1. The point to be answered in this writ petition filed under Article 227 of the Constitution of India is :

“If the plaintiff who has secured an exparte order of temporary injunction fails to comply with requirement of clauses (a) and (b) of proviso to Order 39 Rule 3 CPC, should the court vacate the order of temporary injunction”

2. Given a look at the events that led to this writ petition being filed, the Additional City Civil Judge, (CCH- 74), Bengaluru, in O.S.25288/2023, a suit for damages in relation to alleged defamation, passed an exparte order of temporary injunction on 23.2.2023 against defendants 1, 2 and 4 to 60 and directed respondent no.1 who is the plaintiff in the suit to comply with requirement of clauses (a) and (b) of proviso to Rule 3 of Order 39 CPC. The plaintiff filed an affidavit before the court reporting compliance, but there was no compliance as regards the petitioner herein, who is defendant no.60 in the suit. After she received the suit summons and appeared before the court on 7.3.2023, she brought to the notice of the court by filing a memo that there was no compliance and requested the court not to extend the exparte temporary injunction. The plaintiff, while seeking extension of the interim order filed a memo stating that she could not comply with requirement of clauses (a) and (b) of Order 39 Rule 3 due to inadvertence, but however stated in the memo that on 27.2.2023, she sent to defendant no.60 the intimation of grant of exparte order in her favour. In spite of coming to know about non-compliance within twenty four hours, the trial court extended the interim order on 7.3.2023. The order of extension is challenged in this writ petition.

3. I heard the argument of Sri.Madhukar Deshpande, learned advocate for the petitioner-defendant no.60, and Sri. P.N.Rajeshwara, learned advocate for respondent no.1-plaintiff.

4. The argument of Sri. Madhukar Deshpande was, the compliance to be made in accordance with clauses (a) and (b) of proviso to Order 39 Rule 3 is mandatory. The intention behind mandating the compliance is to bring to the notice of the defendant about the exparte order of temporary injunction passed against him. Compliance must be reported on the day the order is granted or on the day immediately following. If compliance is not reported, the court should not extend the interim order, and it must be vacated as has been held by the Supreme Court in its judgments in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others [(1993) 3 SCC 161] [LQ/SC/1993/444] and A. Venkatasubbiah Naidu Vs. S. Chellappan and Others [(2000) 7 SCC 695] [LQ/SC/2000/1396] and the High Court of Delhi in the case of Moserbear India Ltd., Vs. Modern Cinema [2010 (117) DRJ 545].

5. Sri. P.N.Rajeshwara argued that while compliance as envisaged in Order 39 Rule 3 was mandatory, its non- compliance would not necessarily result in exparte order to be vacated or discontinued; its only effect would be that the plaintiff is rendered to such a position as he cannot initiate action for the disobedience of the order, and in support of this proposition he placed reliance on the decision in Venkatasubbaiah Naidu (supra) and of the High Court of Bombay in Vascon Engineers Limited Vs. Sansara Hotels India Pvt. Ltd., [LAWS (BOM)-2009- 4-63].

6. I have considered the points of arguments.

7. Rule 3 of Order 39 deals with the procedure to be followed by the court once an order of temporary injunction is sought under Rules 1 and 2 of Order 39. It is better to extract Rule 3 here:

“3. Before granting injunction, Court to direct notice to opposite party.- 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 copies aforesaid have been so delivered or sent.”

8. Given an analysis, the general rule apparent is that whenever an application for temporary injunction is made, notice of it must be given to the opposite party. The words “in all cases” have significance and conveys a meaning that issuance of notice to the opposite party is a must. But in an exceptional case, that means if the party applying for injunction makes out a case of extreme urgency and the delay on account of time consumed in service of notice would have the effect of defeating the very purpose of claiming the order of temporary injunction, court can grant an order of temporary injunction which is usually called ‘exparte order’. In case court decides to grant exparte order, it also directs compliance under clauses (a) and (b) of the proviso to Rule 3. The reason behind directing compliance is quite obvious, it is with a view to bringing to the notice of the party about the order passed against him so that he can take immediate action to get that order modified or vacated or set aside or oppose the continuance of that order. The compliance to be made under clauses (a) and (b) is mandatory, for action as envisaged under Rule 2A of Order 39 can be initiated for violation or disobedience of the order provided the opposite party is communicated of the order. What happens if there is no compliance In my considered opinion, if there is no compliance, exparte order of temporary injunction will not come into effect at all; and the moment non-compliance is brought to the notice of the court the order must be vacated, the reason being that a party who fails to perform mandatory requirement loses his right to seek continuance of the order.

9. The judgment of the High Court of Bombay in Vascon Engineers (supra), in my opinion does not support the argument of Sri. P.N.Rajeshwara.

10. After referring to the judgment of the Supreme Court in Venkatasubbiah, the High Court of Bombay observed as below:

“25. The effect of the injunction order not being intimated to the other side by failure to comply with the requirement in the proviso to Order 39, Rule 3 would mean that the advantage cannot be taken of such an order by the applicant.”

11. In Shiv Kumar Chadha, the scope of Rule 3 Order 39 CPC arose for discussion before the Hon’ble Supreme Court. In para 34, following are the observations:

”34…….…..In respect of some of such provisions it has been held that they are required to be complied with but non- compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor. (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 [LQ/PC/1936/58] . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 [LQ/SC/1975/97] .”

12. A. Venkatasubbiah also deals with akin situation of non-compliance in para 15 of the judgment which is extracted here.

“15. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.”

(emphasis supplied)

13. The High Court of Delhi, in its judgment in Moserbaer India Ltd., in the context of a situation where non-compliance was reported, vacated the exparte order observing as below:

“41. In the recent order passed by this Court on 16th September, 2009 in the case titled AGI Logistics Inc. and Anr. Vs. Mr. Sher Jang Bhadhur and Anr., 163(2009)DLT137, it has been observed in paragraph 14 as under :

"14. If the Court were to take a lenient view and not insist on strict compliance with the mandatory requirement of Order XXIX Rule 3, then it would be possible for most Plaintiffs to continue to enjoy an ad interim ex parte stay in their favour for any length of time and plead genuine mistake by their counsel for non-compliance. Numerous suits accompanied by applications seeking urgent ex parte reliefs are filed in our courts everyday. The court, on a perusal of the documents filed before it, forms a prima facie view for grant of an parte ad interim injunction against the opposite party, even in the absence of the opposite party. The Court at that stage has no means of knowing what the version of the opposite party is. The court, therefore, makes such interim order both time bound and conditional. The condition is that there must be compliance with Order XXXIX Rule 3 CPC within the time specified by the court. Although Order XXXIX Rule 3(b) CPC requires the filing of an affidavit of compliance 'on the day on which such injunction is granted or on the day immediately following that day', this Court has been granting a longer time accounting for the fact that the certified copy of the order passed by the court may not be available on the same day or even on the next date. However, there is no question of the Plaintiff not being required to comply with the mandatory requirement of Order XXXIX Rule 3 CPC within the time granted by the Court. In the considered view of this Court, a strict compliance with the mandatory requirement of this provision must be insisted and any laxity shown to parties might well defeat the very purpose for which such provision has been inserted."

42. This Court is in full agreement with the decision passed in the AGI Logistics case (supra) and is of the considered opinion that the ex-parte injunction in the present matter should be vacated on this account also. After considering the matter in totality, I am of the considered view that the interim order granted on 19th February, 2008 cannot be sustained and the same is, therefore, vacated. Consequently, the plaintiff’s application being I.A. No.2196/2008 under Order XXXIX Rule 1 & 2 CPC is dismissed and the defendant’s application being I.A. No.3224/2008 under Order XXXIX Rule 4 CPC is allowed. Both the applications are disposed of accordingly.”

(emphasis supplied)

14. Therefore the legal position becomes clear that exparte order of injunction has to be vacated if there is no compliance as mandated in Rule 3 Order 39 CPC. The argument of Sri. P.N.Rajeshwara that the order remains in force, but no action for disobedience can be initiated in case of failure to comply with Rule 3, cannot be accepted. In the light of the judgments of the Supreme Court in Shiv Kumar Chadha and A. Venkatasubbiah Naidu, the decision of the Bombay High Court in Vascon Engineers Ltd., does not help the plaintiff.

15. In the case on hand the plaintiff has admitted non- compliance concerning defendant no.60. The trial court should not have routinely extended the interim order when its attention about non-compliance was drawn. Therefore the impugned order dated 7.3.2023 stands vacated as it relates to the petitioner – defendant no.60 only. Writ petition is therefore allowed.

16. However it is made clear that this order does not come in the way of disposal of the application for temporary injunction on its merits after hearing the parties.