Karnataka High Court
Sri Supreeth K S vs Smt S Pramila @ M N Pramila Nesargi on 21 February, 2012
Author: Subhash B.Adi
Bench: Subhash B.Adi
1IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO IN THE HIGH COURT OF KARNATAKA, BAN GALORE DATED THIS THE 21*t DAY OF FEBRUARY 2012 THE HON'BLE MR. JUSTICE SUBHASH } B ADL _ BETWEEN : 1. SRLSUPREETH KS. > 8/O LATE K.S UDAYASHANEAR AGE: 26 YEARS . R/ANO48& 490 oe 47 MAIN-ROAD, CHAMARAIPEY 7 BANGALORE - 560 018 oO 2. DRSEEMA ¥ SB. D/O LATE £.S. UDAYASHANEAR AGE: 38 YEARS © MS R/A NO.36 oe 47 MAIN ROAD, CHAMARAJPET BANGALORE ~ 560 018 3 Sur SUNANDA KS. _ D/O LATE £.8.UDAYASHANKAR AGE: 66 YEARS R/A NO.48 & 49 413 MAIN ROAD, CHAMARAJPET BANGALORE - 560 018 .. PETITIONERS : : "(BY SRLM. VEERABHADRAIAH, ADV. FOR M/s. M. = VEERABHADRAIAH & ASSTS., ADVS.) HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ( D/O LATE K.C.SADASHIVAIAH AGE: 73 YEARS R/A NO.844-1, 100 FEET ROAD INDIRANAGAR _ BANGALORE - 560 038 . SMT.NAVARATHNA D/O LATE K.C.SADASHIVAIAH -- AGE: 71 YEARS R/A NO.91, 6™ MAIN ROAD ~ 47 BLOCK, 3F° STAGE BASAVESHWARA NAGAR BANGALORE - 560 079. . SRLK.S.JAYACHANDRA _ $/O LATE K.C. SADASHIVAIAE AGE: 67 YEAES | oe R/A NO.49, 47 MAGN ROAD, CHAMARAJPET BANGALORE - 360 18 | SRLICS.SUKt MAR $/O LATE K.C. SADASHIVATAH AGE: 63 YEARS AT PRESENT R/A M/s. SUKUMAR ENTERPRISES, #100 'FE' ALLENDALE AVE Os ALLENDALE, BJ.07401- 2017 5. DRSARVAMARGALA _ BJO LATE K.C.SADASHIVAIAH AGE: 61 YEARS R/A NO.284, 17™ CROSS 7% MAIN, UPPER PALACE ORCHARD "BANGALORE - 560 078 _ SRLK.S.SHIVANANDA "| §/O LATE K.C.8ADASHIVAIAH -- AGE: 55 YEARS R/A NO.91, 67! MAIN ROAD 47! BLOCK, 38° STAGE 4IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC BASAVESHWARA NAGAR oa BANGALORE - 560 079 RESPONDENTS
(SRLUDAYA HOLLA, SR. ADV. FOR SMT. GEETHA MENCN, ey ADV. FOR R1 SRLHEMANTH KUMAR, ADV. FOR F2.& R5_ SRLG.PAPIREDDY, ADV. FOR R3, 54 AND R6) oo ao This writ petition is filed. under Articies' '226 and 227 of the Constitution of India praying. to issue a writ in the nature of certiorari quashing the orde: dated 13.9.2011 passed by the City Civil Court, t, Bangalore i in O0.8.No.5976/ 2011 and ete. --
This petition coming: on for Pretimninary Hearing this day, the Court made the ® following -
This writ petition in by the plaitii against the order dated 16.8.2011 on IA.1 and IA.3 dated 5.9.2011 " paswed in O. SNe $976} 2011.
Sp vacua have filed a suit for partition and separate possession of their 1/3 share in the suit we > schedule property. Along with the plaint, plaintiffs also filed an application under Order 39 Rules 1 and 2 of _ Code of Civil Procedure for exparte ad interim "injunction, restraining the defendants from alienating HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | the suit schedule property. On 16.8.2011 iteclf, 'the restraining the defendants from alienating the "at _ achedule property in arty mariner. The Court directed compliance of Order 29 Rule stb) of CPC. Accordingly, plaintifis filed the affidavit reporting the compliance of Order 39 Rule 3(b) of cPc on 1. 8. 201 1 itaelf. Plaintiffs further filed another application under Order 30 Rules 1 and 2 for temporary injunction isd JA No.3 inter-alia for restraining the dsferdants from interfering with the possession ¢ of the 8 suit it achedule property by the plaintiffs in any mariner.
ae 3. 'By order dated 5.9.2011, the Trial Court . granted ad interim temporary injunction, restraining the | 7 defendants trom interfering with the possession of the quit. property by the plaintiffs and directed the
- compliance of Order 39 Rule 3(b) by 12.9.2011,
- 'however, the plaintiffs only paid the process fee on 9.2011.
HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC
4. Plaintiffs thereafter sought for extension of ad interim temporary injunction order, the said request _ was opposed by the defendants inter-alia contending ; that the proceedings of the Trial Court are stayed ina miscellaneous proceeding filed ander Section 24 of Code of Civil Procedure and. that the 'plaintifis 'have not complied with the requirement of Onder 39 Rule 3{b) of CPC. The Trial Court, on consitexing the objection raised by the defendants, 'bund that the plaintiffs have not coraplied with the requirement of Order 39 Rule 3{b)} of CPC and further in view of the stay order in miscelianeous proceeding, refused to exterid the interim order.
5. it is not in dispute that on 16.8.2007, the a . exparte temporary injunction restraining the defendants s "from abenating the suit property was ordered on JA.1 adit appears that the plaintifis Sled an affidavit on _" 17.8.2007 reporting the compliance of Order 30 Rule 3{b) of CPC. However, in so far as IA.3 is concerned, no HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH material was produced before the Trial Court showing comphance of requirement of the Order 39 Rule 3) of om CPC, cmoopt the process memo dated 5.9.2011.
6. Learned counsel for the petitioners retied on the 7 process memo dated 5.9.2011. and submitied that the payment of process fes amounts to compliance of Order 39 Rule 3 of CPC. oe
7. The provino of Onder 39 Pule 3 of CPC requires that the: 'applicant, ca whose favour the exparte injunction 8 granted, shall deliver to the opposite party, or to aend to him by registered post, immediately after 7 the order granting exparte injunction, a copy of the ° application fbr -injunetion together with - a copy of the | affidavit filed im support of the application; a copy of the ~. plaint; and copies of the documents on which the
- : > applicant so relies, and to file, on the day on which euch ~~ aa injunction is granted or on the day immediately following that day, an affidavit stating that the HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC requirement of Order 39 Rule 3(b) of CPC has been complied.
8. The requirement of the proviso is that the party who has secured the exparte injunction, shall either deliver personally against whorn injunction i is granted or send by registered post, the onder of injunction, affidavit, plaint and the document relied and file an affidavit either | on the same day or the following day, reporting the complies of requirement of Order 39 Rule 3b) of CFO,
9. However, it is "not in dispute that no such 7 : 'affidavit « or compliance ig reported to the Trial Court and . it is in these circumstances, the Trial Court found that | when thers ia no compliance with the requirements of Order 39 Rule 3 of CPC, the Court cannot extend the ~ ~ agparia interim order and accordingly, refused to extend : ~ the interim order. Even today, in this writ petition, nothing is produced on record to show that the plaintiffs have complied with the requirements. Neither there is Loge HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH any affidavit nor any acknowledgement for avin served the copies. .
10. If there is no compliance of Onder a9 Rls 2 30 :
of CPC, the very purpose of granting exparte temporary :
injunction ia defeated, the purprse is to make it imnow to the party agamst whom 'exparte temporary injunction 8 ordered aa to reason for grant of such exparte order. It is in these circumedances, the Trial Court hes refused to extend the interim order. Hence, I do not find any infirmi:y in the onder passed by the Trial Court. However, it, 3B open for the plaintiffs to show that there is compliance and file affidavit of compliance and after ms 'euch compliance is 5 reported, it is open for the Trial Court ti. consider the request of plaintiff and pass an
- order as desmed fit and proper in the circumstances of ma the CARE, Aecordingty, Writ petition is disposed of.
Sd/-
JUDGE