basis of which an injunction order was passed. This would have the effect of depriving the defendant of an opportunity to make an effective application under Order 39 rule 4 for vacation of an exparte injunction. It is, presumably, with a view to mitigate this disadvantage that the Legislature probably thought it necessary to make a provision making it obligatory for the applicant to serve on the defendant copy of the application along with order documents when an ex parte injunction is granted. When the defendant is made aware of an order of injunction having been passed against him and has within his possession copies of the plaint as well as application for injunction and other documents the defendant would, if it is so advised, be in a position to take steps either to file a reply to the application under Order 39 Rules 1 and 2 or and also in addition to the reply, move an application under Order 39 rule 4 for vacation of the interim injunction.

7. This right which has been granted to the defendant by proviso to Order 39 Rule 3 is a valuable right. The defendant is entitled to know the case which has been made out by the plaintiff on the basis of which an ex parte injunction is granted. If, therefore, the plaintiff obtains an injunction and serves the same on the defendant and deliberately does not comply with the provisions of proviso to Order 39 Rule 3, the effect of this would be that the defendant would be prejudiced by the inaction of the plaintiff. This inaction of the plaintiff would, to my mind, be a relevant circumstance to be taken into consideration by the Court while deciding whether to continue with the injunction or not. It the Court is of the opinion that the plaintiff delibertealy or for some oblique motive did not comply with the provisions of Order 39 Rule 3 proviso then the Court may be inclined, on that ground alone, not to continue with the ex parte injunction but non-compliance of the provisions of Order 39 Rule 3 proviso would not, in the absence of any specific provision to that effect in the statute, mean that the ex parte injunction which had been granted would stand automatically vacated.

8. Coming to the facts of the present case, the injunction was granted on 17th December 1987, 18th December, 1987 was the last working day when the Court functioned. According to the report of the Local Commissioner the defendant became aware of the injunction on 23rd December, 1987 when the Commissioner gave a copy of the injunction order to the representative of the defendant. It is true that there was delay on the part of the plaintiff in complying with the provisions of Order 39 Rule 3 proviso. According to the plaintiff, it got a copy of the order of this Court granting the injunction only on the evening of 18th December, 1987. Provisions of proviso to Order 39 Rule 3 does not require the plaintiff co send copy of the order to the defendant. The requirement of the proviso to Order 39 Rule 3 is to deliver to the opposite party or to send by registered post copy of the application of injunction, copy of the plaint etc. The plaintiff could and ought to have taken necessary action under the said proviso either on the day when the injunction was granted or on the following day. It appears that the plaintiff complied with the provisions of Order 39 Rule 2 proviso only on 26th December, 1987 when the said documents were sent by registered post. Thereafter the Court reopened after vacation and on 4th January, 1988 affidavit as provided by Order 39 Rule 3 proviso was filed by the plaintiff.

9. From the facts enumerated above, it does appear that there has been a lapse on the part of the plaintiff in not complying with the provisions of Order 39 Rule 3 proviso. The question which however, arises is that has that lapse resulted in any serious prejudice being caused to the defendant. As. I have already noted above the Court closed for winter vacation after 18th December, 1987 and re-opened on 4th January, 1988, though the Registry of the High Court opened on 2nd January, 1988 for the purpose of filing. It is before 2nd January, 1988 that the defendant had been served both with the order of injunction as well as copy of the application for injunction, plaint, affidavit in support of the injunction and copies of the documents on which the applicant relied. As such the defendant could take appropriate action either in filling a reply to the application under Order 39 Rules 1 and 2 and/or filing an independent application under Order 39 rule 4 immediately on the reopening of this Court. The delay in sending the documents to the defendant has not, in my opinion, caused any serious prejudice to the defendant.

10. For the aforesaid reasons, I come to the conclusion that the ad interim ex parte injunction which was granted on 17th December, 1987 did not stand automatically vacated. The application is accordingly dismissed.

Application dismissed.