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TMI Blog1987 (3) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the object of granting injunction would be defeated by the delay in serving such notice and, while granting such injunction ex parte, the court, shall record the reasons for its' opinion that the object of granting injunction would be defeated by such delay. Mr. Roy Chowdhury has accordingly urged that the impugned order of ex parte injunction is bad as no such opinion or any reason therefor has been recorded by the trial Judge. It is true that the relevant Proviso to Rule 3, as inserted by the Amendment Act of 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundul (1867) 11 Moo Ind App 345 at 368, operate as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , , where Das Gupta, J., speaking for the Court, ruled (at 1529) that the provision requiring recording of reasons in Rule 27(2) is not mandatory and the failure to do so would not vitiate reception of evidence if such reception was otherwise justified under the Rules. We have no doubt that the ratio in K. Venkataramiah (supra) would go the full length to fortify our view that the provision relating to recording of reasons for granting ex parte injunction, as required by Rule 3 of Order 39 of the Code, though couched in imperative form, is not mandatory in substance and if we overturn an otherwise justifiable ex parte order of injunction solely on the ground of omission to record reasons, we would be giving undue preference to mere form ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lis pendens as enacted in Section 52 of the T. P. Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim! injunction restraining the transfer of suit property. Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case. 5. Mr. Mukherjee, appearing for the respondents has drawn our attention to an old Division Bench decision of this Court in Promotha Nath v. Jagannath, (1913) 17 Cal LJ 427 where it has been observed that a Court will in many cases interfere and preserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the plaintiffs 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. And when so taken, the allegations, in our view, make out a case for ad interim injunction. As and when such show cause would be filed by the defendant and the plaintiffs application for injunction would be taken up for final hearing, the learned trial Judge would obviously consider such show cause and all such materials as would then be available to him and would come to his own finding as to whether a case for temporary injunction till the disposal of the suit has or has not been made out and he should do so being wholly uninfluenced by any observation made by us heirein as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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