Karnataka High Court
Mr. R Ravindranath Manvi vs Mr. K B Ramesh on 21 December, 2018
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
M.F.A. NO.3837/2018(CPC)
BETWEEN :
Mr.R.Ravindranath Manvi,
S/o.Mr.D.Raghunath Manvi,
Aged about 56 years,
Residing at No.98, 1st Floor,
26th Main Road, 38th Cross,
9th Block, Jayanagar,
Bangalore - 560 069. ...APPELLANT
(By Sri.Maheshkiran Shetty, Adv.)
AND :
1. Mr.K.B.Ramesh,
S/o.Mr.Pariyana Boraiah,
Aged about 42 years,
Residing at No.35/65,
13th Cross, 16th Division,
Agrahara Dasarahalli,
Bangalore - 560 079.
Also At
No.28, 5th Main,
Agrahara Dasarahalli,
Bangalore - 560 079.
2. Sri.Kantharaj K.G.,
S/o.Ganganna
Alias Gangaiah,
-2-
Aged about 35 years,
Residing at Kaallari Kaval,
Kodinarasaiah Pallya,
Kasaba Hobli,
Doddasomana Halli Post,
Magadi Taluk,
Ramangara District - 562 120.
3. Sri.Veeresh M.,
S/o.Mahanthappa,
Aged about 45 years,
Residing at No.24,
Nagarabavi,
Shivananda Nagar,
5th Cross,
Bangalore - 560 072.
4. Sri.G.Praveen Kumar,
S/o.Sri.Govinda Rao Chikodi,
Aged about 42 years,
Residing at Door No.227,
2nd Cross, Vishwaneedam Post,
Hero Halli, Thunga Nagar,
Opposite Vidya Public School,
Bangalore - 560 091.
5. Smt.Chitra R.,
W/o.Sri.Suryaprakash M.,
Aged about 25 years,
"Susheela Nilaya",
No.138, 2nd Floor, 3rd Cross,
7th Main Road, Kaveri Nagar,
2nd Stage, Banashankari,
Bangalore - 560 070.
6. Smt.Shivakumar N.,
W/o.Sri.Anand,
Aged about 33 years,
Residing at No.155/C,
4th Main Road,
-3-
Maruthi Layout,
Bangalore - 560 021. ...RESPONDENTS
(By Sri.G.Krishnamurthy, Senior Adv. for
Sri.J.Prashanth, Adv. for R1,
Sri.M.Veeresh, Adv. for R6)
. . . .
This M.F.A. is filed under Order 43 Rule 1(r) of CPC
against the order dated 28.04.2018 passed on I.A. No.1 in
O.S. No.645/2018 on the file of the IV Additional Senior
Civil Judge, Bengaluru Rural District, Bengaluru, issuing
emergent notice on I.A. No.1.
This M.F.A. coming on for orders, this day, the Court
made the following:
JUDGMENT
The appeal is listed for hearing on the interim application, but is taken up for final disposal with the consent of Sri. Maheshkiran Shetty, learned Counsel for the appellant and Sri. G Krishna Murthy, learned Senior Counsel for respondent No.1.
2. The plaintiff in a suit for specific performance is in appeal. The appellant has instituted the suit in OS No. 645/2018 on the file of the Principal Senior Civil Judge, Bengaluru Rural District (for short, the 'learned Civil Court') for specific performance relying upon a registered sale agreement dated 16.01.2014 asserting that the respondents are -4- obliged to convey title to the 57 number of sites allotted by the Bangalore Development Authority (for short, BDA) in favour of respondent No.1 in lieu of the compensation payable for the acquisition of the land in Sy. No.16/1 measuring 5 acres situated at Sulikere Village, Kengeri Hobli, Bangalore South Taluk. The appellant has asserted that acting under the registered Sale Agreement dated 16.01.2014, he diligently pursued with the BDA on behalf of respondent No.1 for securing the allotment of such 57 number of sites in favour of respondent No.1. The appellant, in addition to the sum paid under the aforesaid Sale Agreement, has paid a further sum of Rs.16,00,000/- in installments over a period of time. The respondent No.1 has refused to execute the power of attorney in favour of the appellant despite receipt of such additional sale consideration.
3. The suit in O.S. No.645/2018 was listed before the learned Civil Court along with I.A. No.1 filed by the appellant for an ad-interim ex parte injunction against alienation of such sites by the respondent No.1. The learned Civil Court by its impugned order dated 28.04.2018 issued emergent notice on I.A. No.1 and suit notice and summons to the defendants/respondents. The learned Civil Court by the -5- impugned order, while concisely recording the plaint averments, concluded that it would be just and necessary to hear the defendants before the grant of ad interim ex parte injunction and thus refused ad interim ex-parte order of injunction against alienation. The learned Civil Court, in refusing to grant ad interim ex-parte injunction, observed that the appellant had paid Rs. 20,92,000/- out of the agreed total sale consideration of Rs.3,50,92,000/-, but the sale deeds executed by respondent No.1 in favour of the other defendants/respondents indicate that respondent No.1 had transferred each site for a consideration of more than Rs.10,00,000/-. The appeal is filed impugning this order.
4. This Court, when the appeal was listed on 10.05.2018, considered the application for interim injunction and granted ex-parte injunction restraining the respondents from alienating or encumbering the suit schedule properties till the next date of hearing, and this order has been extended from time to time. The respondent No.1 has filed application for vacating of this interim order along with objections statement to the application filed by the appellant for interim injunction. -6-
5. Sri. Maheshkiran Shetty, the learned counsel for the appellant canvassed the following arguments in support of the appeal:
Firstly, the learned Civil Court considered the appellant's application for grant of ad interim ex parte injunction in the last session of the last day before summer vacation 2018 and therefore, the learned Civil Court could not apply its mind to the appellant's case as set-up in the plaint.
Secondly, the learned counsel elaborated on the aforesaid submission pointing out certain errors by the learned Civil Court viz., in mentioning the amount paid by the appellant as advance sale consideration and the number of sites transferred by respondent No.1 in breach of the Sale agreement. He placed reliance on the plaint assertions to emphasis that the appellant had specifically contended that, in addition to the amount paid as recorded under the Sale Agreement, he had paid further sale consideration in a sum of Rs.16,00,000/-. Further according to the plaint averments, the respondent No.1 had transferred 5 sites. But the learned Civil Court had not taken note of the payment of Rs.16,00,000/- and had erroneously concluded that the respondent No. 1 had transferred 52 sites. The learned -7- counsel contended that the errors in these regards in the impugned order bespeaks of lack of application of mind.
Thirdly, the appellant is claiming under a registered Sale Agreement and it is due to his efforts, and persuasion with the BDA, the sites (the Suit Schedule properties) have been allotted in favour of the appellant. The appellant has been ready and willing to perform his part of the contract.
Lastly, the respondent No.1, who had transferred 5 sites out of the 57 sites as on the date of the suit, has transferred 9 sites from the date of the suit till the date of the present appeal and about 4 sites after the interim orders by this Court. As such, the learned Civil Court has erred in assessing the urgency in the appellant's case. The conduct of the respondent No. 1 establishes that he has no regard for the due process, and his conduct of transferring sites despite orders from this court by itself would justify continuation of the interim order granted.
6. Sri. G. Krishnamurthy, the learned Senior counsel for respondent No.1, raised threshold objections as regards the maintainability of the appeal. The learned Senior Counsel contended that the learned Civil Court in issuing notice of the application without granting ad interim ex parte injunction, has only exercised its discretion vested under Order XXXIX Rule 3 of -8- the Code of Civil Procedure. This exercise of discretion is neither an 'Order' nor a 'decision' and therefore, this appeal would not lie against such exercise of discretion. Alternatively, even if this exercise of discretion could be construed as an 'Order' or a 'decision', it would not be an appealable order under Order XLIII Rule 1(r) of CPC. An appeal would lie only against such Orders under Order XXXIX of CPC as are enumerated in Order XLIII Rule 1(r) of CPC. Therefore, appeals would lie only against orders under Order XXXIX Rules 1 & 2, 2(a), 4 & 10 of CPC, but not against an 'Order' under Order XXXIX Rule 3 of CPC. If there is any infirmity in exercise of this discretionary jurisdiction, or an 'Order', under Order XXXIX Rule 3 of CPC, it could be examined under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, but not in an appeal.
7. The learned Senior counsel relied upon a series of decisions by different High Courts, and submitted that the High Courts of Bombay1, Allahabad2, Gujarat3, Jammu and Kashmir4, Gauhati5 and Sikkim6 have held that a refusal to 1 AIR 2003 Bombay, Page No.392 2 AIR 1970 Allahabad Page 376 3 AIR 2016 Guj 20 4 AIR 1982 J & K -9- grant ad interim ex parte injunction would be an 'Order' under Order XXXIX Rules 1 & 2 of CPC and therefore appealable under Order XLIII Rule 1(r) of CPC. However, the High Court of Madhya Pradesh7 has held that the exercise of jurisdiction under Order XXXIX Rule 3 of CPC not to grant ex-parte injunction would not be an 'Order' amenable to appeal permissible under Order XLIII Rule 1(r) of CPC. The learned Senior Counsel also relied upon a decision of the Division Bench of this Court in M/s Parijatha and another Vs. Kamalaksha Nayak and other8 in support of his canvass, and urged that in view of the aforesaid decision of the Division Bench of this Court, the present appeal will have to be dismissed as not maintainable.
8. Sri. G. Krishnamurthy, the learned Senior counsel insofar as the merits of the case, contended that the learned Civil Court has rightly exercised its jurisdiction not to grant ad interim ex-parte injunction in the facts and circumstances of the case that are typical where the appellant is claiming right under agreement of sale executed after the issuance of final 5 AIR 1984 Gauhati Page No. 86 (Full Bench), AIR 2002 Gauhati Page No. 146, AIR 2011 Gauhati Page No. 47 6 AIR 1982 Sikkim Page 20 7 AIR 1992 MP 316 8 AIR 1982 Kar 105 [DB]
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notification, but without permission of the BDA. He relies upon an Endorsement issued in this regard by the BDA dated 28.06.2017. Further, he submits that the learned Civil Court is still seized of the question, 'whether the appellant is able to establish the requisites for issuance of temporary injunction'. Therefore, no interference is called for with the exercise of jurisdiction by the learned Civil Court under Order XXXIX Rule 3 of CPC.
9. In rejoinder, Sri. Maheshkiran Shetty, the learned counsel for the appellant places reliance upon a latter decision of the Gauhati High Court in Sajjan Kumar Tharad Vs. Smti Deoris Marbaniang9 and contends that the power to grant injunction is only under Order XXXIX Rules 1 and 2 of CPC. The exercise of jurisdiction under Order XXXIX Rule 3 of CPC is only as regards issuance of ex-parte injunction until the notice is served on the opposite party. Therefore, the impugned order is also traceable to the jurisdiction under Order 39 Rules 1 and 2 of CPC. As such, an appeal would lie against the impugned order under Order LXIII Rule 1(r) of CPC.
9 Air 2011 GAUHATI 47
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10. Further, Sri. Maheshkiran Shetty, the learned counsel for the appellant alternatively contends that if for any reason this Court were to opine that the appeal is not maintainable and the proper recourse available to the appellant would be under other provisions of law, or to seek necessary orders at the hands of the learned Civil Court, appropriate directions be issued to the learned Civil Court in terms of a decision of this Court in W.P. No.13992/2012 for disposal of the application within thirty days while continuing the interim order granted by this Court.
11. In view of the rival submissions, the following questions arise for consideration:
(a) Whether an exercise of discretion by the Civil Court under Order XXXIX Rule 3 of CPC not to grant ad interim ex-parte injunction would be an 'Order' as contemplated under Section 2(14) of the CPC.
(b) If exercise of discretion under Proviso to Order XXXIX Rule 3 of CPC, is an 'Order' under Section 2(14) of the CPC, whether an appeal under Order XLIII Rule 1(r) would lie against such an 'Order'.
(c) What Order should follow?
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12. It is settled law that the provisions of Order XXXIX Rules 1 and 2 of CPC are the repository of the power to grant temporary injunction - whether ad interim or ex-parte, except in those cases where the Court can, in exercise of its inherent powers under Section 151 of CPC, grant temporary injunction and, when an application is filed for grant of ad interim ex parte injunction under Rule 1 and 2 of Order XXXIX of CPC, the Court must necessarily issue notice of such application to the opposite party as contemplated under Rule 3 of Order XXXIX of CPC. However, the proviso to Rule 3 of Order XXXIX of CPC enables a Court to, in special circumstances viz., where the Court is of the opinion justified by reasons recorded that the very purpose of grant of injunction would be defeated if there is delay, also grant ad interim ex parte injunction while issuing notice on such application.
13. As such, the consideration of a request (or a prayer) for grant of ad interim ex parte injunction could result in an order of grant of ad interim ex parte injunction with notice of such application, or in an Order issuing only notice/s of such application to the opposite party. There has been substantial divergence in opinion as regards the remedy available to the opposite party who could be aggrieved by the grant of ad interim
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ex parte injunction, and the remedy available to the applicant when ad interim ex parte injunction is not granted. The discussion on the divergence in the opinions in both these regards could be commenced with reference to the decision of a Division Bench of this Court in M/s Parijatha versus, Kamalaksha Nayak10 and the later decision of the Full Bench of the High Court of Gauhati in Akmal Ali Vs State of Assam and others(followed by other High Courts). The relevant paragraph of the decision of the Full Bench of the High Court of Gauhati11, reads thus:
"As alluded, even an ex parte ad interim order rendered under Rule 1 or 2 of Order 39 is an order falling within the purview of Order 43, Rule 1 (r). Orders rendered under Rules 1 and 2 of Order 39 have been designated as Orders appealable under Order 43 Rule 1 (r) and, as such we are not to look at section 2(9) of section 2(14) of the Code. Section 2 of the Code clearly states that the definition should be understood in the manner stated in section 2 unless there is anything repugnant in the subject or context. If there is any repugnance in Order 43 Rule 1 (r) read with Order 39 Rules 1 and 2, the meaning of the term order should be understood as set out in those provisions and definitions need not be resorted to. That apart any 10 AIR 1982 Kar. Page 105 11 AIR 1984 Gauhati Page No. 86
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order rendered under Order 39 Rules 1 and 2 is a formal expression of the decision arrived at by the civil Court relating to granting of an interim injunction. How could a court injunction party without deciding whether to grant or not. Form No. 8 of the appendix F of the Civil Procedure Code, 1908 clearly shows the manner in which the formal expression of the decision is required to be made. Further to say that reasons must find place in order to be regarded as a decision would land the litigants in great difficulty, as, one word 'Dismissed' would then not be 'Orders'. Such proposition cannot be accepted. It is a different matter that all orders, interim final, should contain reasons. But to regard all not speaking disposals as not even orders of the appropriate authorities would create stalemate, as such disposals might then become non- appealable or not advisable, even under relevant statutory provisions."
The Division Bench of this Court in M/s Parijatha vs. Kamalaksha Nayak, has concluded that:
"Provisions of Rules 1, 2, 3, 3A and 4 of Order XXXIX of CPC regulate the powers and functions of the court in the administration of this form of interlocutory remedy and constitute a self-contained legislative scheme. If Rule 1(r) of Order 43 is intended and does take in its ambit an appeal against an ex parte order of temporary injunction, the significance of Rule 4 is whittled down and may indeed become redundant. The scope of Rule 1 (r) of
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Order 43 suggested by the petitioners cannot be effectuated without rendering Rule 4 of Order 39 somewhat redundant, a result which should be avoided by the court of construction."
14. The Full Bench of the High Court of Gauhati has held that the appeal under the provisions of Order XLIII Rule 1(r) of CPC is maintainable because an 'Order' granting ex parte injunction would be an 'Order' under Order XXXIX Rules 1 & 2 of CPC and therefore, an appeal indisputably would lie against such 'Order'. The Division Bench of this Court has held, after examining the scheme under the provisions of Order XXXIX of CPC, that construing an appeal against an 'Order' granting ad interim ex parte injunction by interpretation would amount to whittling down, apart from ensuing possible practical difficulties, the scheme under Order XXXIX of CPC especially with reference to Rule 4 of Order XXXIX of CPC. The divergence of opinion in these decisions is as regards whether an appeal would lie against an 'Order' granting ad interim ex parte injunction, however there is no divergence on whether the decision to grant ad interim ex parte injunction is an 'Order'.
15. The provisions of Order XXXIX Rule 3 of CPC requires a Civil Court to issue notice of the application for grant
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of injunction under Order XXXIX Rules 1 and 2 of CPC except in circumstances where the Court is of the opinion that the object of granting injunction would be defeated by delay. If a Court is of the opinion that the very grant of injunction would be defeated by any delay, such Court - because of the jurisdiction under proviso to Order XXXIX Rule 3 of CPC - can grant ad interim ex parte injunction while issuing notice of such application. However, the Court, before granting ex-parte injunction must record reasons for its opinion that the object of granting injunction would be defeated if there were to be any delay. Therefore, the requirements of granting ad interim ex- parte injunction under Order XXXIX Rule 3 of CPC, are not only what would be required for grant of injunction under Order XXXIX Rules 1 & 2, but also the consideration of other factors12, including the consequence of delay viz., the object of grant of injunction being defeated by delay. The consideration of additional factors for grant of ad interim ex parte injunction, in the considered opinion of this Court is not only significant but also crucial.
16. A Court, while assessing whether the object of grant of injunction would be defeated by delay and therefore an order 12 Morgan Stanley Mutual Fund Vs. Kartick Das-(1994) 4 Page No.225
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of temporary injunction should be granted or not, applies its judicial mind and formally expresses its decision on such question when it records, as required under proviso to Order XXXIX Rule 3 of CPC, its reasons for its decision. Section 2 (14) of CPC reads as - "order" means the formal expression of any decision of a Civil Court which is not a decree". Therefore, a decision under Order XXXIX Rule 3 of CPC, satisfies the requirements of an 'Order' as contemplated under Section 2(14) of CPC, and as such is an "Order".
17. The different High Courts following the decision of the Full Bench of Allahabad High Court and the decision of the Full Bench of the High Court of Gauhati, have held that because the order granting ex parte ad interim injunction, as well as order declining to grant ad interim ex parte injunction and issuance of notice, are both orders passed under Rules 1 or 2 of Order XXXIX of CPC, and if the first Order is appealable, so must be the second 'Order': some of the High Courts have also dilated concluding that the provisions of Rule 3 of Order XXXIX of CPC is only procedural and the jurisdiction to grant, or even refuse, ad interim ex parte injunction is only under the provisions of Rule 1 or 2 of Order XXXIX of CPC. Therefore, an appeal would lie even against an 'Order' refusing ad interim ex parte injunction.
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18. Insofar as this Court, the Division Bench of this Court in M/s Parijatha and another versus, Kamalaksha Nayak supra, while describing the scope of the jurisdiction under Rules 1, 2, 3, 3A and 4 of Order XXXIX as a self-contained legislative scheme, has categorically held that Courts should avoid construction, or interpretation, that would render such scheme under the aforesaid provisions redundant or provide for conflicting jurisdictions.
19. An appeal against an 'Order', which is not a decree, could only lie if provided for under the provisions of the CPC. Section 104 of CPC expressly states that an appeal shall lie only from the orders enumerated therein, or otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. However, though the order either granting or refusing to grant temporary injunction are orders under Order XXXIX Rule 1 and 2 of CPC, and in that sense both orders are of the same genus, the order refusing to grant ad interim ex-parte injunction, because of the aforesaid factors, is a different species. If the exercise of jurisdiction under Order XXXIX Rule 3 of CPC refusing to grant ex-parte ad interim order of injunction is a separate and distinct "Order" as
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against the same genus order to either grant or refuse temporary injunction, an appeal will lie only if it is permissible under Section 104 of CPC and Order XLIII Rule 1 of CPC. The provisions of Order XLIII Rule 1 of CPC enumerates orders against which appeals will lie under the provisions of Section 104 of CPC. Under Order XLIII Rules 1 (r) of CPC, an appeal would lie only against those orders that are made under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX. As already considered, an order refusing to grant ad interim ex parte injunction, though of the same genus as an order granting, or refusing, temporary injunction after hearing both the applicant and the opposite party, and also traceable to the provisions of Order XXXIX Rules 1 and 2 of CPC, is a different species. In the absence of an order under Order XXXIX Rule 3 of CPC being listed under Section 104 of CPC and Order XLIII Rule 1, an appeal would not lie against such orders, and the question would be, should an appeal nevertheless be construed by interpretation. This question will have to be answered by this Court in the light of the caution that is emphasized by the Division Bench of this Court in. M/s Parijatha and another versus, Kamalaksha Nayak supra, that is not to render the
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scheme under Order XXXIX of CPC, or any part thereof, redundant or give room to contradictory jurisdictions.
20. A Civil Court in deciding either to grant or not to grant an ad interim ex parte injunction without issuing a notice, is applying its judicial mind, additionally, to assess, and express a formal decision on, whether the object of grant of injunction would be defeated by delay based on the information gleaned from the plaintiff's pleadings; such assessment and decision, though formal, could only be a very nascent order. A Court, even after refusing an order of ad interim ex-parte injunction under Order XXXIX Rule 3 of CPC is still seized of the application for grant of temporary injunction. The Court revisits the question of grant of ad interim injunction once the service of notice is complete. This construction/interpretation of the Scheme would be a harmonious reading of the Scheme under Order XXXIX of CPC without giving room for redundancy or conflict of jurisdictions. Of course, if there is any irregularity in the Court assessing and expressing a formal decision on whether the object of grant of injunction would be defeated by delay, the same would be subject to narrower and limited scrutiny under the supervisory jurisdiction available to this Court under Article 227 of the Constitution of India.
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21. As regards the ground that the jurisdiction to grant or refuse ad interim ex parte injunction is under the provisions of Rule 1 or Rule 2 of Order XXXIX of CPC, and if the first order is appealable, so must be the second order, it would suffice for this Court to note that an appeal against an order granting ad interim ex parte injunction is in the context of the scheme as elucidated by the Hon'ble Supreme Court in A. Venkatasubbaiah Naidu Vs. S. Chellappan and Others12 in the light of the provisions of Order XXXIX CPC, more specifically Rule 3A of Order XXXIX CPC.
22. For the foregoing, it is held that the exercise of discretion by the Civil Court under Order XXXIX Rule 3 of CPC not to grant injunction without first issuing Notice to the opposite party would be an 'Order' as contemplated under Section 2(14) of the CPC, but no appeal will lie against such Order under Order XLIII Rule 1(r) of CPC.
23. The impugned order is assailed, and the continuation of the Interim Order is sought, on the ground that there is lack of application of judicial mind on two counts namely the learned Civil Court considered the request for grant of ad interim injunction at the very threshold of an ensuing
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summer vacation and there are factual errors and that the respondent No. 1 has no regard for the due process. It would be difficult from the aforesaid two circumstances to conclude that the impugned order suffers from lack of application of mind. However, the questions whether the learned Civil Court has not applied its mind to the requisites under Order XXXIX Rule 3 of CPC and whether the respondent has no regard for the due process of law, in view of the dismissal of the appeal on the grounds of maintainability, will have to be considered under appropriate jurisdictions. Consequently, the interim order granted by this Court will have to be dissolved.
Hence, the following order:
(a) The appeal is dismissed on the ground of maintainability.
(b) The request on behalf of the learned counsel for the appellant for continuation of the interim order granted by this Court on 10.05.2018 until such time as the appellant may require to choose appropriate course of action, the same is rejected for the reasons stated herein.
(c) It is clarified that any observation made by this Court on the submissions made on behalf of the appellant or
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respondent No.1 is only for the purpose of consideration of the request for such continuation of the interim order.
SD/-
JUDGE SPS