Karnataka High Court
Sri Duggi Reddy Krishna Prasad Reddy vs Ann Varghese on 20 September, 2024
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MFA No.5734 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.5734/2024 (CPC)
BETWEEN:
1. SRI. DUGGI REDDY KRISHNA PRASAD REDDY
AGED ABOUT 43 YEARS
S/O DUGGI REDDY VENKATA REDDY
RESIDING AT 1-78, CHABOLU
MARRIPADU MANDALAM
CHABOLU, NELLORE
ANDHRA PRADESH - 524230.
2. SRI. MUTYALA NARAYANA REDDY
S/O MUTYALA VENKATA REDDY
AGED ABOUT 47 YEARS
Digitally signed by RESIDING AT NO 2-4, AYYALURIVARIPALLI
MAHALAKSHMI B M
Location: HIGH
MEDANULU VENGANA PALLE
COURT OF PRAKASAM ANDHRAPRADESH - 523112.
KARNATAKA
PRESENTLY AT 7, BHA HOUSE
HARLUR ROAD, BELLANDUR GATE
AMBALIPURA, BELLANDUR POST
BANGALORE- 560103.
3. SRI. BIJJAMULA CHANDRA SEKHAR REDDY
AGED ABOUT 43 YEARS
S/O SRI. RAMANNA REDDY
RESIDING NALLAMADUGULA
PRAKASHAM, ANDHRA PRADESH - 524230.
4. SRI. BIJJAMULA VENKATESWARLU
AGED ABOUT 32 YEARS
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MFA No.5734 of 2024
S/O SRI. RAMANAIAH
RESIDING AT NALLAMADUGULA
PRAKASHAM, ANDHRA PRADESH - 523112.
...APPELLANTS
(BY SRI. G.V. SUDHAKAR, ADV.,)
AND:
1. ANN VARGHESE
D/O LATE MAJ. M. VARGHESE
AGED ABOUT 49 YEARS.
2. MARY VARGHESE
D/O LATE MAJ. M. VARGHESE
AGED ABOUT 47 YEARS.
3. THOMAS VARGHESE
D/O LATE MAJ. M. VARGHESE
AGED ABOUT 46 YEARS.
RESPONDENTS NO.1 TO 3 ARE
RESIDING AT NO.321, FAUJI FARM
DECATHALON, MULLURU CARMELARAM
SARJAPURA ROAD, BENGALURU SOUTH
BENGALURU - 560035.
4. SRI. K.V. PRASAD
S/O LATE VENKATESHULU
AGED ABOUT 59 YEARS.
5. SMT. K. SHASHIKALA PRASAD
W/O K.V. PRASAD
AGED ABOUT 58 YEARS.
6. SMT. K. SHALINI PRASAD
D/O K.V. PRASAD
AGED ABOUT 32 YEARS.
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MFA No.5734 of 2024
7. SRI. K.P. PRITHIVI
D/O K.V. PRASAD
AGED ABOUT 26 YEARS.
RESPONDENTS NO.4 TO 7 ARE
RESIDING AT NO.128, I BLOCK
RAILWAY PARALLEL ROAD
KUMARA PARK WEST
BANGALORE - 560020.
8. SRI. M.R. PRATHPASIMHA
S/O M.V. RAMARAO
AGED ABOUT 60 YEARS
MADAGONDANAHLLI
MADHURE HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL - 561203.
9. SRI. SHEKAR NARAYAN REDDY
S/OLATE H. NARAYAN REDDY
AGED ABOUT 53 YEARS
RESIDING AT NO 111/114
H N R LAYOUT, KAIKONDARAHALLI
CARMELARAM POST, SARJAPURA ROAD
BANGALORE - 560035.
10. SMT. C. MAMATHA SHEKAR
W/O N. SHEKAR REDDY
AGED ABOUT 52 YEARS
RESIDING AT NO.111/114
H N R LAYOUT, KAIKONDARAHALLI
CARMELARAM POST, SARJAPURA ROAD
BANGALORE - 560035.
11. SRI. VIJAY KUMAR GOEL
S/O LATE RAGHBIR SINGH GOEL
AGED ABOUT 67 YEARS
RESIDING AT NO.13/35
SHANTINAGAR, MALKAGANI
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MFA No.5734 of 2024
NORTH DELHI, DELHI -110007.
...RESPONDENTS
(BY SRI. D.R. RAVISHANKAR, SR. ADV., FOR
SRI. RAKESH B. BHATT, ADV., FOR R1 TO R3
SRI. KESHAV M. DATTAR, ADV., FOR R4 TO R7
R5 TO R7 ARE REPT. BY GPA HOLDER R4
NOTICE DISPENDED WITH TO R8 TO R11)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 14.08.2024 PASSED
ON IN O.S.NO.1425/2024 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, ISSUING NOTICE ON I.A. NOs.1,
2 AND SUIT SUMMONS TO DEFENDANTS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Defendant Nos.6 to 9 are before this Court seeking to set aside the ad interim ex parte temporary injunction order I.A.Nos.1 and 2, dated 14.08.2024 passed in O.S. No.1425/2024 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru ("trial Court"
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2. Heard Sri G.V.Sudhakar, learned counsel for the appellants; Sri D.R. Ravishankar, learned senior counsel for Sri Rakesh B.Bhatt, learned counsel for respondent Nos.1 to 3; Sri Keshav M.Dattar, learned counsel for respondent Nos.4 to 7 and respondent Nos. 5 to 7 are represented by GPA holder respondent No.4.
3. Suit has been instituted by respondent Nos.1 to 3 seeking for the following reliefs:
"1) Cancel the registered Deed of Sale dated 19.08.2017 allegedly executed by Plaintiffs in favour of Defendant No.1 to 4 registered as Document No.SHV-1-03060-2017-18, Book-I, stored in CD No.SHVD256 registered on 19.08.2017 in the office of Sub-Registrar, Shivajinagar as the same got executed by playing fraud and hence the document is void.
2) Declare that the sale deed dated 13.09.2023 executed by Defendant No.1 to 4 in favour of Defendant No.10 and 11 registered as Document No.VRT-1-06684-2023-24, Book-1 stored in Central server registered in the office of Sub- Registrar Vartur on 13.09.2023 is not binding on the plaintiffs.-6-
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3) Declare that the sale deed dated 13.09.2023 executed by Defendant No.1 to 4 in favour of Defendant No.10 registered as Document No.VRT- 1-06677-2023-24, Book-1 Central server registered in the office of Sub- Registrar Vartur on 13.09.2023 is not binding on the plaintiffs.
4) Declare that the sale deed dated 13.09.2023 executed by Defendant No.1 to 4 in favour of Defendant No.6 to 9 registered as Document No.VRT-1-06689-2023-24, Book-1 Central server registered in the office of Sub- Registrar Vartur on 13.09.2023 is not binding on the plaintiffs.
5) Declare that the sale deed dated 13.09.2023 executed by Defendant No.1 to 4 in favour of Defendant No.10 registered as Document No.VRT- 1-06682-2023-24, Book-1 Central server registered in the office of Sub- Registrar Vartur on 13.09.2023 is not binding on the plaintiffs.
6) Declare that the sale deed dated 13.09.2023 executed by Defendant No.10 in favour of Defendant No.12 registered as Document No.KRI-1- 05061-24-25, Book-1 registered on 03.07.2024 not binding on the plaintiffs.
7) Issue order of permanent Injunction restraining Defendants or anyone claiming under them from Interfering with Plaintiffs' peacefull possession over the schedule property."
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4. Along with the plaint, the plaintiffs filed applications - I.A.Nos.1 and 2 under Order XXXIX Rules 1 and 2 CPC to grant ex parte temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and to restrain the defendants from alienating the suit schedule property.
5. The trial Court by the impugned order, passed the following order:
"Pending consideration of IA. No.1 and 2 issue an order of ad interim ex parte temporary injunction against the defendants from interfering with the peaceful possession and enjoyment and from alienating the suit schedule property till next date of hearing.
Plaintiffs are directed to comply the order under Order 39 Rule 3 of CPC."
6. Learned counsel for the appellants submits that the impugned order is ex facie arbitrary and in utter disregard to the mandate under Rule 3 of Order XXXIX CPC, the trial Court has granted ex parte order of -8- NC: 2024:KHC:38879 MFA No.5734 of 2024 temporary injunction when the documents produced by the plaintiff itself is clear that the plaintiffs are not in possession of the suit schedule property and having not established prima facie case, the grant of ex parte temporary injunction is liable to be dismissed.
7. Learned senior counsel appearing for respondent Nos.1 to 3 brings to the notice of this Court that, the impugned order dated 14.08.2024, passed on I.A.Nos.1 and 2, by the trial Court is assailed by defendant Nos.1 to 4 before this Court in W.P. No.23553/2024 and the Co-Ordinate Bench of this Court had ordered notice, however, no interim order was passed and the appellants herein colluding with the other respondents have suppressed the material facts before this Court and obtained stay of ex parte temporary injunction granted by the trial Court on 14.08.2024. Learned senior counsel submits that in view of the availability of the remedy under Order XXXIX Rule 4 CPC, it is not open to the petitioner to bypass the statutory remedy.
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8. Perused the appeal papers and, whether the impugned order granted satisfies the requirement of Order XXXIX Rule 3 CPC needs to be looked into. Order XXXIX Rule 3 CPC reads as under:
"3. Before granting injunction, Court to direct notice to opposite party.-The Court shall in all case, 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, and require the applicant-
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the Order granting the injunction has been made, a copy of the application for injunction together with-
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
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(iii) copies of documents on which the applicant relies, and
(b) xxx xxx xxx"
9. The proviso inserted by Act No.1 of 1976 makes it clear that, when the Court proposes to grant injunction without giving notice of the application to the opposite party, being of the opinion that object of granting injunction itself would be defeated by delay, shall record the reasons as to why an ex parte order of injunction is being passed. It is for the said reason, it is mandatory for the Court, granting an order of ex parte injunction, to record the reasons. In the following decisions the Apex Court has held thus:
(a) In the case of United Commercial Bank vs. Bank of India and others1 in the matter of grant of injunction by a Court, the Apex Court, at para Nos.51 and 52, has held as under:
"51. In the instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the 1 (1981)2 SCC 766
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NC: 2024:KHC:38879 MFA No.5734 of 2024 balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment 'under reserve', nor was it justified in holding that the documents were 'clean'. The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were 'clean' or 'unclean' is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no 'due presentation' of the bills of exchange and their refusal.
52. No injunction could be granted under Order 39 Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view of the
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NC: 2024:KHC:38879 MFA No.5734 of 2024 legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs."
(b) The apex Court, in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others2, in the matter of grant of ex parte injunction, has held at para Nos.34 and 35 as under:
"34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "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". 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 2 (1993)3 SCC 161
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NC: 2024:KHC:38879 MFA No.5734 of 2024 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 the 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 claims 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. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance therewith will not vitiate the order so
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NC: 2024:KHC:38879 MFA No.5734 of 2024 passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, 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 all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazir Ahmed v. Emperor. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare.
35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the
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NC: 2024:KHC:38879 MFA No.5734 of 2024 reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:
"Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.... An ex parte injunction should generally be until a certain day, usually the next motion day...."
(c) In the case of Morgan Stanley Mutual Fund vs. Kartick3, the Apex Court, at para No.36, has enumerated the principles which govern the grant of ex parte injunction by a Court which reads as under:
"36. As a principle, ex parte injunction could be granted only under exceptional circumstances.
3(1994)4 SCC 225
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NC: 2024:KHC:38879 MFA No.5734 of 2024 The factors which should weigh with the court in the grant of ex parte injunction are--
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.
(f) even if granted, the ex parte injunction would be for a limited period of time.
(g) General principles like prima facie case, balance of convenience pand irreparable loss would also be considered by the court."
10. The impugned order is bereft of any reason and without any reference or any material assume that the plaintiffs have a prima facie case. The trial Court has not touched upon the balance of convenience nor whether the
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NC: 2024:KHC:38879 MFA No.5734 of 2024 plaintiffs would be put to irreparable loss if no injunction is granted. The jurisdiction under Article 227 of the Constitution should be exercised sparingly having regard to the facts and circumstances of the case. In the instant case, the ex parte temporary injunction was granted on 14.08.2024 and the appellants have filed objections to the said IAs. The period of 30 days would expire on 14.09.2024, even after the objections are filed, the trial Court has not disposed of the applications, but the ex parte order has been continued.
11. After arguing for some time, both counsel submit that, pending consideration of I.A.Nos.1 and 2 by the trial Court, both the parties to be directed to maintain status quo.
12. The said submission appears to be reasonable and fair enough, without adverting to the merits and demerits of the case, this Court pass the following:
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NC: 2024:KHC:38879 MFA No.5734 of 2024 ORDER i. The miscellaneous first appeal stands disposed of.
ii. Pending consideration of I.A.Nos.1 and 2, the parties are directed to maintain status quo.
iii. The trial Court to pass appropriate orders on I.A.Nos.1 and 2 by considering the objections filed by the defendants.
iv. Orders on I.A.Nos.1 and 2 to be passed as expeditiously as possible.
Sd/-
(K.S. HEMALEKHA) JUDGE ABK List No.: 1 Sl No.: 3