The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1663 of 2025 Purna Chandra Maharana …. Petitioner
Legal Reasoning
Represented by Adv.– Mr. Sudhansu Sekhar Jena, Advocate -Versus- Prakash Narayan Sundaray and Others …. Opposite Parties CORAM: HON’BLE THE CHIEF JUSTICE
Decision
ORDER 14.11.2025 1. An ex parte ad interim order of injunction passed by the trial Court is sought to be recalled and/or varied by taking a circuitous route of the provisions contained under Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (in short, CPC). 2. Learned counsel appearing for the petitioner appears to have been under a misconception that Order XXXIX Rue 3 of CPC postulates an application to be taken out and no ex parte order can be passed by the Court. This Court is unable to comprehend the conception of law, more particularly, whether any application under Order XXXIX Rule 3 of CPC is permissible ? The said provision casts duty on the Court to invite the objection upon Page 1 of 5 giving a notice to the defendant before it proceeds to pass any injunction with a rider that in the event the non-granting of injunction would be defeated by delay and it will cause injustice, the Court may pass any ad interim order upon recording the reason, which is mandatory in nature. The reliance is further placed on Order XXXIX Rule 3A of the CPC which was inserted by virtue of an amendment having brought in the year 1976 postulating that in the event the Court grants an ex parte ad interim order of injunction, the endeavour must be shown to dispose of the same within thirty days. There is no quarrel to the language employed in the said provision. It contained the word „shall‟ which, in an ordinary sense, has a mandatory character, the same is not an inflexible rule at times the word „shall‟ can be used as „may‟ and vice-versa. 3. Be that as it may, the language suggests that an endeavour shall be shown to dispose of the application within thirty days which cannot be interpreted that the Court is mandated to dispose of the said application within thirty-days. It will again further such notion from the subsequent words used in the said provision that in the event the same cannot be disposed of, the Court must record Page 2 of 5 the reason for such inability. The moment the Court is unable to dispose of the application, it is mandated therein that it must record a reason which therefore, stultifies the stand taken by the learned counsel for the petitioner that 30 days is inflexible and the Court is bound to dispose of the same. This Court does not find that there is any illegality in the order. 4. A judgment of the apex Court rendered in the case of A. Venkatasubbiah Naidu vs. S. Chellappan and others reported in AIR 2000 SC 3032 is relied upon in support of the contention that if the injunction application is not disposed of within thirty days having passed ex parte, it is the duty of the Court to immediately recall the said injunction order. This Court does not find the aforesaid principles have been laid down in the said judgment. In paragraph 17 of the aforesaid judgment, it is held that an endeavour must be shown by the Court to dispose of the application and in the event it cannot be disposed of, the Court must record the reasons thereof in writing, in the following: “17. The aforesaid Rule casts a three-pronged protection to the party 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 thirty days. Second is, the legal Page 3 of 5 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.” 5. It is further highlighted that once the Court has granted the injunction, attempt must be made as it causes a greater injustice to the other side and at times the order may cause an immense sufferance to the other side, in the following: “18. What would happen if a court does not do either of the courses? We have to bear in mind that in such a case the court would have bypassed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the court is empowered to bypass the said protective measure. Second is the statutory obligation cast on the court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the court can bypass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. 19. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal Page 4 of 5 notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.” 6. The observations made in the said judgment though relevant on the procedure to be adopted by the Court in disposing of the application for temporary injunction within the time stipulated in Order XXXIX Rules 3A but does not in absolute terms create any brindle or any right has accrued to the defendant to seek automatic cessation of the said injunction order as the temporary injunction application has not been disposed of within thirty days. The Court does not find that the contention of learned counsel for the petitioner is entertainable in this regard. 7. The instant application is, thus, dismissed. Chief Justice ( Harish Tandon ) SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 27-Nov-2025 13:16:37 Page 5 of 5