Sri Raju B V vs Gemini Shares And Stocks Private ... on 6 July, 2022

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Karnataka High Court

Sri Raju B V vs Gemini Shares And Stocks Private ... on 6 July, 2022

Bench: B.M.Shyam Prasad

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 06TH DAY OF JULY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

        MISCELLANEOUS FIRST APPEAL NO.4735/2022(CPC)

BETWEEN:

SRI RAJU B.V
S/O LATE VEDAMURTHAPPA GOWDA
AGED ABOUT 55 YEARS
AISHWARYA NILAYA, NO.1104
11TH CROSS, BALAJI LAYOUT
MALLATHAHALLI
BANGALORE -56
                                               ... APPELLANT
(BY SRI. H. DEVENDRAPPA, ADVOCATE)

AND:

1.     GEMINI SHARES AND STOCKS PRIVATE LIMITED
       A COMAPNY INCORPORATED UNDER
       THE COMPANIES ACT 1956
       AND HAVING REGISTERED OFFICE AT
       COTTAGE NO 4, BANGALORE PALACE
       VASANTH NAGAR POST
       BANGALORE -52
       REP BY AUTHORIZED SIGNATORY
       MR KUMAR CHENNABASAVAGOWDA PATIL

2.     THE COMMISSIONER
       BANGALORE DEVELOPMENT AUTHORITY
       KUMARA PARK WEST
       BANGALORE
                                            ... RESPONDENTS
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
01.07.2022 PASSED ON I.A. NO. 2 IN O.S.NO.4222/2022 ON THE
FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BENGALURU (CCH-43), ISSUING AN EMERGENT NOTICE ON
I.A.NO.2 AND SUIT SUMMONS TO THE DEFENDANTS RETURNABLE
BY 26.07.2022.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The plaintiff in O.S.No.4222/2022 on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru City (for short, 'the civil Court'), has impugned the civil Court's order to issue emergent notice on I.A.No.2, an application for temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (for short, 'CPC') and to issue suit summons without granting ex-parte order. This Court in M.F.A.No.3837/2018 (CPC), which is decided on 21.12.2018, has taken a view that a plaintiff in such circumstances cannot avail the remedy under Order XLIII Rule 1(r) of CPC and must necessarily avail remedy otherwise in law.

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Sri. H.Devendrappa, the learned counsel for the appellant, submits that the appellant may be permitted to convert this appeal into a writ petition.

Subject to all just exceptions in law, the appellant is permitted to convert this 'Miscellaneous First Appeal' into a 'Writ Petition' under Article 227 of the Constitution of India. For statistical purposes, the appeal stands disposed of.

SD/-

JUDGE RB

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