TMI Blog2002 (7) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... and copy was also served on the learned counsel appearing for the other side on the very first day when the matter was taken up and the same is also on record. 5. The Bengal Club Limited, an existing Company within the meaning of Companies Act, 1956 having its registered office at Premises No. 33B, Chowringhee Road, Kolkata 700 016 (hereinafter called the said Club) is the appellant before us. The said Club is the sole defendant in the Title suit No. 23/2002 filed by Susanta Kumar Choudhary, a member of the said Club. 6. The said suit was filed by the plaintiff/respondent before the 9th Court of Civil Judge, Senior Division, Alipore, 24 Parganas (South) on 19th of June, 2002 praying for declaration and injunction and also praying for an ad interim order of injunction restraining the holding of Annual General Meeting (hereinafter called the AGM) of the said Club in its registered Office on 21st June, 2002. 7. On such application being made the learned trial Judge heard the matter ex parte on 19th June, 2002 and 20th June, 2002 and ultimately by the order under appeal dated 20th June, 2002 the Learned Trial Judge passed the ad interim order of injunction in terms of prayers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junction petition it is apparent that the plaintiff had notice of the AGM well in advance but he chose to approach the Court at the last moment for the purpose of obtaining an ex parte ad interim order in order to stall the holding of the AGM. It has also been stated with reference to the impugned order, that the learned Trial Court had not considered the question of balance of convenience and prima facie case in this matter in its proper perspective. 11. Moreover it has been argued that the plaintiff indulged in suppression of a material fact which is clear from supplementary affidavit filed in this case and the learned Judge passed the ad interim order of injunction without notice and without following the requirement of Order 39 Rule 3 and not following the repeated pronouncements of Supreme Court in two decisions which were cited before us to which we shall refer to in due course. 12. The learned counsel for the plaintiff/respondent on the other hand, repeatedly urged that this Court has very limited power of scrutiny at this stage of hearing an appeal from an ad interim order. The learned counsel submitted that the Court below has just granted an ad interim order and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel, consider anything except the injunction petition and the plaint filed by the plaintiff. 18. In support of the said contention the learned counsel relied on two decisions of this Court. This Court proposes to examine those two decisions first before going into any other question. 19. Of those two judgments the first one is a Division Bench Judgment in the case of Muktakesi Dawn v. Haripada Mazumdar reported in AIR 1988 Calcutta 25. In the said decision the Court was considering an appeal from ex parte ad interim order of injunction issued by the District Court. The said appeal arose out of a suit for specific performance of sale in respect of the suit property in which an ad interim order of injunction was issued restraining the defendant from selling the property to a third party. The appeal was against the said grant of ad interim order of injunction. Two points were argued on behalf of the appellant namely that in view of the doctrine of ?lis pendens' under Section 52 of the Transfer of Property Act, such an interim order of injunction is unnecessary. Secondly it was also argued that while granting ex parte ad interim order of injunction the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non compliance there with 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 with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Muktakeshi. 28. This Court is in respectful agreement with the aforesaid pronouncement in Supratik Ghosh and cannot follow the contrary pronouncement by another Bench in the case of Muktakeshi AIR 1988 Cal 25 in view of the Supreme Court's judgment and the provision of Article 141 of the Constitution. 29. In Muktakeshi, the learned Judges, apart from deciding two points mentioned above, made a passing observation in Paragraph 6 on which reliance was placed by the learned counsel. Those observations are: The defendant has not as yet filed his show cause against the plaintiff's application for injunction and, therefore, at this stage, all the statements made in the application will have to be accepted as true modo et forma. 30. Relying on these observations the learned counsel submitted that at this stage the Court shall confine itself only to the averments made in injunction petition before the Court below and ignore the supplementary affidavit. 31. This Court is of the view that this observation made in Paragraph 6 do not form any part of the ratio of the judgment in Muktakeshi as the ratio of the said judgment has already been indicated. Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction the appeal Court must confine itself to the averments in the injunction petition. In Para 17 of the said judgment the learned judge held that a person who is aggrieved by an ad interim order of injunction, has three remedies. He can (i) file his written objection in answer to the show cause notice and there he may put forward his defence for vacating the injunction order or (ii) can file an application under Order 39, Rule 4 of the Code for variation or vacation of the interim order or (iii) he may prefer an appeal before the appellate Court under Order 43, Rule 1, Clause (r) of the Code. This Court is in respectful agreement with this part of the judgment. But after saying so, the learned judge held : But if he decides to choose the above mentioned remedy by way of an appeal before filing written objection or application under Order 39 Rule 4 of the Code,he must be prepared to accept all statement made in the application for temporary injunction to be true and he should persuade the appellate Court that even if the allegations of the other side are true, the trial Court ought not to have granted an ad interim order of injunction.But without showing cause as ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, cannot, for the reasons aforesaid, accept that part of the conclusions in Para 17 in Jitesh Pandey which have been extracted above. This Court respectfully differs from the same. 38. The question of pleading is of great importance in the context of an ex parte application for injunction. At that stage proceedings before the Court rest on the basis of total good faith on the pleadings. At that stage there is no contested hearing, therefore, the party making the prayer for ex parte ad interim order of injunction must plead the entire facts of the case. Such pleading must be clear, complete and candid. Therefore if in a given case a party obtains an ex parte ad interim order of injunction from the Court on the basis of pleadings which do not disclose the correct state of facts with sufficient candour and clarity and if against such an order an appeal is filed before the appellate Court, this Court fails to understand why the appellant filing such appeal should accept the pleadings of the plaintiff at the ex parte stage as sacrosanct and cannot point out before the appeal Court that the plaintiff before the Trial Court suppressed facts. 39. Principles on this aspect have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat relevance. But we are sorry to say that in practice these principles are honoured more by their breach than by observance. 43. Having regard to the importance of pleadings at this stage, if the appellant can establish before the appeal Court, that the pleadings in the Court below do not follow the aforesaid standard, in our considered view, he is under no obligation imposed by any law to accept the pleading of his opponent at the trial Court as true and correct. If the principles in Jitesh Pandey, (2000 (2) Cal HN 856) are accepted, then, apart from the fact that they will have the effect to stultifying the right of appeal, it would also amount to putting a premium on pleadings which are otherwise deceptive and dishonest. No Court should follow such a practice which is not warranted either by law or in equity. 44. We are taking this view having regard to the wide powers of the appeal Court under Order XLI Rule 33 of the Code. The width of the power of the appeal Court has been considered recently in two judgments. In the case of State of Punjab v. Bakshish Singh reported in (1998) 8 SCC 222 : AIR 1999 SC 2626, the learned Judges of the Supreme Court, while considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proached, must have regard to the following. Invariable, suits are filed seeking to injunct either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The Court is approached at the last minute. Could injunction be granted even without notice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order. Therefore, the Court must ensure that the plaintiff comes to Court well in time so that notice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the Court in the grant of ex parte injunction and the rulings of this Court must be borne in mind. 51. The following reasons have been set in previous Paragraph 36 in Morgan Stanley. They are (para 19 of SCW) : As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are :- (a) whether irreparable or serious misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the members of the Club. The majority members of the Club are not before him. Therefore, the learned Judge had no right to assume that he was exercising his discretion to protect the interest of the majority members. 57. This Court also finds that the balance of convenience or inconvenience of issuing such an order on 20th June, 2002 which is the day before the date of AGM was not at all considered by the learned Judge. 58. Therefore, this Court, for the reasons aforesaid, is compelled to stay the said ad interim order till the hearing of the injunction petition. Thus both the appeal and the application are disposed of with the certain directions. But one thing is made clear that the observations and findings on the particular facts of this case are all tentative and the learned trial Judge need not be influenced by those while hearing the injunction petition or the suit. 59. This Court gives the following directions : 1) The appellant before us shall file its objection to the injunction petition pending before the Court below by 8th July, 2002 and the plaintiff/respondent shall file his reply to the said objection by 12th July, 2002. The Court below must make all ..... 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