Recording of Reasons to grant an Ex parte injunction without noticing the opponent is not merely a formal requirement but is a mandatory requirement that every Court is supposed to follow when the court purposes to grant Ex parte injunction.
This aspect was properly dealt with by the Supreme Court in Shiv Kumar v. MCD,1993 SCR (3) 522 which stated,
“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 3, the procedure prescribed under the proviso has been followed. The part which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity of him being heard, must satisfy the court about the gravity of the situation and the 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 other 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. 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. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code attracts the principle that, if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all.”
Temporary mandatory injunction are granted not as a matter of rule, but in exceptional circumstances and the relief is an extra-ordinary relief. The Supreme Court in Colgate v. Hindustan Lever, AIR 1999 SC 18 noted certain specific considerations in the matter of grant of interlocutory injunction. According to the Hon’ble Court is that, primary consideration shall be non expression of opinion as to the merits of the matter because injunction is sought at the earliest possible stage of a trial.
The other consideration which ought to weigh with the court hearing the application or petition for the grant of an injunction are,
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiffs’ interest for violation of his rights though however having regards to the injury that may be suffered by the defendants by reason therefor;
(iii) The court while dealing with the matters ought not to ignore the factum of strength of one party’s case being stronger than others’;
(iv) No fixed rules of notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case—the relief being kept flexible.
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the party’s case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant.
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
Before deciding to refuse or grant an injunction, it is the duty of the court to consider the effective and relevant documents produced by the parties. If the applicant prays through his pleadings only for perpetual injunction, courts can grant a relief of temporary injunction in order to secure justice, but courts shall consider the matter in light of the principles laid down on Section 41 of the Act.
