006-SLLR-SLLR-2000-V-3-AJITH-v.-CEYLON-PAPER-SACKS-LTD.pdf
AJITH
v.CEYLON PAPER SACKS LTD
COURT OF APPEALEDUSSURIYA, J. (P/CA)
CA/LANO. 149/99DC COLOMBO NO. 5375/SPL01st. 29th OCTOBER 199905th NOVEMBER 1999
Interim Injunction – Civil Procedure Code S.79 of 1988 (Amendment),S.664(l), S.666 – Could the District Court grant an injunction exparte -Injunction granted inter parte – Could, the opposite party reagitate the issueagain.
Held:
.(1) An injunction can issue only after notice to the opposite party and afull inquiry had after the opposite party files objections with affidavits, ifthey so desire. If however the opposite party fails to come into court afternotice is served, then the Court is free to make an appropriate orderbased on the material placed before it by the Applicant for the Injunction.
Per Edussuriya j.,
“Where the Injunction is issued after full inquiry after the oppositeparty has filed objections, such party cannot then once again availitself of S.666 to have the Injunction set aside."
Quarere
"Where the opposite party failed to come into Court after service of thePetition with the affidavits and notice of application can he come underS.666 without purging his default."
(ii) The failure to serve notice of the application for injunction is fatal andtherefore all proceedings thereafter are irregular.
Per Edussuriya j..
“there has been some confusion after the procedural law relating toinjunction was amended. If a party is entitled to have a “second bite
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of the cherry" it will cause unnecessary expenses to the parties aswell as overcrowding of the District Courts with such secondapplications to re-agitate the same matter, which has been dealtwith once, this certainly could not have been the intention of thelegislature.”
APPLICATION for leave to appeal from the order of the District Court ofColombo.
Wyedasa Rajapakse with M.C. Muneer for Defendant-Petitioner.
K. Kanag-Iswarcm, P.C. with MA Sumanthiran and Nigel Bartholemeusfor Plaintiff-Respondents.
Cur. adu. vult.
February 02, 2000.
EDUSSURIYA, J. (P/CA)The Defendant Petitioner’s complaint is that only asummons had been served on him but that no notice of anapplication for an injunction was served on him and that whenhe attended Court he came to know that an interim injunctionhad been applied for, but that he was not given an opportunityto file objections substantiated by affidavit or affidavitstogether with other relevant material, but was directed to makeoral submissions if, any and thereafter the interim injunctionwas issued. Further, that he made oral submissions since hehad no alternative.
The learned District Judge had taken the view that in asmuch as the Petitioner was entitled to have the interiminjunction set aside under Section 666, the Petitioner was notentitled to file objections.
Prior to the amendment to the Civil Procedure Code byAct No. 79 of 1988 the District Court could grant interiminjunctions ex-parte, except where the application for theinterim injunction was made after answer was filed. Howeveras the law stands today the District Court cannot grant interiminjunction ex-parte. but always with notice to the
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Respondents to the application. Yet Section 666 with a minoramendment remains in the Civil Procedure Code enabling theRespondent to such an application to have the injunction setaside.
What then is meant by the words the Court shall beforegranting an injunction cause the petition of application for thesame together with accompanying affidavit to be sewed on theopposite party, found in Section 664(1) today?
Counsel Rajapakse contended that Section 664( 1) appliesto cases where the injunction is applied for by petition andaffidavit after the institution of the action, in view of the words“Petition of application” found therein and that in view of theapplication for injunction being made in this case in the Plaint,the District Court could not grant the injunction under Section664(2). This, I think is not tenable. The words "Petition ofapplication” were found in Section 664 prior to the amendmentand all along Courts have taken the view that where theinjunction is applied for in the Plaint itself the words “Petitionof application” refer to the Plaint.
As Section 664 stands today, no injunction shall be issuedwithout serving the Petition of application together with theaccompanying affidavit being served on the opposite party.
In this connection Mr. Rajapakse submitted that thenotice of application for injunction had not been served onhim.
When Section 664(1) sets out that the Court shall beforegranting the injunction cause the petition and affidavit beserved on the opposite party, it must be understood that thepurpose of serving the petition and affidavit is to enable theopposite party to come into Court and object, and show causeif any against the issue of the injunction and hence theopposite party must be given an opportunity to file its full and
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compete objections. It cannot be said that he can only be heardorally. Of what purpose are oral submissions by counsel, orthe opposite party himself in person, if he is not permitted tosubstantiate those oral submissions with an affidavit oraffidavits and other relevant material, unless on the face of itthe application is bad in law and or irregular.
Thus, it is my view that today an injunction can issue onlyafter notice to the opposite party and a full inquiry had after theopposite party files objections with affidavits if they so desire.Of course where the opposite party fails to come into Courtafter notice is served then the Court is free to make anappropriate order based on the material placed before it by theapplicant for the injunction. In such an instance it may be saidthat the opposite side may still come in under Section 666 tohave the injunction set aside, but where the opposite partycomes in on service of the petition of application and affidavitand notice of application for injunction then such party isentitled to file objections and have a full inquiry into theapplication for injunction, and it is also my view that where theinjunction is issued after full inquiry after the opposite partyhas filed objections, such party cannot then once again availitself of Section 666 to have the injunction set aside. Further,can it be said that where the opposite party failed to come intoCourt after service of the petition with the affidavit and noticeof application that he can come in under Section 666 withoutpurging his default?
Then did the legislature in bringing in amended legislationoverlook the fact that no injunction shall be granted ex-parteunder the amendment, in incorporating Section 666 with aminor amendment. Or was Section 666 to apply only to caseswhere new material was discovered after the issue of theinjunction? The latter cannot be since the words used are “anyparty dissatisfied with such order …” Thus, it is my view thatonce an injunction has been issued after objections are filedand inquiry, a Respondent cannot avail himself of Section 666to have the injunction set aside.
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President’s Counsel Mr. Kanag-Iswaran contended thatthe Petitioner to the present application before this Courtparticipated at the inquiry by making oral submissions andtherefore the order made issuing the injunction was madeinter-partes.
However, the present Petitioner made oral submissionssince he had no alternative after his application to fileobjections was refused and he did so under compulsion, andof what assistance are such oral submissions to Court if hewas not allowed to file petition and affidavit or affidavits,unless as hereinbefore mentioned the oral submissions weredirected at some irregularity in the procedure on some fatalflaw in the application for the injunction. I therefore hold thatthe Petitioner is entitled to file objections with affidavits andother material if any to oppose the application for injunction.
I also hold that the failure to serve notice of the application forinjunction is fatal and therefore all proceedings thereafter areirregular and accordingly set aside the order issuing theinjunction with costs fixed at Rs. 3150/ – and this Court directsthat the Petitioner be given an opportunity to file objectionsand an inquiry be held thereafter on the application forinjunction.
It is appropriate to mention that there has been someconfusion after the procedural law relating to injunctions wasamended. If a party is entitled to have a “second bite at thecherry” (under section 666 as Justice Soza stated in his veryexhaustive article to the Judges Journal of December 1991) itwill cause unnessary expense to the parties as well as overcrowding of the District Courts with such second applicationsto re-agitate the same matter which has been dealt withonce. This certainly could not have been the intention of thelegislature.
Application allowed. Petitioner allowed to file objections.District Court directed to hold an Inquiry on the application forInjunction.