CPC Case Brief – Venkatasubbiah Naidu v. S. Chellappan

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Facts: Plaintiff claimed to be a lessee of a property and alleged that respondents 1 to 5 were trying to dispossess him. The judge of the city civil court of Chennai passed an interim injunction order ex parte against the respondents under Order 39 rule 1 on the 29th June, 1999 and sought notice by the aggrieved to finally dispose off the matter by the 25th August, 1999. Then the 1st respondent on behalf of himself and other respondents filed a revision petition invoking Article 227 of the Constitution. The High Court of Madras disposed the revision and observed that the trial court should not have granted an order of injunction which would operate beyond 30 days as this is impermissible under order 39 rule 3A. The court therefore set aside the order of injunction ”for the clear transgression of the provisions of law”.

Issue:

Whether the High Court should have entertained a petition under 227 when there were two remedies statutorily available to the respondent (First, the respondent could have approached the trial court for vacating the ex parte order and second, an appeal could have been preferred)?

What would be the position if a court which passed the ex parte injunction did not record reasons thereof and did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39?

Whether the trial court could pass an ex parte injunction beyond 30 days?

Holding:

  • The trial court ought not to have granted ex parte injunction beyond 30 days to be in force as specified in Order 39 Rule 3A. The rule does not say that the period of injunction order should be restricted by the court to 30 days at the 1st instance, but the court should pass the final order on it within 30 days from the day on which the injunction was granted. However, the order does not become illegal merely because it was not restricted to a period of 30 days or less.
  • In a case where the mandate of order 39 rule 3A of the code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force. In such appeal, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate courts in complying with the provision of Rule 3A.
  • Failure to decide the application or vacate the ex parte temporary injunction shall for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction on the date of expiry of thirty days mentioned in the rule.
  • Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognized principle which gained judicial recognition that the HC should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.

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