P L D 1966 Dacca 468 (PLP)

A. S. CHOWDHURY, J.‑This revisional application is directed against an order made by the learned Subordinate Judge, Additional Court, Chittagong, on 15‑2‑65, in Miscellaneous Appeal No. 115 of 1964, reversing that of the learned Munsif, 1st Court, Satkania, in Title Suit No. 122 of 1963 on 7‑3‑

64. Plaintiff instituted a suit claiming title to and possession in a tank as part and parcel of a‑ wakf estate of which he is a Mutwalli. He also made a prayer for temporary injunction pending the disposal of the suit. On 23‑9‑63, the learned Munsif while issuing a notice on the defendants to show cause as to why an order of injunction should not be made as prayed for granted ad interim injunction on the same day. This ad interim order of injunction was made absolute on 2‑10‑

63. The defendants appeared and challenged the order dated 2‑10‑63, by which the ad interim injunction was made absolute. The learned Munsif vacated the order dated 2‑10‑63 and fixed 13‑1‑64, for hearing the objection. After hearing the objection, he again passed an order restraining the defendants from entering into the disputed tank and from creating any disturbance in plaintiff's possession of the disputed tank. That order was challenged by the defendants‑opposite‑party before the learned Subordinate Judge who heard the appeal on the ground that the order of injunction was void ab initio as the learned Munsif granted ad interim injunction without notice to the defendants. The learned Subordinate Judge held that the impugned order of injunction was void and without jurisdiction following the principle laid down in the case of Dr. Ahad Ali Khan and others v. Inayatullah Mandal and others (P L D 1964 Dacca 624). In that case it was held by a learned single Judge of this Court, Asir, J. that an order of injunction without notice to the opposite‑party was void although at the time of making the order absolute, the parties concerned were present. The learned Subordinate Judge, therefore, set aside the order of injunction without going into the merits of the case as to whether or not an injunction should be granted. Aggrieved by the said order, the plaintiff moved this Court in its revisional jurisdiction and obtained the present rule. When this Rule came up for hearing before another learned single Judge of this Court, Ali, J, he found himself in disagree ment with the view expressed by Asir, J. and referred this case to a Division Bench for determination of the question. This is how this matter has come before us. In Dr. Ahad Ali's case Asir, J. observed as follows: " . . it will suffice to observe that the law, as it now stands, is that in all cases where an order of injunction, is sought for, the Court must direct notice of the application in such injunction to be given to the opposite‑party except in such cases as are covered by the proviso in Rule 3 of Order XXXIX of the Code of Civil Procedure which may be quoted as follows :‑ (3) The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite‑party Provided that, except in the case of sale of goods for default in payment, at the, stipulated time, of a debt in respect of which the goods were pledged with any bank, the Court, may where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice.' In view of this kind of the legal position it was the duty of the learned Munsif to give a direction for notice of the application to be served upon the opposite‑parties concerned before any order of ad interim injunction could be passed." Asir, J. has quoted in the aforesaid passage of his judgment Rule 3 of Order XXXIX of the Code of Civil Procedure as it stands after amendment. It is therefore not necessary for us to set it out again. On a plain reading of the Rule 3, Order XXXIX, as quoted above it appears to us that it is laid down therein that the Court shall issue notice of the application for injunction to the opposite party in all cases before granting an injunction. We would have agreed with the view taken in Ahad Ali's case referred to above if the Legislature would have stopped there. We are, however, to take notice of the proviso to the said Rule

3. The proviso clearly lays down that the Court may dispense with notice as contemplated in Rule 3 where it is felt that the very object of injunction would be defeated by the delay involved in the service of the notice. The expression "such notice" occurring in the proviso refers to the notice contemplated in rule 3 of Order X YXIX. Therefore we are of opinion that, the prohibition regarding granting of an injunction before issuing notice to the opposite‑party is subject to this proviso that the Court may grant injunction without notice where the delay thus caused would defeat the purpose of injunction. The opening words of the proviso merely prohibit the Court from granting an injunction without notice "in the case of sale of goods for default in payment, at the stipulated time of a debt in respect of which the goods were pledged with a bank". The proviso to rule 3 empowers the Court to issue injunction in all cases except the cases expressly mentioned in it. Rule 3 of Order XXXIX of the Code before the amendments stood as follows :‑‑ "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." By the present amendment the aforesaid proviso was added. The proviso did not change the law in its general application but made an exception only in the class of cases specified in the said proviso. To hold otherwise would result in taking away jurisdic tion of the Court of granting ad interim injunction in all cases without notice to the opposite‑party. The question does not however arise in view of the clear language of the said proviso. Mr. D. C. Bhattacharjee who appears for the opposite‑parties submits that he is unable to support the view expressed in Ahad Ali's case. Therefore, the position in law is that the Court shall not ordinarily grant an injunction without notice to the opposite‑party. The Court may however, grant injunction without such notice if it is found that delay involved in service of the notice would defeat the very purpose of injunction. Only in the case of a "sale of goods for default in payment at the stipulated time of debt in respect of which the goods are pledged with the bank" the Court cannot dispense with notice even though it is felt that the delay would defeat the purpose of the injunction. The limitation of the Court's power does not extend to other cases. Speaking with respect we are, therefore, unable to agree with the view expressed by our learned brother Asir, J. in Ahad Ali's case and we are in respectful agreement with the view expressed by our learned brother Ali, J. The order of the learned Subordi nate Judge who made the impugned order following Ahad Ali's case must, therefore, be set aside. Mr. D. C. Bhattacharjee, however, submits that the case should be sent back on remand for hearing on merits. Mr. Rafiqul Islam, the learned Advocate for the petitioner, submits that the learned Munsif while granting injunction found that the plaintiff had prima facie title to the tank in question and an injunction should be granted. That may be so that the opposite parties had also a right to an independent consideration of the materials on record by the Court of appeal below. We are therefore of opinion that the prayer for remand to that Court is reasonable. In the result the Rule is made absolute without any order as to costs and. the impugned order dated 15‑2‑56 made by the learned subordinate Judge is set aside and the case is remanded to him to be disposed of in accordance with law and in the light of the observations made above. Let the appeal be heard as expeditiously as possible and the records sent down immediately. HASAN, J‑I agree. S. Q. Rule made absolute