Appeal Under Order 43 Rule 1(r) CPC Is Maintainable If Ex Parte Order of Injunction Is Granted Without Reasons: Karnataka HC
The Karnataka High Court has held that an Appeal of the CPC challenging an ex-parte order of injunction that was granted without reasons is maintainable.
The Court set aside the ex parte interim injunction granted by the Trial Court which restrained Bowring Institute (Appellant) from proceeding with the resolution in respect of the removal of the Respondent from the Institute's membership.
A Single Bench of Justice H.P. Sandesh observed, “Regarding first aspect is concerned, whether the appeal is maintainable under Order 43 Rule 1(r) of CPC, no doubt that when the ex parte temporary injunction is granted, the defendant has a right to file an application under Order 39 Rule 4 of CPC and seek for vacating the same. The court has to take note of indulgence of the Court while exercising the power under Order 43 Rule 1(r) of CPC.”
Advocate Manian K.B.S. represented the Appellant, while Advocate Vasanthappa appeared for the Respondents.
The Respondent, a life member of the Appellant Institute, filed a suit challenging a show-cause notice issued by the Appellant and the subsequent resolution recommending his removal for violating membership terms. The complaint stated that the Respondent used the swimming pool at late hours, contrary to Institute rules.
The Trial Court granted an ex parte injunction restraining the Appellant from passing any orders based on the resolution until the next hearing. Aggrieved, the Appellant filed the present Appeal under Order 43 Rule 1(r) of the CPC.
The Appellant argued that before granting an ad-interim temporary injunction to the Respondent, the Trial Court did not record the reasons for its opinion that the object of granting the injunction would be defeated by delay.
The High Court stated, “When the order of the trial court is in violation of fundamental principles of Order 39 Rule 3 of CPC, the court must assign the reasons and the word used in Order 39 Rule 3 is the court shall exercise the discretion and when the statue itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.”
“There is no compliance of Order 39 Rule 3 of CPC while passing such an order and no such reasons are given by the trial court except stating that perused the material on record and even for dispensing notice also, no such reasons are also made that if notice is issued it would defeat the very object and hence, the contention of the appellant counsel with regard to the violation of Order 39 Rule 3 is concerned is acceptable,” the Bench explained.
Consequently, the Court set aside the impugned Order of the Trial Court.
Accordingly, the High Court allowed the Appeal.
Cause Title: Bowring Institute v. Sarwik S. & Ors.