@JUDGMENTTAG-ORDER
K. Mohan Ram, J.@mdashFirst defendant in OS. No. 6164 of 2010 on the file of the 18th Assistant Judge, City Civil Court, Chennai is the
petitioner in the above civil revision petition.
2. The first respondent herein filed the said suit seeking a decree for the following reliefs:
(a) to declare the appointment of the third defendant as null and void; and
(b) for a permanent injunction restraining the third defendant, its men or agents from proceeding in any manner to register the names of players
belonging to the member clubs affiliated to the second defendant as per the communication dated 14.6.2010.
3. Along with the said suit, the first respondent herein filed IA. No. 11822 of 2010 seeking an order of interim injunction restraining the third
defendant and proceeding in any manner to register the names of the players belonging to the member clubs affiliated to the second defendant as
per communication dated 14.6.2010 pending disposal of the suit. The following ex parte order of injunction came to be passed on 2.7.2010:
Heard. Records, document No. 1, Article 26(h) also perused. Prima facie case is made out. Balance of convenience also in favour of the
petitioner. Hence, ad-interim injunction granted till 14.7.2010. Order 39 Rule 3 to be complied with. Issue notice to the respondent by then.
Being aggrieved by that, the first defendant/petitioner herein is before this Court.
4. Heard both.
5. Though the learned Counsel for the petitioner and first respondent made extensive submissions touching upon the merits of the case and also
regarding the legality of the order passed by the Court below, this Court is not going into the merits of the rival contentions. The civil revision
petition could be disposed of on a short ground.
6. Learned Counsel for the petitioner, by referring to the Articles of Association of the first defendant Association, submitted that Article 37
provides for settlement of disputes through arbitration and therefore, the suit filed by the first respondent herein is not maintainable. Learned
Counsel submitted that already, a similar suit was filed in OS. No. 4917 of 2010 by the second respondent herein and in that suit, though injunction
was sought, the same was not granted. Suppressing the aforesaid suit, the member of the second respondent Association has filed the present suit
and as such, the first respondent has no locus standi to file the suit. Learned Counsel submitted that the order passed by the Court below is not in
conformity with the provisions contained in Order XXXIX Rule 3 of the CPC (hereinafter referred to as the Code), as it does not contain reasons
to be recorded, while granting an order of ex parte injunction.
7. In support of the said contentions, learned Counsel for the petitioner has relied upon the following decisions:
(i) Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, wherein the Apex Court has laid down as follows:
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 or 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 Taylor v. Taylor (1875) 1 Ch D 426 : 45 LJ Ch 373 and AIR 1936 253 (Privy Council) . 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 Ramchandra
Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, . 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 factors, including as to how the object of granting injunction itself
shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff
should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1 at page 514, reference has been
made to the views of the English Courts saying:
Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....
An ex parte injunction should generally be until a certain day, usually the next motion day....
(emphasis supplied)
(ii) Morgan Stanley Mutual Fund Vs. Kartick Das, wherein the Supreme Court laid down as follows:
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 also be considered by the Court.
(iii) Andhra Social & Cultural Association v. Karuppan, R reported in (2000) II CTC 235 wherein the Apex Court laid down as follows:
The order passed by the learned Judge does not satisfy the requirement of Order 39, Rule 3, CPC. The Honourable Supreme Court as well as this
Court, in a series of decisions, have directed the subordinate Courts that they should pass speaking orders in terms of Order 39, Rule 3, CPC. In
all those cases, it has been held that the requirement is mandatory that before granting an injunction without giving notice to the opposite party, the
Court shall record reasons for its opinion and that the object of granting injunction would be defeated by delay.
(iv) Irin Stephen and 3 Ors. v. J. Musafargani reported in (2009) 3 LW 163 wherein this Court has laid down as follows:
What is challenged before this Court by the revision petitioners is that, a cryptic order of ex parte order of injunction has been passed by the trial
Court disregarding Rule 3 of Order 39, CPC and therefore, such an order is illegal and is to be set aside. I have already held that Rule 3 of Order
39 as a mandatory one and therefore, that should be followed in letter and spirit by the trial Court. When the trial Court decides to grant an ex
parte order of injunction under Order 39 Rule 1 and 2 CPC, the trial Court should mandatorily follow Rule 3 of the Code and if the subordinate
Courts do not adhere to this mandatory rule and pass ex parte orders of injunction by exceeding their limits and jurisdiction, the trial Courts need
to be restrained by this Court under Article 227 of the Constitution of India, to see that the trial Court is complying with the mandatory rules of the
procedure code. Therefore, I have no hesitation in holding that the order of the trial Court is illegal and accordingly, the same is set aside.
(v) State of U.P. and another etc. Vs. C.O.D. Chheoki Employees'' Co-op. Society Ltd. and others etc., wherein the Apex Court held as follows:
A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No
individual member is entitled to represent assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the
Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.
(vi) Dr. Devasayham, V. Rt Rev v. D. Sahayadoss reported in 2002 (1) CTC 458 wherein this Court held thus:
It is relevant to refer a decision of the Apex Court in State of U.P. Vs. District Judge, Unnao and Others, , wherein Their Lordships have held that
rigid and inflexible view of jurisdiction under Article 227 should not be taken. Their Lordships have also held that ''Article 227 or Article 226 was
devised to advance justice and not to thwart it. Even as early as in 1954 the Constitutional Bench of the Supreme Court in Waryam Singh and
Another Vs. Amarnath and Another, had held that the power of superintendence conferred by Article 227 is to be exercised most sparingly and
only in appropriate cases in order to keep subordinate Courts within the bounds of their authority apart from and independently of the provisions of
other laws conferring revisional jurisdiction on the High Court. It is also relevant to note the latest decision of the Supreme Court in Vadivelu Vs.
Sundaram and Others, regarding the revisional jurisdiction of this Court under Article 227 of the Constitution. In the said decision, Their Lordships
have held in para 26 that ''when there is error of jurisdiction or flagrant violation of the law laid down by this Court, by exercising the revisional
powers, the Court can set aside the order passed by the Tribunal to do justice between the parties.'' It is clear that error of jurisdiction or flagrant
violation of the law laid down by the Supreme Court can be set aside by this Court under Article 227 of the Constitution. As already referred to by
me, in the case of granting injunction without hearing the opposite party, it is mandatory on the part of the trial Court to record the reasons for its
opinion for granting such injunction. When the said condition is violated, I am of the view that in order to do justice between the parties, this Court
can interfere by exercising the revisional powers under Article 227 of the Constitution. The impugned order which is bereft of reason and laconic
cannot stand a moment''s scrutiny as ruled in Morgan Stanley Mutual Fund Vs. Kartick Das, . If it is held that the compliance with the proviso in
Rule 3 is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise. As observed by the Hon''ble
Supreme Court, 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 at all. Inasmuch as this condition has been violated by the learned Subordinate Judge, the
impugned order is liable to be set aside.
8. Learned Counsel for the petitioner submitted that though it is open to the petitioner to approach the Trial Court to get the interim order vacated,
when the order passed by the Trial Court is contrary to the mandatory provisions contained under Order XXXIX Rule 3 of the Code, it is open to
the petitioner to directly approach this Court under Article 227 of The Constitution of India.
9. Countering the said submissions, learned Counsel for the first respondent submitted that when an alternate remedy is available to the petitioner
under Order XXXIX Rule 4 of the Code to approach the Trial Court to get the interim order vacated, it is not open to the petitioner to by-pass
that remedy and approach this Court under Article 227 of The Constitution of India.
10. In support of his contentions, learned Counsel for the first respondent relied upon the following decisions:
i. A. Venkatasubbiah Naidu Vs. S. Challappan and Others, ;
ii. J. Uma Maheswari Vs. S. Peter, ;
iii. The Victoria Edward Hall v. M. Samraj reported in 2001 (3) CTC 129; and
iv. Shanita Holdings SDN, BHD, Malaysia v. Shanita Hotel Trichy Pvt. Limited reported in 2009 (2) CTC 210.
11. Learned Counsel for the first respondent submitted that in the other suits filed by some other associations against the petitioner herein, the
petitioner has submitted to jurisdiction of the Court and did not invoke the arbitration clause and hence, the petitioner is estopped from raising that
question in this suit. Learned Counsel further submitted that the Court below pointed out that the first respondent has established a prima facie case
and the balance of convenience is in favour of the first respondent and only after recording such reasons, injunction has been granted and as such,
the order does not suffer from any illegality.
12. I have considered the said submissions made by the learned Counsel on either side and perused the materials available on record.
13. At the outset, it has to be seen as to whether the order passed by the Court below satisfies the requirement of Order XXXIX Rule 3 of the
Code. In the considered view of this Court, the observation of the Court below that a prima facie case is made out and the balance of convenience
is also in favour of the first respondent cannot be considered to be the reason to be recorded under Order XXXIX Rule 3 of the Code. It has
been held by the Apex Court as well as this Court in a number of decisions that Order XXXIX Rule 3 of the Code is not obligatory, but is
mandatory. The proviso to Order XXXIX Rule 3 of the Code 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.
14. The party, who invoked 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 the Court has to consider briefly these factors in the ex parte order. Such
ex parte orders have far-reaching effect and as such, a condition has been imposed that Court must record reasons before passing such order. If it
is held that the compliance of 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 XXXIX 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. When 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 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 shall be defeated, if an ex parte order is not passed.
15. In this case, a perusal of the order passed by the Court below shows that it is bereft of reasons and it has not even referred to the brief facts of
the case to arrive at a conclusion that a prima facie case has been made out and the balance of convenience lies in favour of the first respondent. It
has not recorded that if the ex parte order of injunction is not granted, the object of granting injunction will be defeated and the plaintiff will be put
to great hardship, which cannot be compensated by costs. In the considered view of this Court, the order does not contain a single reason for
granting injunction.
16. As far as the contention as to the maintainability of the civil revision petition is concerned, learned Counsel for the first respondent mainly relied
upon the decision in the case of Venkatasubbiah Naidu, A. v. S. Challappan (reported in 2001 (1) LW 429). This decision has been elaborately
considered by His Lordship Mr. Justice P. Sathasivam (as His Lordship then was) in the decision reported in 2002 (1) CTC 458 (cited supra),
which has been extracted above. After considering the said decision and other number of decisions of the Apex Court, his Lordship has held that
when there is error of jurisdiction or flagrant violation of the law laid down by this Court, by exercising the revisional powers, the Court can set
aside the order passed by the Tribunal to do justice between the parties. His Lordship has further held that in the case of granting injunction without
hearing the opposite party, it is mandatory on the part of the trial Court to record reasons for its opinion for granting such injunction. When the said
condition is violated, I am of the view that in order to do justice between the parties, this Court can interfere by exercising the revisional powers
under Article 227 of the Constitution. In the light of the said decision, I am unable to countenance the submissions of the learned Counsel for the
first respondent. All the other decisions relied upon by the learned Counsel for the first respondent are also to the same effect and for the aforesaid
reasons, the contentions raised by him cannot be countenanced.
17. As the order sought to be revised in this revision does not satisfy the requirements of the proviso to Order XXXIX Rule 3 of the Code and the
said proviso 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,
inasmuch as this condition has been violated by the Trial Court, the impugned order is liable to be set aside.
18. Accordingly, the impugned order is set aside and the civil revision petition is allowed. The Trial Court is directed to dispose of IA. No. 11822
of 2010 in OS. No. 6164 of 2010 within one month from the date of receipt of a copy of this order. No costs. Consequently, the above MPs are
closed.
