IN THE HIGH COURT OF KARNATAKA AT BANGALORE

M.F.A. NO. 6072/2008 (GM-CPC)

BETWEEN:
RAVISHANKAR CHUDAMANI SARNAIK                        APPELLANT

AND:
S.R. KRISHNAMRAJU & OTHERS                                RESPONDENTS

This appeal is filed under Order 43 Rule 1® of CPC against the order dated 19.04.2008 passed on I.A. No.1 in O.S. No.349/2008 on the file of the Civil Judge (Sr. Dn.) and JMFC., Devanahalli, allowing I.A. filed under Order-39 Rules 1 & 2 of CPC for temporary injunction till filing of the written statement and objections to I.A. No.1.

This Appeal coming on for admission, this day, the Court delivered the following:

JUDGMENT

1.        In this appeal, the appellant (Defendant no.3) is challenging the order dated 19.04.2008 passed on I.A. No.1 in O.S. No.349/2008. By the said order, an exparte ad-interim order of temporary injunction is granted against the Defendant-Appellant herein restraining him from alienating the suit schedule property till filing of the written statement and objections to I.A.No.1.

2.        The case of Defendant No.3-appellant herein is that on an earlier occasion the plaintiff-respondent no.1 herein had approached the Civil Court in O.S. No.1616/2005 seeking a judgment and decree of permanent injunction against the vendor of the defendant-appellant herein in respect of the very land and along with the suit an application under Order 30, Rules 1 & 2 of CPC was filed praying for an order of temporary injunction restraining the defendant from encroaching upon a portion of the property. The said application, on contest, was dismissed by order dated 21.11.2006. It is the further case of the appellant that the exparte injunction granted on 19.04.2008 in the present case is continued in gross violation of the requirement of Order 39, Rule 3A CPC as the notice issued calling upon the defendant to appear before the Court itself fixed the date of appearance beyond the period of 30 days within which the Court below is mandated to dispose off the interlocutory application. It is his submission that from 19.04.2008 the exparte injunction has been continued to operate against the appellant in violation of the provisions of Order 39, Rule 3A CPC. In this regard, learned counsel for the appellant has placed strong reliance on a judgment rendered by the Apex Court in the case of A.VENKATASUBBIAH NAIDU VS. CHELLAPPAN AND OTHERS (AIR 2000 SUPREME COURT 3032). Taking support from the strong observations made by the Apex Court in the said judgment in paragraphs-15, 17, 18 and 19, learned counsel for the appellant submits that the appellant who is affected by the exparte interim order had the option to approach this Court and file this appeal and therefore he has approached this Court challenging the exparte interim order granted. It is his further contention that even on merits there is nothing to show that the plaintiff-respondent no.1 herein is in possession of four acres of land which is mentioned in B-Schedule to the plaint.

3.        Learned counsel for the respondents however strongly contends that there is no suppression of fact of filing of the earlier suit in O.S.No.1616/2005 against the vendor of the present defendant as the said factum is mentioned in the plaint itself. He further contends that the suit being one for declaration of title and for consequential injunction the relief that is now granted on the interlocutory application is only to restrain the defendant from alienating the property pending disposal of the suit which is innocuous. Insofar as the relief of temporary injunction prayed for regarding the protection of the possession of the plaintiff-respondent no.1 herein is concerned, he submits that the Court below has ordered notice and therefore the said application will be heard only after the notice is served on the defendants and he is given an opportunity to file objections. Counsel further brings to the notice of the Court the fact that merely because an exparte interim order is granted for a period beyond 30 days and is made to operate for a longer period, the appellant cannot rush to this Court and file this appeal as he has an efficacious remedy of approaching the very Court by filing necessary application for objecting for continuation of the interim order or seeking vacation of the same.

4.        Having heard the learned counsel for the parties and upon consideration of the materials on record and keeping in mind the judgment of the Apex Court referred to above, it has to be stated that the Court below was not justified in deferring the consideration of the matter having granted an exparte ad-interim temporary injunction. Although the present order passed is only restraining the defendant-appellant herein not to alienate the property, keeping in mind the mandate of Order 39 Rule 3A CPC and the judgment rendered by the Apex Court referred to surpa, it is well advised that the parties shall argue their case and make out their respective case before the Court below for grant or otherwise of any order on the interlocutory application filed. Any further continuation of the interim order granted exparte will run counter to the judgment rendered by the Apex Court. It is open to the counsel for the appellant to bring to the notice of the court the order passed earlier in O.S.No.1616/2005, where the Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore, by his order dated 21.11.2006 had refused to grant injunction to restrain the appellant herein from encroaching upon a portion of the suit schedule property.

5.        In the light of the above, the appeal is allowed. The impugned order is set aside. Both the parties are directed to appear before the Trial Court on 20.08.2008 and the Court below is directed to take up the application for consideration on the same day and pass orders expeditiously. It is made clear that this Court has not expressed any opinion on the merits of the case.

Sd/–
Judge

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