Karnataka High Court
Beau Jhelum vs Sri Ramesh K R on 20 August, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.5034/2014 (CPC)
BETWEEN:
1. BEAU JHELUM TRADERS AND
DEVELOPES PVT. LTD.,
REP. BY ITS AUTHORIZED SIGNATRORY
SRI. S.N. SRINIVASAN
NO.48, III FLOOR,
HITANANDA-2
LAVELLE ROAD
BANGALORE-560 001.
2. BEAU JHELUM TRADERS AND
DEVELOPES PVT. LTD.,
REP. BY ITS AUTHORIZED SIGNATRORY
MR. B.R. VINOD
NO.48, III FLOOR,
HITANANDA-2
LAVELLE ROAD
BANGALORE-560 001. ... APPELLANTS
(BY SRI.UDAY HOLLA, SR. COUNSEL FOR SRI.
KARTHIKEYAN B.S. ADVOCATE)
AND:
1. SRI. RAMESH K.R.
S/O SRI. KRISHNA MURTHY R.S.
AGED ABOUT 39 YEARS
R/AT NO. 87/8
G.R. LAVENDER
B-003, OFF. KOTHANUR ROAD
J.P.NAGAR, 7TH PHASE
IIMB POST
BANGALORE-560 078.
2
2. M/S V. RAHEJA DESIGN
CONSTRUCTION PVT. LTD.,
A COMPANY INCORPORATED
UNDER THE PROVISONS OF
THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT
RAHEJA CHAMBERS
LINKING ROAD & MAIN AVENUE
SANTACRUZ W
MUMBAI-400 054
REP. BY ITS DIRECTORS
SRI. VIJAY RAHEJA
MRS. AVANI RAHEJA
SRI. BALDEV RAJ
3. SRI. V. RAHEJA
S/O SRI. BHAGWAN DAS RAHEJA
AGED ABOUT 63 YEARS
RAHEJA CHAMBERS
LINKING ROAD & MAIN AVENUE
SANTACRUZ W
MUMBAI-400 054.
4. MR. DEV ROY
S/O U.P. ROY
MAJOR
33/1, WILLINGTON STREET
RICHMOND TOWN
BANGALORE-560 025.
5. SRI. S.D. ASHWATHNARAYAN
S/O LATE SRI. S.D. DHAKATAPPA
AGED ABOUT 60 YEARS
6. SRI. S.D. NAGESHWAR
S/O LATE SRI. S.D. CHAKATAPPA
AGED ABOUT 57 YEARS
7. SRI. S.D. SHIVARAM
S/O LATE SRI. S.D. CHAKATAPPA
AGED ABOUT 54 YEARS
8. SRI. S.D. KRISHNA MURTHY
S/O LATE SRI. S.D. CHAKATAPPA
3
AGED ABOUT 51 YEARS
9. SRI.S.D. NARAYANSA
S/O LATE SRI. S.D. CHAKATAPPA
AGED ABOUT 87 YEARS
10. SRI. S.N. SRINIVASA MURTHY
S/O LATE SRI. S.D. NARAYANSA
AGED ABOUT 68 YEARS
11. SRI. S.N.SHIVASHANKAR
S/O LATE S.D. NARAYANSA
AGED ABOUT 63 YEARS
12. SRI. S.S. DHONDUSA
S/O SRI. S.N. SRINIVASA MURTHY
AGED ABOUT 41 YEARS
13. SRI. S.S. SHIVAKUMAR
S/O S.N. SRINIVASA MURTHY
AGED ABOUT 36 YEARS
14. SRI. S.S. SATHYAMURTHY
S/O SRI. S.N. SHIVASHANKAR
AGED ABOUT 40 YEAS
15. SRI. S.S. MADHU SUDHAN
S/O SRI. S.N. SHIVASHANKAR
AGED ABOUT 34 YEARS
16. SRI. S.S. VINAYAKA
S/O SRI. S.N. SHIVASHANKAR
AGED ABOUT 30 YEARS
NO.5 TO 16 ALL ARE
R/AT NO. 10/1,
II CROSS, 6TH MAIN ROAD
GANDHI NAGAR
BANGALORE-560 009. ... RESPONDENTS
(BY EUGENE PRABHU BARRAT, ADVOCATE FOR R-1
NOTICE DISPENSED WITH TO R-2 TO R-16)
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THIS APPEAL IS FILED UNDER ORDER 43, RULE 1
OF CPC PRAYING AGAINST THE ORDER DATED 26.06.2014
PASSED IN I.A.NO.2 IN O.S.NO.4740/2014 ON THE FILE OF
THE 44TH ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
ISSUING SUIT SUMMONS AND NOTICE OF I.A.NO.2 TO
DEFENDANTS.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Udaya Holla, learned Sr. Counsel appearing on behalf of Sri Karthikeyan, for appellant and Sri Eugene Prabhu Barrat, learned Advocate appearing for caveator - respondent No.1. Though matter is listed for admission, by consent of learned Advocates, it is taken up for final hearing.
2. This appeal has been preferred by defendants -3 and 4 being aggrieved by exparte order of temporary injunction granted by XLIV Addl.City Civil & Sessions Judge, in O.S.No.4740/2014 on 26.06.2014 by directing the defendants to maintain status quo.
3. Perusal of said order would indicate that trial Court has considered the pleadings and materials produced by plaintiff along with plaint and as such, it formed an opinion that order of status quo is to be granted instead of granting 5 an order of temporary injunction against defendants till further orders.
4. It is the contention of Sri Udaya Holla, learned Senior Counsel appearing for appellants that order passed by trial Court is erroneous, contrary to the facts of the case and no reasons has been assigned by trial Court as to why it is dispensing with prior notice as mandatorily contemplated under Order 39 Rule 3 CPC and as to why it is granting an exparte interim order. He submits that this Court has time and again held such an order passed without assigning reasons for dispensing the notice is illegal and liable to be set aside. He would also submit that the averments made in the plaint as well as in I.A.I would disclose that there was no privity of contract between appellants and first respondent or is there any privity of contract between first respondent and respondents 5 to 16 who are owners of schedule property and as such, the order passed by trial Court against the appellants and respondents 5 to 16 is oppressive. He would also submit that even on merits the suit itself is liable to be dismissed as barred by limitation. 6
5. Per contra, Sri Eugene Prabhu B, learned Advocate appearing for respondent -1 would submit that the order passed by trial Court is an equitable order and as such, he prays for dismissal of the appeal.
6. In the instant case, trial Court granted an exparte order of status quo on 26.06.2014 by dispensing with notice to defendants. Order of trial Court dated 26.06.2014 reads as under:
"Heard plaintiff counsel on IA-I. On perusal of the documents and averments of IA and also the address of the plaintiff mentioned in the plaint, the registered address of the plaintiff is stated to be as mentioned in the cause title of the plaint, thereby IA-I is allowed.
Heard E.P advocate on office objections. The office has raised an objection regarding value of the transaction pleaded in the plaint and also the duty of plaintiff to pay the court fee on that value of transaction.
I have perused the plaint averments. All that the plaintiff has pleaded before the court that there was a contractual term between himself and the defendant regarding the brokerage amount and in that regard, the plaintiff pleaded that the defendants are making attempts to alienate the property and sought for an order of temporary injunction.7
In view of the pleadings of the plaintiff and considering the facts that it is not a suit for recovery of the brokerage amount said to have been agreed by the defendants to pay it to the plaintiff and further having regard to the relief sought in the plaint that it is only for the relief of permanent injunction, the office objections regarding court fee stands over ruled.
Office has noted that no caveat petition is pending in respect of this suit. The plaintiff has sought for an order of ex- parte temporary injunction against the defendants. Considering the pleadings and the materials produced by the plaintiff along with the plaint, this court is of the opinion that instead of granting an order temporary injunction, if an order of status-quo is ordered against the defendants to maintain status-quo of suit property till further orders the ends of justice will meet.
Accordingly, the defendants are directed to maintain status-quo of the suit property till further orders.
The plaintiff shall comply Rule 3 of Order 39 of CPC by 27-6-2014.
Issue suit summons and notice of IA-II to the defendants.
Call on 10-9-2014."
7. Reading of Rule 3 would abundantly makes it clear that normally, the Court, before granting an injunction, direct notice of the application to be given to opposite party. However, the exception to the Rule can be found in the 8 proviso which came to be inserted with effect from 01.02.1977. Said proviso empowers the Court to grant ad- interim exparte injunction dispensing with notice after recording its reasons as to the object of granting the injunction would be defeated by delay and require the applicant to comply with the conditions stipulated under clause (a) and (b) thereunder.
8. Perusal of the order under challenge already extracted herein above would indicate that no reasons have been recorded by the trial Court for dispensing the notice and granting an exparte interim order . the said order does not indicate as to why the trial Court was of the opinion that injunction had to be granted by dispensing with notice to respondents or non grant of an injunction would be defeated by delay if notice is to be ordered on respondents.
9. Thus, order of the trial Court would clearly indicate requirement of proviso to Rule 3 of Order 39 CPC having not been complied, it suffers from the vice of non adherence of mandatory provision. Time and again, Hon'ble Apex Court as well as this Court has cautioned the trial Courts to assign reasons and record a finding as to why it is dispensing with 9 notice to defendants before granting exparte order of temporary injunction.
10. In view of the aforestated discussion, I am of considered view that order under challenge cannot be sustained and same requires to be set aside on the ground that there is non compliance of proviso to Rule 3 of Order 39 CPC which is mandatory. The interlocutory application filed by the plaintiff for temporary injunction along with the suit which is yet to be disposed of by the trial Court shall be taken up by the trial Court for consideration after affording an opportunity to the contesting parties to file objections to said application and same shall be heard and disposed of on merits and in accordance with law expeditiously, at any rate, within 15 days from date of conclusion of arguments.
11. The next date of hearing has been fixed by the trial Court as 10.09.2014. Learned Advocates appearing for parties in chorus would submit that they would appear before the trial Court on 01.09.2014 and necessary application for advancing the date of hearing would be filed by the appellants for which first respondent - plaintiff would have no objection. Their submission is placed on record. In 10 the light of submission made by learned Advocates, trial Court shall prepone the matter to 01.09.2014 and dispose of the application for temporary injunction accordingly.
12. Hence, I proceed to pass the following:
JUDGMENT (1) Appeal is hereby allowed.
(2) Order passed by XLIV Addl.City Civil &
Sessions Judge in O.S.No.4740/2014
dated 26.06.2014 is hereby set aside.
(3) Appellants are granted liberty to file objections to the application filed by the plaintiff for grant of temporary injunction.
(4) Parties shall appear before trial Court on 01.09.2014 and trial Court as noticed herein above, shall dispose of the interlocutory application for injunction within 15 days from the date of conclusion of arguments of respective learned Advocates.
(5) No costs.
Sd/-
JUDGE *sp