# Yogesh Agarwal v. Sri Rajendra Goyel & Ors

- **Citation:** (2014) 2 ILRA 829
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-10
- **Case number:** Civil Misc. Writ Petition No. 24892 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-agarwal-v-sri-rajendra-goyel-ors-42987
- **Pages:** 8

## Headnote

C.P.C.-Order
XXXIX
Rule-3-Grant
of
temporary injunction-general rule to grant
ex-parte-injunction
after
hearing
to
defendant-only
exception
to
record
reasons-in absence of reasons -ex-parte
injunction granted by Trail Court-rightly
830 INDIAN LAW REPORTS ALLAHABAD SERIES
interfered by Lower Appellate Courtwarrant no interference-petition dismissed.

Held: Para-28
It is of utmost importance to note that an
ex parte order of injunction is an exception,
the general rule is that injunction order be
passed only after notice to the defendant. It
is only in rare cases where the court finds
that the object of granting injunction would
be defeated by delay, the court can grant
injunction ex parte but that too only after
recording reasons having regard to the
mandatory provisions of rule 3 of Order 39,
ex parte injunction is not routine matter
and it must be borne in mind by the courts
below.

Case Law discussed:
1995(1) ARC 80; 1989(1) ARC 351; AIR 2002
Allahabad 198; 2006 Law Suit (SC) 745; 2004 Law
Suit (All.) 309; 1994(3) JT 654; AIR 1990 (All.)
134; 2007(2) AWC 1539; 1958 AIR 79; (1975) 1
All ER 504; (1992) 1 SCC 719; 1981 (2) SCC 766;
(2012) 6 SCC 792; (2012) 5 SCC 370.

## Text

2 All]. Yogesh Agarwal Vs. Sri Rajendra Goyal & Ors.
829

20. The ratio laid down in these
cases had been subsequently followed by
the Apex Court in series of its decisions
including the case of Secretary, O.N.G.C.
Limited Vs. V.U.Warrier, reported in
2005 (5) SCC, 245.

21. Division Bench of this Court in the
case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another
(Supra) has held that gratuity and other post
retiral dues, which the petitioner is otherwise
entitled under the Rules, could not have been
withheld either on the pretext that criminal
proceedings were pending against the
petitioner or for the reason that on the
outcome of the criminal trial, some more
punishment was intended to be awarded.

22. Learned Single Judge of this
Court in the case of Radhey Shyam
Shukla Vs. State of U.P. and another
(Supra) has also taken the similar view
and has held that mere pendency of the
criminal proceedings would not authorize
withholding of gratuity.

23. Division Bench of this Court in
the case of Lal Sharan Vs. State of U.P.
and others (Supra) has held that mere
intention to obtain sanction for initiating
disciplinary enquiry could not be basis for
withholding the post retiral dues unless
sanctioned, granted and the disciplinary
proceedings started.

24. Apex Court in the case of State of
Punjab and another Vs. Iqbal Singh, (Supra)
has further held that since the cut of the
pension and the gratuity adversely affects the
retired employee as such order can not be
passed
without
giving
reasonable
opportunity of making his defence.

25. In the aforementioned facts and
circumstances, the impugned order dated
06.02.2002 (Annexure No. 2 to the writ
petition) is hereby quashed. Respondents
are directed to release the entire post
retiral dues of the petitioner including the
gratuity, pension, etc., within a period of
three months from the date of production
of certified copy of this order before
him.The petitioner shall be allowed to
continue to be paid the interim pension
within the said period. The respondents
shall fix the final pension and shall pay
the
same
regularly
thereafter.
The
petitioner shall also be entitled to interest
at the rate of 6% per annum towards the
delayed payment of gratuity, namely from
the date when it became payable and till it
is actually paid.

26. With the aforesaid observation,
the writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 24892 of 2014

Yogesh Agarwal ...Petitioner
Versus
Sri Rajendra Goyel & Ors. ...Respondents

Counsel for the Petitioner:
Smt. Rama Goel Bansal

Counsel for the Respondents:
Sri Rahul Sahai

C.P.C.-Order
XXXIX
Rule-3-Grant
of
temporary injunction-general rule to grant
ex-parte-injunction
after
hearing
to
defendant-only
exception
to
record
reasons-in absence of reasons -ex-parte
injunction granted by Trail Court-rightly
830 INDIAN LAW REPORTS ALLAHABAD SERIES
interfered by Lower Appellate Courtwarrant no interference-petition dismissed.

Held: Para-28
It is of utmost importance to note that an
ex parte order of injunction is an exception,
the general rule is that injunction order be
passed only after notice to the defendant. It
is only in rare cases where the court finds
that the object of granting injunction would
be defeated by delay, the court can grant
injunction ex parte but that too only after
recording reasons having regard to the
mandatory provisions of rule 3 of Order 39,
ex parte injunction is not routine matter
and it must be borne in mind by the courts
below.

Case Law discussed:
1995(1) ARC 80; 1989(1) ARC 351; AIR 2002
Allahabad 198; 2006 Law Suit (SC) 745; 2004 Law
Suit (All.) 309; 1994(3) JT 654; AIR 1990 (All.)
134; 2007(2) AWC 1539; 1958 AIR 79; (1975) 1
All ER 504; (1992) 1 SCC 719; 1981 (2) SCC 766;
(2012) 6 SCC 792; (2012) 5 SCC 370.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Smt. Rama Goel Bansal,
learned counsel for the petitioner as well
as Sri Rahul Sahai, learned counsel for the
respondents.

2. The petitioner filed Suit No. 445
of 2013 on 31.05.2013 for permanent
prohibitory
injunction
against
the
defendant/respondents
alongwith
an
application for temporary injunction. The
plaintiff/petitioner on request got the suit
adjourned for 04.07.2013 and again it was
adjourned for 09.07.2013 and on the said
date an ex parte injunction was granted.
Aggrieved,
the
respondent/defendants
preferred Misc. Appeal No. 93 of 2013
(Rajendra Goel and another Versus
Yogesh
Agarwal
and
others).
The
appellate court by the impugned order
dated 16.12.2013 set aside the temporary
injunction order dated 09.07.2013 passed
by the trial court which is assailed in the
present petition.

3. It is contended on behalf of the
petitioner, that the trial court has assigned
reasons as required under proviso to
Order XXXIX Rule 3 while granting ex
parte temporary injunction and it is the
discretion of the Court to grant injunction,
which ordinarily should not be interfered
by the appellate court.

4. Learned counsel for the petitioner
placed reliance upon the following
judgments in support of her submission
Smt. Chitra Agrawal Versus Jagdish
Saran Goel1, Shiv Saran Goyal and others
Versus M/s Kedar Nath Om Prakash and
others2, Badri Prasad Versus VIIth
Additional District Judge, Allahabad and
others3, M Gurudas Versus Rasaranjan4,
and Akbar Ali Versus District Judge5.

5. In rebuttal, Sri Rahul Sahai,
learned
counsel
appearing
for
the
respondents, submits that grant of ex parte
injunction is exception to the general rule.
The temporary injunction can be granted
after
notice
to
defendant
inviting
objections. No reason whatsoever has
been assigned by the trial court for
granting ex parte injunction, which is
mandatory.

6. In support of his submission,
learned counsel for the respondents has
relied upon Morgan Stanley Mutual
Fund Versus Kartick Das6, Road Flying
Carrier and another Versus General
Electric Company of India Ltd.7, Kan
Construction and Colonizers Pvt. Ltd.
Versus
Allan
Deo
Noronha
and
another8.

7. Rival submissions fall for
consideration.
2 All]. Yogesh Agarwal Vs. Sri Rajendra Goyal & Ors.
831

8. The power to grant temporary
injunction is the discretion of the Court.
The discretion, however, should be
exercised reasonably, judicially and on
sound legal principles; ex parte injunction
should not be lightly granted as it
adversely affects the other side. The grant
of injunction is in the nature of equitable
relief.

9. The first rule is that the applicant
must make out a prima facie case in
support of the right claimed by him and
the court must be satisfied that there is a
bonafide dispute raised by the applicant,
and there is a strong case for trial which
needs investigation and a decision on
merits and on the facts before the court
there is a probability of the applicant
being entitled to the relief claimed by
him. The existence of a prima facie right
and infraction of such right is a condition
precedent
for
grant
of
temporary
injunction.

10. The courts should not examine the
merits of the case closely at that stage or try
to restore a conflict of evidence nor decide
complicated question of fact and law which
call for detailed arguments and mature
considerations. They are matters to be dealt
with at trial. The grant or refusal of
temporary injunction is not a mini trial.

11. In deciding a prima facie case,
the court is to be guided by the plaintiff's
case as revealed in the plaint, affidavits or
other
materials
produced
by
him.
Explaining the ambit and scope of the
connotation "prima facie' case, in Martin
Burn Limited Versus R.N. Banerjee.9, the
Supreme Court observed as follows:-

"A prima facie case does not mean a
case proved to the hilt but a case which
can be said to be established if the
evidence which is led in support of the
same were believed. While determining
whether a prima facie case had been made
out the relevant consideration is whether
on the evidence led it was possible to
arrive at the conclusion in question and
not whether that was the only conclusion
which could be arrived at on that
evidence. It may be that the Tribunal
considering this question may itself have
arrived at a different conclusion. It has,
however, not to substitute its own
judgment for the judgment in question. It
has only got to consider whether the view
taken is a possible view on the evidence
on the record."

12. The existence of the prima facie
case alone does not entitle the applicant
for temporary injunction. The applicant
must further satisfy the court about the
second condition by showing that he may
suffer irreparable injury if the injunction
as prayed is not granted, and that there is
no other remedy open to him by which he
can
protect
himself
from
the
consequences of apprehended injury. The
expression irreparable injury however
does not mean that there should be no
possibility of repairing the injury. It only
means that the injury must be a material
one, i.e., which can not be adequately
compensated by damages.

13. In the leading case of American
Cyanamid Co. V. Ethicon Ltd.10, the
House of Lords has rightly pronounced
the principle thus:

"[T]he governing principle is that the
court should first consider whether, if the
plaintiff were to succeed at the trial in
establishing his right to a permanent
injunction, he would be adequately
832 INDIAN LAW REPORTS ALLAHABAD SERIES
compensated by an award of damages for
the the loss he would have sustained as a
result of the defendant's continuing to do
what was sought to be enjoined between
the time of the application and the time of
the trial. If damages in the measure
recoverable at common law would be
adequate remedy and the defendant would
be in a financial position to pay them, no
interlocutory injunction should normally
be granted, however strong the plaintiff's
claim appeared to be at that stage. If, on
the other hand, damages would not
provide an adequate remedy for the
plaintiff in the event of his succeeding at
the trial, the court should then consider
whether, on the contrary hypothesis that
the defendant were to succeed at the trial
in establishing his right to do that which
was sought to be enjoined, he would be
adequately
compensated
under
the
plaintiff's undertaking as to damages for
the loss he would have sustained by being
prevented from doing so between the time
of the application and the time of the trial.
If damages in the measure recoverable
under such an undertaking would be an
adequate remedy and the plaintiff would
be in a financial position to pay them,
there would be no reason upon this
ground
to
refuse
an
interlocutory
injunction."

14. The third condition of granting
interim injunction is that the balance of
convenience must be in favour of the
applicant. In other words, the court must
be satisfied that the comparative mischief,
hardship or inconvenience which is likely
to be caused to the applicant by refusing
injunction will be greater than that which
is likely to be caused to the opposite party
by granting it. If on weighing conflicting
probabilities, the court is of the opinion
that the balance of convenience is in
favour of the applicant, it would grant
injunction, otherwise refuse to grant it.

15. In Dalpat Kumar Versus V.
Prahlad Singh11, the Supreme Court
stated as follows:-

"The
Court
while
granting
or
refusing to grant injunction should
exercise sound judicial discretion to find
the amount of substantial mischief or
injury which is likely to be caused to the
parties, if the injunction is refused and
compare it with that it is likely to be
caused to the other side if the injunction is
granted. If on weighing competing
possibilities or probabilities of likelihood
of injury and if the Court considers that
pending the suit, the subject-matter should
be maintained in status quo, an injunction
would be issued. Thus the Court has to
exercise its sound judicial discretion in
granting or refusing the relief of ad
interim injunction pending the suit."

16. In United Commercial Bank v.
Bank of India12, the Court observed:
(para 50 and 51)

"50. No injunction could be granted
under Order 39, Rules 1 and 2 of the Code
unless the plaintiffs establish that they had
a prima facie case, meaning thereby that
there was a bona fide contention between
the parties or a serious question to be
tried. The question that must necessarily
arise is whether in the facts and
circumstances of the case, there is a prima
facie case and, if so, as between whom?
In view of the legal principles applicable,
it is difficult for us to say on the material
on record that the plaintiffs have a prima
facie case. It cannot be disputed that if the
suit were to be brought by the Bank of
India, the High Court would not have
2 All]. Yogesh Agarwal Vs. Sri Rajendra Goyal & Ors.
833
granted any injunction as it was bound by
the terms of the contract. What could not
be done directly cannot be achieved
indirectly in a suit brought by the
plaintiffs.

51. Even if there was a serious question
to be tried, the High Court had to consider
the balance of convenience. We have no
doubt that there is no reason to prevent the
appellant from recalling the amount of Rs
85,84,456. The fact remains that the payment
of Rs 36,52,960 against the first lot of 20
documents made by the appellant to the
Bank of India was a payment under reserve
while that of Rs 49,31,496 was also made
under reserve as well as against the letter of
guarantee or indemnity executed by it. A
payment 'under reserve' is understood in
banking transactions to mean that the
recipient of money may not deem it as his
own but must be prepared to return it on
demand. The balance of convenience clearly
lies in allowing the normal banking
transactions to go forward. Furthermore, the
plaintiffs have failed to establish that they
would be put to an irreparable loss unless an
interim injunction was granted."

[Refer: Best Sellers Retail (India) Pvt.
Ltd. Versus Aditya Birla Nuvo Ltd.13,]

17. Experience shows that once
injunction is granted it is a nightmare for
the defendant in getting it vacated. The
court should be very careful in granting
injunction. Ex parte injunction should be
granted in case of grave urgency, safe and
better course is to give short notice to the
other side.

18. Supreme Court in Maria
Margarida Sequeria Fernandes and others
versus Erasmo Jack de Sequeria14, held
as follows:-

"83. Grant or refusal of an injunction
in a civil suit is the most important stage
in the civil trial. Due care, caution,
diligence and attention must be bestowed
by the judicial officers and judges while
granting or refusing injunction. In most
cases, the fate of the case is decided by
grant
or
refusal
of
an
injunction.
Experience has shown that once an
injunction is granted, getting it vacated
would become a nightmare for the
defendant.

84. In order to grant or refuse
injunction, the judicial officer or the judge
must
carefully
examine
the
entire
pleadings and documents with utmost
care and seriousness. The safe and better
course is to give short notice on
injunction
application
and
pass
an
appropriate order after hearing both the
sides. In case of grave urgency, if it
becomes imperative to grant an ex-parte
ad interim injunction, it should be granted
for a specified period, such as, for two
weeks. In those cases, the plaintiff will
have no inherent interest in delaying
disposal of injunction application after
obtaining
an
ex-parte
ad
interim
injunction."

19. In Morgan Stanley Mutual Fund
case (supra), the Supreme Court indicated
the factors which should weigh with the
court in the grant of an ex parte
injunction:

"(a) whether irreparable or serious
mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte
injunction would involve greater injustice
than the grant of it would involve;

(c) the court will also consider the
time at which the plaintiff first had notice
of the act complained so that the making
834 INDIAN LAW REPORTS ALLAHABAD SERIES
of improper order against a party in his
absence is prevented;

(d) the court will consider whether
the plaintiff had acquiesced for sometime
and in such circumstances it will not grant
ex parte injunction;

(e) the court would expect a party
applying for ex parte injunction to show
utmost
good
faith
in
making
the
application.

(f) even if granted, the ex parte
injunction would be for a limited period
of time.

(g) General principles like prima
facie case balance of convenience and
irreparable loss would also be considered
by the court."

20. The court must weigh one need
against another and determine where' the
balance of convenience' lies.

21.

The
same
principles/considerations apply to the
defendant seeking vacation of injunction
order. In Gujarat Bottling Co. Ltd. v.
Coca Cola Co.15, the Supreme while
rejecting the defendant's application for
vacating the interim relief held as
follows:-

"Under Order 39 of the Code of Civil
Procedure, jurisdiction of the Court to
interfere with an order of interlocutory or
temporary injunction is purely equitable
and, therefore, the Court, on being
approached,
will,
apart
from
other
considerations, also look to the conduct of
the party invoking the jurisdiction of the
Court, and may refuse to interfere unless
his conduct was free from blame. Since
the relief is wholly equitable in nature, the
party invoking the jurisdiction of the
Court has to show that he himself was not
at fault and that he himself was not
responsible for bringing about the state of
things complained of and that he was not
unfair or inequitable in his dealings with
the party against whom he was seeking
relief. His conduct should be fair and
honest. These considerations will arise not
only in respect of the person who seeks an
order of injunction under order 39 Rule 1
or Rule 2 of the Code of Civil Procedure,
but
also
in
respect
of
the
party
approaching the Court for vacating the adinterim or temporary injunction order
already granted in the pending suit or
proceedings."

22. Rule 1 of Order 39, nowhere
provides that no temporary injunction can
be granted by the court unless the case
falls within the circumstances enumerated
therein, where the case is not covered by
Order 39, interim injunction can be
granted by the court in exercise of
inherent powers under section 151 of the
Code
(Ref:
Manohar
Lal
v.
Seth
Hiralal.16; ITO v. M.K. Mohd. Kunhi17;
Tanusree v. Ishani Prasad18.

23. When the court proposes to grant
ex parte injunction without issuing notice
to opposite party, proviso to Rule 3
enjoins the court to record reasons for its
opinion that the object of granting
injunction would be defeated by delay.
The requirement of recording of reasons
is not a mere formality but a mandatory
requirement.

24. In Shiv Kumar Chada Versus
Municipal Corporation of Delhi19, the
Supreme Court stated as under:

"........the court shall record the
reasons why an ex parte order of
injunction was being passed in the facts
and circumstances of a particular case. In
2 All]. Yogesh Agarwal Vs. Sri Rajendra Goyal & Ors.
835
this background, the requirement for
recording the reasons for grant of ex parte
injunction, cannot be held to be a mere
formality. This requirement is consistent
with the principle, that a party to a suit,
who is being restrained from exercising a
right which such party claims to exercise
either under a statute or under the
common law, must be informed why
instead of following the requirement of
Rule '1, the procedure prescribed under
the proviso has been followed. The party
which invokes the Jurisdiction of the
court for grant of an order of restrain
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
therewith 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."

25. Applying the law to the facts of
the case at hand. The suit was filed on
31.05.2013
and
thereafter
it
was
adjourned
at
the
behest
of
the
plaintiff/petitioner for 04.07.2013 and
again on the said date adjourned was
sought and 09.07.2013 was the next date
fixed and it is on that date an ex parte
temporary injunction was granted i.e.
after a lapse of forty days from the
institution of suit.

26. The lower appellate court, by the
impugned order dated 16.12.2013, set aside
the ex parte injunction order and the present
writ petition was filed on 29.04.2014 i.e.
after a lapse of four months. The trial court
while granting ex parte temporary injunction,
has ordered that 'title prima facie proved, the
matter is of immediate nature, in view of the
facts and circumstances the parties to
maintain status quo on the spot till the next
date' (translated from hindi). There is no
discussion in the entire order as to how the
conclusion has been arrived at by the trial
court that the ex parte injunction be granted
without notice to the defendants. The suit
admittedly was filed on 31.05.2013 and
injunction was granted on 09.07.2014 after a
lapse of 40 days, this time period was
sufficient for putting the defendants to notice,
rule 3 of Order XXXIX C.P.C. requires that
only in case where it appears to the Court
that object of granting injunction would be
defeated by the delay, it has power to grant
ex parte injunction. In such circumstances
also, the court has to record reasons for its
opinion that the object of granting injunction
would be defeated by delay.

27. The contention of learned
counsel for the petitioner that the affidavit
in support of the injunction application
made out a case for grant of ex parte
injunction order which was sufficient for
the court for forming its opinion to grant
ex parte injunction order, cannot be
accepted for the simple reason that where
law requires recording of reasons for
doing a particular act, the mere presence
of material or assertions made in the
836 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit is not sufficient, it must also be
shown that the court has applied its mind
to the material/assertions and reasons for
existence of grave urgency must find place in
the order of the court. Ex parte injunction
order was passed after forty days from
institution of the suit and the writ petition
challenging the lower appellate courts order
was filed after 130 days, this clearly
demonstrates that there was no grave
urgency in granting ex parte injunction order.

28. It is of utmost importance to
note that an ex parte order of injunction is
an exception, the general rule is that
injunction order be passed only after
notice to the defendant. It is only in rare
cases where the court finds that the object
of granting injunction would be defeated
by delay, the court can grant injunction ex
parte but that too only after recording
reasons having regard to the mandatory
provisions of rule 3 of Order 39, ex parte
injunction is not routine matter and it
must be borne in mind by the courts
below.

29. In the facts and circumstances of
the present case and for the reasons and
law stated herein above, the lower
appellate court did not commit any
illegality
or
jurisdictional
error
in
vacating the ex parte injunction order; this
court declines to interfere with the
impugned order under Article 226/227 of
the Constitution of India.

30. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 30017 of 2014

Raj Kumar Verma ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri R.S. Kushwaha

Counsel for the Respondents:
C.S.C., Sri Shiv Nath Singh

U.P. Secondary Education Services Selection
Board Act, 1982-Section 10(i)-Providing no
reservation on post of head of institutionwhether ultra virus being contrary to U.P.
Public Services (Reservation for SC/ST &
and Other Backward classes) Act 1994?-
held-'No'-controversy involved in present
case squarely covered by decision of Apex
Court in Chakradhan Paswan case-petition
dismissed.

Held: Para-7
Hence, the exclusion of reservation from
the post of the Head of the Institution in
Section 10 of the Act of 1982 is in
conformity with the provisions of the
Constitution and is, in fact, intended to
ensure that there is no violation of Articles
14 and 16 of the Constitution. As a matter
of fact, Rule 12 (6) of the U.P. Secondary
Education Services Selection Board Rules,
1998 makes a clear distinction between
recruitment of teachers in the lecturer and
trained graduate scale on the one hand
and
the
recruitment
of
the
Principals/Headmasters on the other hand.
In the case of the latter, there is no
provision for reservation consistent with
the provisions of Section 10 of the Act of
1982.

Case Law discussed:
(2008) 12 SC 1; (1988) 2 SCC 214; (2011) 4
SCC 120

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)