ORDER
Malay Kumar Basu, J.
1. This revisional application is directed against the order dated 14th August, 1996 passed by the Ld. Additional District Judge, 1st Court, Howrah in Misc. Appeal No. 44 of 1992. By that order that Court affirmed the order dated 3rd February, 1992 passed by the Ld. Munsif, 4th Court, Howrah in T. S. No. 26/1992 granting an ad interim injunction ex parte directing both the parties to the suit to maintain status quo of the suit property till the disposal of the injunction-petition under Order 39, C.P.C. The relevant facts were as follows. The suit No. T. Section 26/1992 was filed by the plaintiff-respondent praying for a decree for declaration of title and permanent injunction restraining the defendants from disturbing plaintiffs’ peaceful possession in the suit property and the plaintiffs also prayed for temporary injunction to the above effect till the final disposal of the suit. While passing the order for issuing notice upon the defendants to show cause why the temporary injunction as prayed for would not be granted the Ld. Munsif passed the Impugned order granting the aforementioned interim injunction by directing the parties to maintain sta-
tus quo till the hearing of the injunction petition. Being aggrieved by that order the defendants (the present petitioners) preferred the abovementioned Misc. Appeal before the Court of District Judge. Howrah and the same was transferred to the Court of 1st Additional District Judge. Howrah for hearing and disposal and after hearing arguments of both sides the Ld. Additional District Judge passed the impugned order affirming the order of the Ld. Munsif in question.
2. Being again dissatisfied with that order the defendants have preferred the present revisional application under Section 115 of the Civil Procedure Code challenging the impugned order as illegal, erroneous and liable to be set aside. The case of the defendants-petitioners is that the suit holding is a Thika property and the petitioners arc Thika-tenants therein and as per the provisions of the Thika tenancy (Acquisition and Regulation) Act, 1981, the suit holding being a Thika property is not transferable and the petitioners applied before the Thika Controller, Howrah in prescribed form praying for an order accepting them as a Thika-tenants and the Ld. Controller after being satisfied accepted them as Thika-tenants provisionally and permitted them to deposit the monthly rents provisionally with effect from 18th January, 1982. Accordingly, the petitioners having mutated their names in the records of Howrah Municipal Corporation and have been deposited the tax before the Municipal Authority and they have also submitted building plan before the said Corporation for sanction for the propose of raising construction on the said Thika properly. Under such circumstances the plaintiff-O.P.s were not entitled to purchase the property or to have exercised any right of ownership and the order of the Ld. Munsif granting them interim injunction was erroneous and illegal. Being emboldened by the ad interim order of status quo they were trying to put a padlock on the gate of the door of the shop-cum-godown belonging to the petitioners situated on the suit property and were trying to dispossess the petitioners from there. It has also been averred in the petition that the petitioners had filed a Title Suit being T. S. No. 83/1992 in the Court of 4th Munsif, Howrah for declaration that they were Thika-tenants in respect of the suit property having possessory right and the
O.Ps. had no manner of right, title or interest therein and for permanent injunction restraining them from interfering with the peaceful possession of the petitioners in the suit property and they also have filed a petition for temporary injunction in that suit and the Court also after being satisfied granted an ad interim order of injunction restraining the O.Ps. from interfering with the physical possession of the petitioners therein till the hearing of the said petition for temporary injunction (vide its order dated 13th April, 1992). But an application having been filed by the O.Ps. under Order 39. Rule 4, C.P.C. in the aforementioned T. S. No. 83/1992 and the Court having heard both sides regarding that petition passed an order (Order dt. 5th June, 1992) vacating the said interim order of injunction and allowing the application of the O.Ps. under Order 39, Rule 4, C.P.C. Being aggrieved by that order the petitioners preferred an appeal being Misc. Appeal No. 161/1992 in the Court of District Judge, Howrah against that order dated 5th June, 1992 and the Ld. 2nd Additional District Judge, Howrah upon hearing both sides on that petition passed an order dated July 31st 1993 allowing that appeal and restoring that ad interim order of injunction which was passed in favour of the petitioners and thereby setting aside the impugned order passed by the Court of Munsif.
3. Being aggrieved by and dissatisfied with that order the O.Ps. filed a revisional application before this Court and obtained an interim order of status quo.
4. Being aggrieved by the order dt. 14th August, 1996 mentioned above in Misc. Appeal No. 44/1992 passed by the Ld. 1st Additional District Judge, Howrah affirming the order of the Ld. Munsif, 4th Court, Howrah dated 3rd February. 1992, the petitioners have preferred the present revisional application on the ground that the order passed by the Ld. Munsif dated 3rd February, 1992 was illegal as it was passed ex parte without assigning any reason and without complying with the mandatory provisions of Order 39, Rule 3, C.P.C., and thereby being without jurisdiction and the Court below, that is, the Ld. Additional District Judge ought to have set aside that order.
5. It has been contended by Mr.
Haradhan Banerjee, learned Advocate for the petitioners that according to the provisions of Order 39, Rule 3, granting of temporary injunction ex parte has been disapproved and if there are compelling reasons of urgent nature prompting the Court to grant such type of injunction in the absence of the other side, then that is to be granted only for a limited period and that too, after discussing the special reasons under which granting of such a relief without hearing the defendants has become a compelling necessity. Order 39. Rule 3 of the Code provides as follows:
“The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay.. ……..
6. According to Mr. Banerjec, thus under the provisions of Rule 3 the recording of reasons in such an event by the Court while granting the interim injunction ex parte is a must and the Ld. Munsif having violated this mandatory-provision has rendered his order liable to be set aside on that score alone. In support of his contention Mr. Banerjee cites the decision in Chaddha’s case, (Shiv Kr. Chadha v. Municipal Corporation of Delhi) wherein it was held that under the provisions of the proviso to the Rule 3 of Order 39 of the Civil Procedure Code no ex parte interim order can be passed by a Court without spelling out the reasons for granting such an ex parte order. It was observed in this case by their Lordships of the Apex Court as follows, “the proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that 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 this background the requirement for recording 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 claimed 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”. In another part of this decision it. has been held that the proviso to Rule 3 of the Order 39, C.P.C. 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. Mr. Banerjee contends that in the present case the circumstances are identical, inasmuch as, the Ld. Munsif while granting the ad interim injunction ex parte under the provisions of the proviso of Rule 3 has not cared to discuss the reasons which compelled him to allow this extraordinary relief in the absence of the other side and thereby it is hit by the principle enunciated by the Apex Court in the abovementioned ruling. Mr. Banerjee further relies upon an another decision of a Division Bench of this Court reported in 2000 (1) Cal HN 614. It has been held in this judgment in tune with the verdict of the Apex Court in the Chaddha’s case that an order without reason is like a body without soul and when such a requirement is in the nature of a mandate of the law, omission in recording of reasons by the Court granting the ex parte injunction gives rise to an error which cannot be said to be an error within the jurisdiction of the Court and such an omission becomes a jurisdictional error and on the ground of non-recording of reasons alone the order becomes liable to be set aside because without reason such an order is rendered arbitrary, ineffective and vague. According to Mr. Banerjee, therefore, the impugned order of the Ld. Munsif was without jurisdiction and it could not be sustained and the appellate Court having upheld it has committed an error of law and therefore it should be set aside.
7. As against this, Mr. Deba Prasad Mukherjce, learned Advocate, for the O.Ps. has relied upon a Division Bench decision of this Court reported in 1999 (2) Cal LT 347 (NEPC Micon Ltd. v. Magma Leasing Ltd.) wherein the ruling of the Apex Court
in Chaddha’s case has been discussed at length and it has been held that to hold that an ex parte unreasoned interlocutory order is void would lead the Court to the absurd result that the very object which is sought to be achieved by the petitioner in protection of himself against irreparable injury might be defeated by the failure of the Court to act in terms of Order 39, Rule 3, a factor over which no litigant can have any control, The Division Bench therefore relied upon what was enjoined in an earlier judgment of a Division Bench of this Court reported in Muktakesi Dawn v. Haripada Majumdar, which observed as follows : “but even then, we are inclined to think that the mandatory provisions in proviso to Rule 3 to record reason is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. If there are materials on record to show that these were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court while making the order did not record the reasons for proceeding ex parte”. It has been further held in the abovementioned Division Bench judgment under reference, i.e., 1999 (2) Cal LT 347, “to sum up, the failure to give reasons would, in our view make the order vulnerable in appeal, but not destroy it altogether. The same conclusion is also reached by us with regard to the failure of the Court to direct the service of the order and for the simple reasons. As far as the facts are concerned it is clear that there are sufficient material before the Ld. Single Judge to warrant passing of an ex parte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders, particularly at the ex parte stage, we confirm the order and dismiss the appeal with order as costs.”
8. Another decision which Mr. Mukherjee has relied upon is that of the Apex Court, (Managing Director, Hindusthan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway). Herein it was held by their Lordships that the High Court had no jurisdiction to interfere with the order of the first appellate Court, because the order of the first appellate Court might be right or wrong, might be in accordance with law or not, but one thing was clear that it had jurisdiction
to make such an order and when it is not the case that the first appellate Court exercised its jurisdiction cither illegally or with material irregularity, the High Court could not have invoked its j urisdiction under Section 115 of the Civil Procedure Code. Following this ruling of the Supreme Court a Single Bench of this Court has in an identical situation given the verdict that it cannot be said that failure of the Court to record the reasons for its opinion as provided under the proviso to Rule 3 of Order 39 of the C.P.C. goes to the root of the jurisdiction and the mere fact that the decision is erroneous in fact, or law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction does not become competent for the High Court to correct errors of fact or law however gross or manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. In arriving at such a finding His Lordship relied upon the decision, reported in Prayag Ram v. Ritesh Kumar, reported in (1988) 92 Cal WN 691.
9. In referred to above. It was further observed that the provision relating to recording of reasons for granting ex parte injunction as required by Rule 3 of Order 39 of the Code though couched in imperative form, is not arbitrary in substance and if we overturn an otherwise justifiable ex parte order of injunction solely on the ground of omission to record reasons, we would be giving undue preference to mere form over real substance.
10. In the present case it should not escape our notice that the order of the Ld. Munsif in question could not be termed as an absolutely unreasoned order. As the appellate Court has pointed out, although the impugned order does not contain a reasoning in so many words supported by adequate facts and materials, he has at least expressed his satisfaction that there exist a prima facie ease and the matter seemed to be an emergent one and according to the Ld. Appellate Judge there has been compliance of the basic requirements of these provisions of Order 39, Rule 3 in substance. Ld. Additional District Judge while disposing of the appeal has further observed that the questions regarding legal status of the parties, their title to the suit property or the question of its inalienability or the legal con-
sequences are questions to be decided at the time of final hearing on the basis of the materials produced by both the parties and at the time of considering the simple question as to whether an ad interim injunction should be issued or not the factor of urgency should be kept in mind and he was satisfied that although the reasons were not given by the trial Court in details, in essence and substance they were briefly assigned for his coming to such a finding.
11. Be that as it may, having regard to the fact that here by virtue of the passing of the impugned order by the Ld. Munsif, no jurisdictional error was committed or, in other words, the order was neither without jurisdiction nor in exercise of the jurisdiction with material irregularity, this revisional application becomes untenable in law under the provisions of Section 115 of the Civil Procedure Code and the hands of this Court become tied. Relying upon the abovementioned decisions reported in AIR 1963 SC 1576 (sic). and and also 1999 (2) Cal LT 347, I am inclined to hold that the dictates of the Apex Court to Chaddha’s case, or the dictates of the Division Bench of this Court, reported in 2000 (1) Cal HN 614 will not be applicable to the facts and circumstances of the present case where apart from the fact that it cannot be said that the impugned order of the trial Court granting the interim ex parte injunction was not totally unreasoned, the order cannot be taken as one without jurisdiction or one where the jurisdiction has been exercised with material irregularity so that this Court’s intervention by way of revision will be impermissible.
12. In the result, therefore, this revisional application cannot be sustained and, accordingly, be dismissed without however any costs under the circumstances. The impugned order of the Court below be affirmed. The office is directed to communicate this order to the Court below forthwith.