Dilemma between Filing an Appeal vs. Order 39 Rule 4 Application in Injunctions Granted Under Order 39 Rules 1 and 2

26th March, 2020 - 10:34 am Categories: Legal Issues 0 Comments

The efficacy of substantive laws depends, to a large extent, upon the quality and clarity of the procedural laws. Unless the procedure for enforcing rights is simple, effective, expeditious, inexpensive and unambiguous, substantive laws, however well they may have been drafted, would fail in their purpose and object. As observed by Sir Henry Maine, “Procedure should indeed be the handmaiden of justice; its motto should be that of the Prince of Wales, Ich dein (“I serve”). The cardinal fact is admitted, but often been over looked in practice.

To begin with the analysis, as to why this fact is overlooked in practice, we will draw reference to the rules of natural justice which demand that when an application under order 39 Rules 1 and 2, C.P.C. is made before a court, the person(s) against whom the relief is sought for must be given an opportunity of being heard. But, sometimes a situation/circumstance may demand immediate interference of the court to pass an order, which if not passed may occasion failure of justice and would defeat the very purpose of making such application. In such a situation, the Court may proceed to entertain the application for interim injunction filed under Order 39 Rules 1 and 2, C.P.C. before issuance of notice to person(s) against whom the relief is sought for. Accordingly, an ex-parte ad interim order of injunction is passed in exercise of power conferred under Order 39 Rules 1 and 2, C.P.C. For the progression of this article, let’s assume an order under 39 Rule 1 and 2 CPC has been passedagainst you.

You start looking at possible relief’s available under the statute (CPC) wherein you discover the two primary solutions to proceed procedurally:

Order for injunction may be discharged, varied or set aside under order 39 Rule 4 which states as follows:

Any order for an injunction may be discharged, or varied, or set aside by the Court, on an application thereto by any party dissatisfied with such order :
Provided that if in an application for temporary injunction or in any affidavit supporting such application a party his knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is riot necessary so to do in the interests of justice :Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.

Appeals from orders which state as follows:

An appeal shall lie from the following orders under the provisions of section 104, namely:(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;

The question now arises is, which provision of procedural law should onepursue to get the desired relief of setting aside an ex-parte ad interim order of injunction is passed in exercise of power conferred under Order 39 Rules 1 and 2, CPC.

The full bench of the apex court (AIR 1970 All 376, Zila Parishad, Badaun&Ors. v. Brahma Rishi Sharma) has held:-

“ that against an ex parte order granting temporary injunction the aggrieved party has two options; either to approach the same courti.e (Order 39 Rule 4), who had passed ex parte order for any relief or to file an appeal under Order 43 Rule 1 of the Code.”

The aforesaid principle stood firm in the case of Subhas Mohan Dev’s case (supra), once again a full bench of this Court in (1984)1 GLR 133 : has laid down the law on the subject in the following words:-

“If an order of ad interim injunction is passed under Order 39, R.1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as O. 43, R.1 (r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer on appeal. In our opinion, therefore, the Court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under O.1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against such orders. In our opinion, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim, are appealable, if rendered under O.39, Rr.1 and 2. On perusal of Order 43, R.1(r) we notice that it speaks that an appeal shall lie from an “order” under R.1, R.2-A, R.4 and R.10 of Order 39. Therefore, any order under Rr.1, 2, 2-A and 4 is appealable. However, there is a line of decisions in which it has been held that an ex parte or ad interim order of injunction under O.39, Rr.1,2,2-A is not appealable as it is temporary or ex parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under O.39, R.4 of the Code. An ex-parte non-speaking temporary or ad-interim order of injunction is revisable but it is not appealable, although the characteristics of the impugned order are absolutely the same both in O. 39, R.4 as well as in O. 43, R.1(r), seems to be irreconciliable. If it is an order of injunction, it is appealable as well. Similarly, if it is an order of injunction it is revisable under O.39, R.4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view.

Thus it was made aptly clear by the two full benches of the Apex court that one may proceed procedurally through either provision of law. Upholding the guiding principles of the Hon’ble Supreme Court, its judges started implementing the precedent set by the full bench. Justice J. Thomas in the matter of A. Venkatasubbiah Naidu -v- S. Chellappan and others, reported in AIR 2000 SC 3032, while dealing with similar situation held the following observations:

1. “Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief .”
2. “Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code.”
3. You conclude Rule 1(r) of Order 43 does not say that an appeal shall lie from a final order under Rule 1 or Rule 2 of Order XXXIX. No adequate reason is shown for interpreting the word ‘final’ before ‘order’ in Rule 1 (r). Courts do not ordinarily make additions in enactments. That is a legislative function.

Thus as a practicing lawyer the language and the object of Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39. C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same court.

It is a law under Rule 3 A Order 39 which states that a court to dispose of application for injunction within thirty days- Where an injunction has been granted without giving a notice to the opposite party, the court shall make an endevour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable to do, it shall record its reasons for such inability.

(In Ratna Commercial Enterprises : FAO (OS) No.206/2007 IN CS(OS) No.570/2007.)

Appearing for the defendants Mr. A.S.Chandhiok learned senior counsel submits that the non-disposal of the application under Order 39 Rule 4 filed by the defendant on 3.4.2007 within 30 days contravened the mandate of Order 39 Rule 3 A CPC. Consequently, the defendants were entitled to file the present appeal against the impugned order. He places reliance upon the judgment of the Hon’ble Supreme Court in A.Venkatasubbiah Naidu v. S.Chellappan AIR 2000 SCC 3032. He next submits that the ad interim ex parte injunction granted ought to be vacated for several reasons.

 “The aforesaid rule casts a three pronged protection to the parties against whom the ex parte injunction order was passed. First is the legal obligation that the court shall make an endeavour to finally dispose of the application of injunction within the period of 30 days. Second is, the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing.”

The upshot of the above delineation of the law by the Hon’ble Supreme Court is as under: (i) In the exceptional circumstances where a Court is unable to dispose of the application Under Order 39 Rule 4 within 30 days “It shall record its reasons for such inability”; (ii) If the court does not dispose of the application then notwithstanding the fact that the order is not appealable in terms of Order 43 Rule 1, the aggrieved party shall be entitled to the right of appeal; and (iii) When such an appeal is filed “the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the court in complying with the provisions of Rule 3A.”

Author:  Vibhor Gupta, Senior Associate at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at  vibhor@khuranaandkhurana.com.