Karnataka High Court
M/S Legacy Global Project Private ... vs Sri. Shivakumar on 30 November, 2017
Equivalent citations: AIR 2018 KARNATAKA 33, 2018 (1) AKR 404, (2018) 182 ALLINDCAS 833 (KAR), (2018) 2 CIVILCOURTC 460, (2018) 1 KANT LJ 271, (2018) 2 ICC 700, (2018) 2 KCCR 1088
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 30th DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No. 39/2017 (CPC)
BETWEEN
M/s. Legacy Global Project Private Limited,
Represented by its Director,
A Company incorporated under
Indian Companies Act, 1946,
Having registered Office at No.333,
Nova Miller, Thimmaiah Road,
Bengaluru - 560052.
...APPELLANT
(By Sri. M.G. Kumar, Advocate)
AND
Sri. Shivakumar,
S/o late M. S. Mahadevaiah,
Aged about 47 years,
r/a No.109, 4th Main,
H.V. Rangappa Layout,
Magadi Main Road,
Bengaluru - 560 079.
...RESPONDENT
(By Sri. K. Srihari, Advocate)
This Miscellaneous First Appeal is filed under Order
43 Rule 1(r) of CPC, against the order dated 19.09.2016
passed on I.A.No.1 in O.S.No.652/2016 on the file of the
Senior Civil Judge, JMFC, Devanahalli, issuing temporary
2
injunction notice of I.A.No.1 filed under Order 39, Rule 1 and
2 CPC.
This Miscellaneous First Appeal having been heard
and reserved on 08.11.2017, coming on for pronouncement
this day, the court pronounced the following :
JUDGMENT
This appeal is filed by the defendant in O.S.No.652/2016 on the file of Senior Civil Judge,
Devanahalli; he has challenged the order dated 19.09.2016 passed in the said suit. The events that have led to preferring this appeal are as follows:
2. The respondent being the plaintiff instituted a suit for declaration and possession in respect of property measuring 1 Acre 26 guntas in Sy.No.265 (Old Sy.No.46/7) of Doddajala village, Jala Hobli, Bengaluru North Taluk. The plaintiff also filed two applications under Order 39 Rules 1 and 2 Civil Procedure Code seeking an order of temporary injunction to restrain the appellant/defendant from alienating the suit property pending disposal of the suit and 3 direct the defendant to maintain status quo in respect of the suit property. The plaintiff prayed for passing ex parte order of injunction on these two applications. The trial court on being convinced that the plaintiff had made out a case for passing an ad interim order of temporary injunction as per I.A.No.1, passed an order on 19.09.2016 restraining the defendant from alienating the suit property in any manner till the next date of hearing. So far as another application is concerned the trial court did not pass any order and opined that without hearing the defendant, the relief sought for in I.A.2 could not be granted. The trial court having passed an exparte order on I.A.No.1 on 19.09.2016 posted the case to 3.2.2017 for appearance of the defendant. Aggrieved by this order, the defendant has preferred the present appeal.
3. The learned counsel for the appellant raises two points, the first being that the trial court, after granting an exparte order of temporary injunction gave three days time for complying under Order XXXIX Rule 3 CPC, which is opposed to mandate of law. Second point is that the application for temporary injunction has to be disposed of 4 within 30 days from the date of granting an exparte order according to Order XXXIX Rule 3 A CPC. Contrary to this, the trial court, after passing an order on 19.09.2016, posted the case to 03.02.2017. Thus the trial court has grossly flouted the mandatory requirement to dispose of the application within 30 days from 19.09.2016. He placed reliance on the judgment of the Hon'ble Supreme Court in A. Venkatasubbaiah Naidu Vs. S. Chellappan and other [(2000) 7 SCC 695] to argue further that inaction of the trial court has given rise to prefer an appeal and secondly to recommend for taking disciplinary action against the trial court judge.
4. The learned counsel for respondent submitted that appeal could be allowed, as even according to him, the trial judge has committed an error.
5. I have perused the impugned order. Its operative portion reads as below:
"ORDER As per I.A.No.1 Issue an ex-parte ad- interim order of temporary injunction against 5 the defendant restraining him from alienating the suit schedule property in any manner till next date of hearing.
The plaintiff to comply Order 39 Rule 3 of CPC in respect of I.A.No.1.
Issue temporary injunction notice, of I.A.No.1, emergent notice of I.A.No.2 and suit summons to the defendant.
It is made it clear that, if the office found deficit process fee or plaint copies, same shall be comply within three days, or else the interim order will be cancelled automatically, in respect of I.A.No.1.
Returnable by : 03.02.2017."
6. The reason for extracting the operative portion of the impugned order is to make it clear that the trial court did not give three days time for reporting compliance under Order XXXIX Rule 3 CPC. It just gives a meaning that compliance should be reported within 24 hours and nothing more. With regard to next part of the order giving three days time for paying deficit process fee or furnishing copies of plaint for issuance of summons to the defendant, it appears that the learned counsel for appellant has misunderstood 6 this portion of the order of trial court. Once the court says that compliance under Order XXXIX Rule 3 CPC should be made, the obvious meaning is that it should be within 24 hours. Passing further order for issuance of summons, cannot in any way be linked with the direction given to plaintiff to comply with Order XXXIX Rule 3 CPC. This argument is therefore worth rejection.
7. The second point relates to disposal of application for temporary injunction within 30 days from the date when the court grants or passes an ad interim order by dispensing with notice to defendant. The Hon'ble Supreme Court in A. Venkatasubbaiah Naidu (supra) has held as below:
"17. The aforesaid Rule casts a three-
pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the 7 aforesaid time the Court has to record the reasons thereof in writing".
8. The learned counsel for appellant has also placed reliance on two judgments of this court - 1) Ravishankar Chudamani Sarnaik Vs. S.R. Krishnam Raju [MFA.No.6072/2008] and 2) Shankar Gowda Lingana Gowda Patil vs. R.Govinda [MFA.No.7840/2005]. In these two decisions also, it is held that the application for temporary injunction is required to be disposed of within 30 days of ad interim order is granted by dispensing with notice to defendant. There is no need to refer to another judgment in the case of Manipal Centre Apartment Owners' Association Vs. S. Rajendra Babu [Criminal Appeal No.910/2007 c/s Criminal Appeal No.909/2007], as it is no way related to point involved in this case.
9. The judgment of the Supreme Court in A. Venkatasubbaiah (supra) is a clear answer to the argument put forward by appellant's counsel that a date beyond 30 days cannot be fixed after passing of ad interim order. There is no such restriction, but a real intriguing 8 aspect is disposal of application within 30 days. Order XXXIX Rule 3A CPC reads as below:
"3-A. Court to dispose of application for injunction within thirty days.- Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability".
10. Careful reading of Order XXXIX Rule 3A CPC makes it very clear that need to dispose of the application arises when the aggrieved party appears before the court and states that his interest is affected or prejudiced on account of the order granted by the court. In other words, the defendant should file his written statement and statement of objection to the application or an application under Order XXXIX Rule 4 CPC and insist on the Court for disposing of the application for temporary injunction. Once the court grants an ad interim order, it means it has applied its mind for granting an order on being satisfied with plaintiff's case. 9 If the court has to come to a contrary opinion, it is duty of the defendant to make out a case for vacating or modifying the order. The court may either decide to confirm the order already passed by it or vacate the order; it is a decision to be taken after hearing both plaintiff and defendant. But if the defendant, without filing written statement or statement of objection to application or an application under Order XXXIX Rule 4 CPC, complains that the mandate of Order XXXIX Rule 3A CPC has been flouted, I think, he has no right. In fact if strict construction to Order XXXIX Rule 3A CPC is given, it comprehends disposal of the application on merits, i.e., by assessing the plaintiff's as also the defendant's case, not just by considering the plaintiff's case alone. Although the court adjourns the case beyond 30 days after passing ad interim order, the defendant can get the case preponed, file statement of objections and written statement and insist on deciding the application. In fact, the very purpose of requiring the plaintiff to comply with Order XXXIX Rule 3 CPC is to put the defendant on notice well in advance before the summons issued by the court is served on him so that 10 he can urge for disposal of the application if he is really aggrieved by the ad interim order granted by the court. The defendant gets no right to complain against the trial court, if he fails to submit his written statement and statement of objections. Even if he cannot file written statement on the first day, he should file it before expiry of 30 days and also be ready to argue.
11. In the case on hand, it appears that the appellant who is defendant in the suit has not filed his written statement and objections statement to the application, nor has he filed an application under Order XXXIX Rule 4 CPC for vacating the order. When the learned counsel for appellant is questioned whether written statement and objection statement have been filed, he submitted that it was not necessary and he argued that it was the duty of the court to have disposed of the application within 30 days. This is untenable and unrealistic argument. When the learned counsel submitted that the appellant's interest has been seriously affected and thereby that order needed to be vacated, it is the duty of the appellant to assist the court, it 11 is not understandable as to how and on what basis, the court can take a contrary view to vacate the order. This kind of approach and stand by the defendant is deplorable.
12. The Supreme Court in A. Venkatasubbaiah (supra) has held that the defendant gets a right of appeal if the application is not decided within 30 days. Certainly, that right is always available only when he is ready to argue by putting forth his defense. In the unreported decisions of this court cited by appellant's counsel, a situation as appears in this case is not discussed.
13. Very interestingly, the respondent's counsel says no objection for allowing the appeal. Appeal or any other cases cannot be allowed on concession shown by the respondent's counsel. Hence, the discussion is concluded by holding that the appeal is devoid of merits. Appeal is dismissed with costs.
Sd/-
JUDGE Sd