Calcutta HC: Order 39 Rule 3 Applies, Ex Parte Order Not Void on Appeal

The court confirmed that Order 39 Rule 3 of the CPC applies to the Original Side of the Calcutta High Court. Non-compliance with the rule renders an ex parte order vulnerable on appeal but not void. The court found the ex parte interim order justified and dismissed the appeal without costs.

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Issues Involved:
1. Applicability of Order 39 Rule 3 of the Civil Procedure Code (CPC) to the Original Side of the Calcutta High Court.
2. Validity of ex parte orders passed without complying with Order 39 Rule 3 of the CPC.
3. Consequences of non-compliance with Order 39 Rule 3 of the CPC.

Detailed Analysis:

1. Applicability of Order 39 Rule 3 of the Civil Procedure Code (CPC) to the Original Side of the Calcutta High Court:
The primary issue was whether the provisions of Order 39 Rule 3 of the CPC, as amended in 1976, apply to the Original Side of the Calcutta High Court. The court noted that Clause 37 of the Letters Patent (1865) allows the High Court to frame its own rules for regulating proceedings, provided these rules are as consistent as possible with the provisions of the CPC. The court emphasized that the Original Side Rules (OSR) must be read and construed harmoniously with the CPC. Chapter XX of the OSR, which deals with interlocutory applications, does not explicitly require judges to give reasons for ex parte orders. However, the court held that the language difference between Chapter XX Rule 3 of the OSR and Order 39 Rule 3 of the CPC is not legally significant, and the provisions of the CPC should be incorporated into the OSR as far as possible.

2. Validity of Ex Parte Orders Passed Without Complying with Order 39 Rule 3 of the CPC:
The court examined whether an ex parte order passed without complying with Order 39 Rule 3 of the CPC is void. It was argued that non-compliance with the requirement to record reasons for an ex parte order under Order 39 Rule 3 would render the order void. The court referred to several authorities, including the Supreme Court's decision in Shiv Kumar Chadha v. Municipal Corporation of Delhi, which emphasized the importance of recording reasons for ex parte orders. However, the court distinguished between an order being "vitiated" (imperfect or faulty) and being "void" (without legal validity or force). The court concluded that non-compliance with Order 39 Rule 3 would make the order vulnerable in appeal but would not render it void.

3. Consequences of Non-Compliance with Order 39 Rule 3 of the CPC:
The court considered the consequences of non-compliance with Order 39 Rule 3 of the CPC. It was argued that the failure to record reasons or serve the order immediately should lead to the reversal of the order. The court noted that the proviso to Order 39 Rule 3 does not explicitly state the consequences of non-compliance. The court held that while the failure to give reasons would make the order susceptible to being set aside on appeal, it would not destroy the order altogether. The court emphasized that the appellate court has the power to decide the matter on the merits without necessarily remanding it back to the lower court.

Conclusion:
The court confirmed that the provisions of Order 39 Rule 3 of the CPC apply to the Original Side of the Calcutta High Court and that non-compliance with these provisions would make an ex parte order vulnerable in appeal but not void. The court found that there was sufficient material before the learned single Judge to warrant the passing of the ex parte interim order and dismissed the appeal with no order as to costs.

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