Gujarat HC refuses to entertain The Wire appeal against trial court order

The Gujarat High Court yesterday refused to entertain the appeal filed by the The Wire and its journalists against the ex parte injunction order passed by an Ahmedabad trial court..The single judge Bench of Justice Paresh Upadhyay found no reason for the High Court to interfere when the appellants had a remedy to challenge the order before the trial court..Appearing for the The Wire and its journalists, Senior Advocate Mihir Joshi argued that the trial court order was passed without issuing notice to the defendants, and that the facts did not warrant any ex parte order. It was also argued that the trial court has not considered any of the parameters like – prima facie case, balance of convenience, irreparable loss, while passing the order..Senior Advocate ND Nanavati, representing Jay Shah, contended that the appellants were reluctant to even appear before the trial court, and that they must approach the trial court in order to vacate the impugned order..Justice Upadhyay concurred with the counsel for the respondents, noting,.“Till this matter was heard on 16.11.2017, except original defendant No.2, no one has filed even appearance before the Trial Court, much less any reply. So far the defendant No.2 is concerned, on his behalf also, appearance was filed on 08.11.2017, only to take adjournment before the Trial Court.”.The Court then delved into Order 39 of the Code of Civil Procedure, which deals with temporary injunctions. As per Rule 4 of the same, the appellants could approach the trial court to set aside/modify the injunction passed by it..“…immediate remedy available to the present appellants, under the provisions of Order 39, Rule 4 of the Code, which enabled them to approach the Trial Court to modify and / or vacate the ex parte ad-interim impugned restrain order dated 12.10.2017, is not only not availed by any of them, there is reluctance on their part, even to put their contest, on merits, before the Trial Court.”.The Court also referred to the Supreme Court’s judgment in A Venkatasubbiah Naidu v. S Chellappan, which held that under normal circumstances, an aggrieved party cannot approach an appellate court during the pendency of the application for vacation of temporary injunction..“In the present case, it cannot be said that, there was no justification for the Trial Court for invoking proviso to Rule 3 of Order 39 of the Code. It is also evident that the defendants, against whom the impugned restrain order is passed are served with the complete set of paper book, along with the impugned order, within four days from the date of passing of the order. There is no motivation on the part of any of the defendants to contest the matter before the Trial Court.”.While dismissing the appeal, the Court left it open for the appellants to file a counter to the suit, or an application before the trial court. It further directed the trial court to finally decide the injunction application within 30 days, after hearing both sides..The matter has its genesis in an article published by The Wire on October 8 alleging impropriety in the dealings of Jay Shah, son of BJP President Amit Shah. In reaction to the article, the younger Shah filed a defamation suit of Rs. 100 crore against the publication and its journalists on October 12..On that very day, BK Dasondi, 4th Additional Senior Civil Judge, Ahmedabad Rural, had passed an ex-parte order effectively preventing The Wire from publishing, in any form, media related to the article dated October 8. The publication then sought to file an appeal against the trial court order before the Gujarat High Court..Read the order: