The State of Assam and Another vs Smti Bhanushree Sen Deka

B.L. Hansaria, J.—This revision relates to an order of injunction passed by the learned Munsiff No. 2, Gauhati. The facts giving rise to this revision are these.

A suit was filed by the opposite party herein on 14.7.82 seeking declaration of her right to get regular advertisement from the State of Assam. It may be stated that the opposite party is the proprietor, publisher and printer of Agradoot, an Assamese bi-weekly. Along with the filing of the suit, a petition under Order 39, Rules 1 and 2 read with Section 151 of the CPC was also filed, praying for temporary injunction to restrain the Defendants from stopping advertisements to the aforesaid bi-weekly. On the date of filing of the petition, an order was passed to issue notice to the Defendants to show cause "why ad-interim injunction should not be granted". After the cause was shown and the parties were heard, the prayer for injunction was allowed on 27.7.82. The Court further ordered to issue notice to the Defendants to inform about the matter. In the notice issued to the Defendants, it was stated that they may file objection, if any, against the ad-interim injunction. On such an objection being filed, a point was taken before the learned Munsiff that the order passed on 27.7.82 was not ad-interim in nature and as such the order could be discharged, varied or set aside only in accordance with Rule 4, Order 39, Code of Civil Procedure. But here again, in view of the second proviso such an order could be made if by "a change in the circumstances" or due to "undue hardship", the same was required, inasmuch as the order dated 27.7.82 had been passed after giving to the Defendants an opportunity of being heard. The learned Munsiff accepted the objection. On appeal being preferred this view has been upheld.

It is urged by Shri P. Prasad, learned Government Advocate Assam that the notices dated 14.7.82 and 27.7.82 would clearly show that the orders were ad-interim in nature. No. doubt, this is so, but a reference to the relevant provision would not bear this nomenclature of the order. Rule 3 of Order 39 requires notice of the application to be given to the opposite party before granting injunction except where it appears that the object of granting injunction would be defeated by the delay. The proviso to this Rule requires certain steps to be taken by the applicant where it is proposed to grant an injunction without giving notice to the other side. Rule 3A then requires the Court to dispose of application for injunction which has been granted without giving notice within a period of 30 days from the date on which injunction was granted. In the present case, admittedly notice had been issued before granting of the order of injunction on 27.7.82. It was thus not a case attracting the operation of Rule 3A. The only other Rule which could be invoked by the Defendants was Rule 4, as held by the learned Munsiff and as rightly affirmed by the learned Assistant District Judge. As, however, its second proviso has imposed certain conditions to discharge, vary or set aside the order, no illegality was committed by the Courts below in not accepting the objection of the Defendants filed by them.

2A. Despite this, I have heard Shri Prasad as to what objection the State really had to the granting of injunction as prayed for. The first submission made is that the Plaintiff had approached the Court after about two months of the cessation of advertisements of Agradoot inasmuch as the suit was filed on 14.7.82 whereas the last advertisement given to the newspapers was on 16.5.82. The delay has been explained in the plaint by stating that the Government was first approached on 3.6.82 on finding that the advertisements were not being given to the newspaper. The reason for stoppage of advertisements was also desired to be known, but nothing was done. It thus appears that before rushing to the Court, the Plaintiff though it advisable to sort out the matter with the Government, and on her failure to do so redress in the Court was sought. The delay is, therefore, not of such a nature and magnitude as to deny the relief claimed for.

It is then urged by the learned Government Advocate that the relief of injunction as granted has virtually amounted to decreeing of the suit inasmuch as the prayer in the suit itself is to permanently inject the Defendant from stoppage of advertisements with a mandatory direction to issue the same regularly as before. Now, it is known that when permanent injunction is prayed for in a suit, a temporary injunction in the same line is also claimed in many cases and granting of the same till disposal of the suit cannot be regarded as final adjudication of the suit itself. Injunctions are ordered when the Court is prima facie satisfied about the right of the litigant. A suit is however, decreed when the Court is finally satisfied about the right of the suitor. In any case to take care of this submission of the learned Government Advocate, it is observed that granting of temporary injunction by the learned Courts below would not debar the Defendants from satisfying the Court in the course of the suit that the Plaintiff had no right to obtain the relief prayed for.

There is another aspect of the matter. As the case of the Plaintiff was that the advertisements had been stopped without giving reasonable opportunity of being heard, it may be stated that it has been rightly observed by the learned Munsiff that the order of stoppage was hit by the principle of natural justice. In this connection reference may be made to Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, and J. Vilengandam v. Ex-Engineer AIR 1978 SC 830 , wherein it has been held that before black-listing a firm, reasonable opportunity of being heard has to be given. Though the Defendants have not in so many words black-listed the aforesaid bi-weekly from getting advertisements, in effect ordering of stoppage of advertisements amounts to this. It may also be pointed out that the distribution of largesse is no longer subject to arbitrary power of the Government. In such a matter also the Government has to be guided by the known principles and arbitrariness or discrimination would hit even such actions. Reference may only be made to the leading decision of the Supreme Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others,

With these observations, the petition is dismissed. It is, however, a fit case where the trial of the suit should be expedited. It is accordingly ordered that let the learned Munsiff take up the hearing of the suit expeditiously.