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industrial Credit and Development Syndicate Vs. B. Suryanarayana Bhat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 1529 of 1985
Judge
Reported inAIR1986Kant98; ILR1986KAR886
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 3
Appellantindustrial Credit and Development Syndicate
RespondentB. Suryanarayana Bhat
Advocates:G.V. Thimmappaiah, Adv. for ;Tukararn S. Pai, Adv.
Excerpt:
.....2(mm) is not violative of article 14 of the constitution. - order 39 rule 3 of the code of civil procedure reads as :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: party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated, by delay, and require the applicant -(a) 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 -(i) a copy of the affidavit filed in support of the application; ' in this..........on 25-3-1985 it had granted temporary injunction. 3. order 39 rules 1, 2 and 3 of the code of civil procedure are amended. order 39 rule 3 of the code of civil procedure reads as : - '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: provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite. party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated, by delay, and require the applicant - (a) to deliver to the opposite party, or to send to him by registered post, immediately.....
Judgment:

1. This is a defendant's appeal against the order dated 25-3-1985 passed by the Civil Judge, Mangalore, in O.S.99 of 1985, granting temporary injunction with notice.

2. The learned counsel Sri Thimmappaiah for Sri Tukararn S. Pai for the appellant, made grievance that initially the Court had issued only emergent notice and thereafter all of a sudden on 25-3-1985 it had granted temporary injunction.

3. Order 39 rules 1, 2 and 3 of the Code of Civil Procedure are amended. Order 39 rule 3 of the Code of Civil Procedure reads as : -

'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:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite. party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated, by delay, and require the applicant -

(a) 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 -

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the popies aforesaid have been so delivered or sent.'

In this case, unfortunately, though Rule 3 of Order 39 of the Code of Civil Procedure is a mandatory provision, the trial Court has failed to comply with the said provision. Passing of such an order, without complying with Order 39 rule 3 of the Code of Civil Procedure is highly opposed to law. It has come to the notice of this Court in large number of cases that Order 39 rule 3 of the Code of Civil Procedure is observed more in its breach rather than in its compliance. Order 39 rule 3 of the Code of Civil Procedure lays down the wholesome principle in order to see that the defendant is not put to any injustice and is not thrown out from the property for no fault of his own. However, I would like to impress upon the trial Courts that non-compliance with the mandatory provisions contained in rule 3 of Order 39 is a very grave error, which needs to be viewed seriously. I am sure that the trial Courts will not, hereafter at least, give any room for such lapses.

4. As the defendant has got an opportunity to file an application under Order 39 rule 4 of the Code of Civil Procedure to vacate the temporary injunction, I do not think it necessary to interfere with the order impugned in this case. The defendant is at liberty to file an application under Order 39 rule 4 of the Code of Civil Procedure for vacating the injunction. The defendant is at liberty to raise all objections, which he wants to raise, in an application to be filed under rule 4 of Order 39 of the code of Civil Procedure.

5. With these observations, the appeal is dismissed. No costs.

6. Appeal dismissed.


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