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Amiya Prosad Vs. Bejoy Krishna Chakraborty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 854 of 1980
Judge
Reported inAIR1981Cal351
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 3
AppellantAmiya Prosad
RespondentBejoy Krishna Chakraborty and ors.
Advocates:S. Das Gupta and ;Amar Nath Shaw, Advs.
Cases ReferredR.H. Baddam v. Dhunput Singh
Excerpt:
- .....shebaits of sri sri iswar satbhai kalimatar ashram. on the plaintiff's prayer, the learned munsif passed an interim order for temporary injunction re-straining the defendant no. 1 in that respect. it was stated that the matter was urgent and hence interim order was passed. against that order, by which the player for ad-interim in junction was allowed, an appeal was preferred. the same was dismissed and hence this revisional application. 2. mr. das gnpta has made a short submission. it has been contended that previously the law was the same in this respect because in urgent matters injunction could not be issued in the defendant's absence without strong and grave reasons. the case of r.h. baddam v. dhunput singh in (1897) 1 cal wn 429 at p. 431 has been cited to show that an injunction.....
Judgment:
ORDER

B.N. Maitra, J.

1. The plaintiff filed an application for temporary injunction restraining the defendant from offering the seva puja or doing any duty of the shebaits of Sri Sri Iswar Satbhai Kalimatar Ashram. On the plaintiff's prayer, the learned Munsif passed an interim order for temporary injunction re-straining the defendant No. 1 in that respect. It was stated that the matter was urgent and hence interim order was passed. Against that order, by which the player for ad-interim in junction was allowed, an appeal was preferred. The same was dismissed and hence this revisional application.

2. Mr. Das Gnpta has made a short submission. It has been contended that previously the law was the same in this respect because in urgent matters injunction could not be issued in the defendant's absence without strong and grave reasons. The case of R.H. Baddam v. Dhunput Singh in (1897) 1 Cal WN 429 at p. 431 has been cited to show that an injunction cannot be issued in the defendant's absence unless there are strong and grave reasons. This has since been clarified in Rule 3 of Order 39 of the Code of Civil Procedure. A proviso has been added that where it is proposed to grant an injunction without giving a notice of the application to the opposite party, the Court shall record the reasons for its opinion that the abject of granting the injunction would be defeated by delay. This mandatory provision has not been complied with. The learned Munsif gave no reasons to bring this case within the exception provided for in the aforesaid Rule 3 of Order 39 of the Code. Moreover, in the facts of the case, there is no reason to hold that in view of the urgency of the matter and specially when the object of granting injunction would be defeated by delay, the interim order of injunction was required to be issued. Since that was not done, an illegal order has been passed. Since the order is illegal, it is not necessary to enter into the merits of the case.

3. The Rule is made absohite and the impugned order set aside. There will be no order as to costs.


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