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Jaisu and Co. Vs. Meera Agency and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR334
AppellantJaisu and Co.
RespondentMeera Agency and anr.
Cases ReferredP. Chidambaram v. Joint Civil Judge
Excerpt:
.....except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice to be given to the opposite party. 6. registrar is directed to circulate this judgment to the lower courts so that before granting an ad interim injunction the learned judges may follow the procedure prescribed under rule 3 of order 39 of the civil procedure code or in the case of urgency in exceptional cases apply their mind fully to the facts of the case before granting ex parte ad interim injunction......given to the plaintiff only.2. in the said suit opponent no. 1 filed an application exhibit-5 for interim injunction contending that if injunction as prayed for is not granted, he would suffer irreparable loss because he was having large establishment, number of persons were employed by him and he would be required to pay wages, provident fund and other things. he also contended that opponent no. 2 was likely to grant the contract in favour of some other person. that application was filed on 4-7-85.3. on the same day, without complying with the provisions of order 39 rule 3 the learned judge without bothering to apply his mind to the facts of the case stated by the plaintiff, granted ad interim injunction as prayed for till 15-7-85. in paragraph-8 of the said application exhibit 5 it.....
Judgment:

M.B. Shah, J.

1. Opponent No. 1 filed Regular Civil Suit No. 617/85 before the 4th Joint Civil Judge (J.D.) Jamnagar (Shri N.N. Naik.) wherein it was contended that the Port Vadinar is administered by Kandla Port Trust and shipping activities are carried on. Services of a tug for doing various shipping activities of off-shore oil terminal at Vadinar are required. Quotations for hiring of such tug were invited and the plaintiff was given such contract which expired in June 1985. It is his contention that thereafter extension was given for a month. During mat time the Trust invited quotations from various parties by giving an advertisement. The plaintiff had also given his tender amongst other parties. Ultimately the authorities have accepted the tender of the petitioner who is third party to the aforesaid suit. It is the contention of the plaintiff that without hearing him and giving any opportunity his contract was cancelled. He further alleged that some officers of the Trust had given promises that further contract would be given to the plaintiff only.

2. In the said suit opponent No. 1 filed an application Exhibit-5 for interim injunction contending that if injunction as prayed for is not granted, he would suffer irreparable loss because he was having large establishment, number of persons were employed by him and he would be required to pay wages, provident fund and other things. He also contended that opponent No. 2 was likely to grant the contract in favour of some other person. That application was filed on 4-7-85.

3. On the same day, without complying with the provisions of Order 39 Rule 3 the learned Judge without bothering to apply his mind to the facts of the case stated by the plaintiff, granted ad interim injunction as prayed for till 15-7-85. In paragraph-8 of the said application Exhibit 5 it was prayed by the plaintiff that the defendant or their agents or servants may not grant contract to anybody else and that the plaintiff should not be restrained by them from doing the contract work. It was also prayed that he should be permitted to do the contract work as he was doing on the date of application. The said paragraph reads as under:

This injunction was extended from time to time. Finally the third person i.e., the petitioner to whom the contract was given, filed the aforesaid revision application against the impugned order. On 30th July, 1985 the operation of the aforesaid order was stayed by me. Again at the request of the learned advocate for the petitioner the learned Judge was directed to pronounce the judgment on Exhibit 5 as it was mentioned before me that he had heard the arguments of both the parties. Finally by his judgment and order dated 12th August, 1985 the learned Judge has dismissed the application filed by the opponent No. 1 and has vacated the ad interim injunction.

4. Inspite of the fact that this Court had granted ad interim injunction staying the operation of the injunction order passed by him, the learned Judge has stayed the operation of the order dated 12th August, 1985 passed by him till 30th August, 1985 as stated by the learned advocate of the petitioner.

The Division Bench of this Court in the case of Jasmat Sangaji v. G.E. Board 23 (2) G.L.R. 104 has held that ordinarily the trial Court is required to pass an order under the provisions of Order 39 Rule 1 or 2 biparte because of the mandate of Rule 3 of Order 39 of the Civil Procedure Code. Further, in the case of P. Chidambaram v. Joint Civil Judge 26 (1) G.L.R. 353 the Division Bench of this Court speaking through Chief Justice, Poti as he then was, has held that Rule 3 of Order 39 of the Civil Procedure Code is a very wholesome provision intended to achieve a laudable purpose and that 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 to be given to the opposite party. The Court has further administered a caution and observed that because of delay in hearing the injunction applications irreparable damage can be caused by injunction. In paragraph 3 of the judgment the Court has pertinently observed that at the time of granting an ex parte injunction the Court should not act casually and in a cavalier fashion but pass orders only after adverting to all the facts and circumstances of the case. The said paragraph runs as under:

Rule 3 of Order 39 of the Civil Procedure Code is a very wholesome provision intended to achieve a laudable purpose. Admittedly injunctions by the Courts are not to be a matter of course and even while the injunctions operate only for a short time, i.e. until the other side appears and contests the matter, by that time damage would have been done and in some cases that be irreparable. There is also the fact that today the Courts are so overworked that even if the Court fixes the date for disposing of the injunction application after hearing the parties, it may not he able to do so in time. If that be so at the stage of granting an ex parte injunction, it should not act casually and in a cavalier fashion but pass orders only after adverting to all the facts and circumstance of the case.

In paragraph 4 the Division Bench expressed a doubt with regard to the propriety of the injunction order which was of omnibus nature passed without resort to Rule 3. In my view, the same is the position in this case. The learned Judge ought to have applied his mind and followed the law laid down by the Court.

5. In this particular case the learned Judge has not bothered to apply his mind to the fact that the plaintiffs contractual period was over and for some reason as alleged by him extension for one month was granted. But that does not mean that a right to carry on further work was conferred upon him even after the extended date. After the expiry of the contractual period, the court had no jurisdiction to grant the contract in favour of the plaintiff. At the most if the plaintiff finally proves that illegally his tender was not accepted and contract was not given to him and thereby he has suffered any damage, he could be compensated. The learned Judge has forgotten that by granting this type of injunction he has granted contract in favour of the plaintiff without deciding the matter and without considering merits of the case. In future it is hoped that the learned Judge would apply his mind properly before granting ad interim injunction and follow the procedure prescribed under Order 39 Rule 3.

As the learned Judge has passed final order on Ex. 5 this revision application does not survive and is rejected. Notice is discharged. It is clarified that at present the operation of the ad interim order granted by the learned Judge does not hold the field.

6. Registrar is directed to circulate this judgment to the lower Courts so that before granting an ad interim injunction the learned Judges may follow the procedure prescribed under Rule 3 of Order 39 of the Civil Procedure Code or in the case of urgency in exceptional cases apply their mind fully to the facts of the case before granting ex parte ad interim injunction.


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