9911796707
TMI Blog2014 (8) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... er of status quo would be defeated by delay if notice was to be ordered on the opposite party i.e., petitioner herein. In fact the impugned order records submission of applicant s counsel before the trial Court, but in the absence of there being reasons as to why the expert order ought to have been allowed the impugned order is illegal and an arbitrary exercise of power by the learned trial Judge. In fact the impugned order is bald, laconic and bereft of any reason. In fact on a reading of the impugned order itis noted that in the absence of there being any reasons assigned for dispensation of notice to the respondent before the trial Court coupled with a fact that no reasons have been assigned as to how the applicant before the trial Court had made out a prima facie case there is in effect and substance, violation of the principles of natural justice. Had the petitioner herein who is the respondent before the trial Court known the reasons as to why there was dispensation of notice to it and as to what the grave situation was that the matter required an expert order then possibly petitioner herein could not have approached this Court on that aspect. Also, if there were reasons a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2 application invoking Order XXXIX Rule 1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure, 1908 (here in after referred to as C.P.C. for short) was filed. The prayer made in said application is as under For the reasons mentioned in the accompanying affidavit, the applicant herein Iprays that this Hon ble Court be pleased to byway of ad-interim temporary in junction restrain the respondent, their men, its agents workmen or any person acting through and all such persons claiming interest through them from in any manner interfering with the operations of the mining machinery deployed in the schedule property pending adjudication of the disputes between the petitioner and the respondent in the interest of justice. The trial Court took up the matter on 14.05.2014 and on that day I.A. Nos. I and II were taken up for consideration. I.A. No. I was with regard to grant of leave to applicant to file proceeding before the vacation Court, which was allowed. I.A. No. II is an ex-parte order, which is impugned in this writ petition. 3. This writ petition was listed before this Court on 23.07.2014 on which date notice was accepted on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appealable order under Order XLIII Rule 1 (r) of C.P.C. Therefore, petitioner ought to have availed the appellate remedy and not filed a writ petition invoking Article 226 read with Article 227 of the Constitution. In this regard, learned Senior Counsel referred to decisions of the Hon ble Supreme Court in A. Venkatasubbiah Naidu Vs. S. Chellappan AndOthers [(2000) 7 SCC 695] and Surya Dev Rai vs. Ram Chander Rai and Others [(2003) 6 SCC 675] 7.Having regard to the submissions made by learned Senior Counsel on both sides, the point that arises for my consideration is Whether this Court exercising jurisdiction under Article 227 of the Constitution of India ought to entertain this writ petition and if so, as to whether any relief ought to be granted to the petitioner herein? 8.The facts in this case are not in dispute. The respondent herein invoked Section 9 of the Act by seeking certain interim orders prior to the commencement of arbitration proceedings. It is in that context that along with the main application filed undersection 9 of the Act an interlocutory application I.A. No. II under Order XXXIX Rule 1 and 2 of C.P.C. was filed by respondent he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2012 to him, on the ground that, same is required to the petitioner for other proceedings and at this stage, it is ordered to return the original on being produced of its certified copy. Issue notice of this petition together with status-quo and notice of I.A. No. II to the respondent. Returnable by 25.06.2014. 9.On a reading of this order, learned Senior Counsel for petitioner at the outset submitted that in the first instance the order does not reflect the reasons as to why notice under the proviso to Rule 3 of Order XXXIX of C.P.C. has been dispensed with as no reasons are assigned. Secondly, the injunction has been granted for a period beyond 30 days at a stretch. It was contended that in the absence of there being any reason for issuance of an exparte order of status quo of the agreement dated 11.12.2012, rights arising from that agreement which endure to the benefit of both the parties have been curtailed. It was therefore contended that this Court having exercised the jurisdiction of the writ proceedings under Article 227, in similar matters, may quash the impugned order. 10. In the context of impugned order, learned Senior Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 38 has stated asunder 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as here under:- (1) Amendment by Act 46 of 1999 with effect from 01.07.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate courts to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 16. A bare reading of said Rule makes it clear that normally the Court before granting an injunction would direct notice of the application to be given to the opposite party. Exception is where it appears that the object of granting injunction would be defeated by delay and in such an instance the proviso applies where the Court is empowered to grant an ad interim injunction dispensing with notice, provided reasons are recorded for its opinion to the effect that the object of granting injunction would be defeated by delay if the notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt had made out a prima facie case there is in effect and substance, violation of the principles of natural justice. Had the petitioner herein who is the respondent before the trial Court known the reasons as to why there was dispensation of notice to it and as to what the grave situation was that the matter required an expert order then possibly petitioner herein could not have approached this Court on that aspect. Also, if there were reasons assigned which were erroneous then possibly petitioner herein could have assailed that order by way of an appeal by contending that reasons were erroneous. But in this case the impugned order does not give any reason as to how prime facie case was made out by respondent herein or for that matter what the balance of convenience between the parties was. In fact, status quo on the agreement entered into between the parties would mean that no further action on that agreement could be taken by either of the parties which goes to the very root of the matter as the entire dispute between the parties arises from the agreement between the parties. 19. In that view of the matter, the impugned order being bereft of reasons is liable to be quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the mandatory requirements under Order XXXIX Rule 3 of C.P.C. had not been complied with by the trial Court. Those decisions are squarely applicable to the present case. In that view of the matter, it is held that the writ petition is maintainable and that the impugned order being in violation of the mandatory requirements of Rule 3 of Order XXXIX of C.P.C. squashed. The order in Vedant Fashions Pvt. Ltd., vs. Smt. Rajul Devi [W.P. Nos.33158/2014 33300/2014] disposed on 11.07.2014 is also squarely applicable to the instant case. 22. It is stated that the petitioner herein has not filed its statement of objections to the main application and also to I.A. No.2. In the circumstances, parties are directed to appear before the trial Court, without insisting on any separate notice, on 01.09.2014. On or before that date petitioner shall serve copies of the objections to main petition as well as to I.A. on the respondents herein. The trial Court is directed to permit the respondents to file their re-joinder, if any, and thereafter to consider I.A. No.2 in accordance with law and dispose of that application expeditiously on or before15.09.2014. 23. In the result, ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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