Karnataka High Court
Sri.B.Jayaramaih vs Smt.Gowramma on 22 April, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.17573/2013(GM-CPC)
BETWEEN:
SRI.B.JAYARAMAIH
S/O LATE BHAKTAPPA,
AGED ABOUT 70 YEARS,
RESIDING AT PATTANDUR AGRAHARA,
WHITEFIELD POST,
BANGALORE-66.
... PETITIONER
(BY SRI S V GANESH, ADV.)
AND:
1. SMT.GOWRAMMA
D/O LATE BHAKTAPPA,
W/O LATE VENKATESHAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT NO.242,
RAGHU NIVAS, 9TH CROSS,
KANAKADASA ROAD,
NEW BYAPPANAHALLI,
INDIRANAGARA,
BANGALORE-38.
2. SMT.MUNIVEERAMMA
D/O LATE BHAKTAPPA,
W/O LATE NARAYANAPPA,
2
AGED ABOUT 70 YEARS,
R/AT NO.25/588,
4TH MAIN 4TH CROSS,
VINAYAKA LAYOUT,
WHITEFIELD,
BANGALORE-66.
3. SMT.KEMPAMMA
AGED ABOUT 61 YEARS,
W/O SUBRAMAYAPPA,
AGED ABOUT 60 YEARS,
R/AT PATTANDUR AGRAHARA,
WHITEFIELD POST,
BANGALORE-66.
4. SMT.PAPAMMA
W/O NARAYANASWAMY,
AGED ABOUT 55 YEARS,
R/AT PATTANDUR AGRAHARA,
WHITEFIELD POST,
BANGALORE-66.
5. SMT.KALYANAMMA
W/O SUBRAMAYAPPA,
AGED ABOUT 61 YEARS,
R/AT PATTANDUR AGRAHARA,
WHITEFIELD POST,
BANGALORE-66.
6. M/S. BAGADIA PROPERTIES PVT LTD.
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT
NO.49/23, 19TH MAIN ROAD,
II BLOCK, RAJAJINAGAR,
BANGALORE 10,
REP. BY ITS DIRECTOR,
MR.SURESH.J BAGADIA.
AND ALSO IN:
NO.1040, 8TH MAIN,
5TH BLOCK, 66TH CROSS,
3
RAJAJINAGAR,
BANGALORE-10.
7. SRI.H.J.SIWANI,
S/O MR.J.K.SIWANI,
AGED ABOUT 50 YEARS,
R/AT H.M.GENEVA HOUSE,
PENT HOUSE NO.14,
CUNNINGHAM ROAD,
BANGALORE-52.
8. SRI.H.J.SIWANI
S/O MR.J.K.SIWANI,
AGED ABOUT 51 YEARS,
R/AT H.M.GENEVA HOUSE, PENT HOUSE NO.14,
CUNNINGHAM ROAD, BANGALORE-52.
9. SMT.DILSHAD BEGUM
AGED ABOUT 50 YEARS,
W/O RIYAZ AHMED,
R/AT GANDHI LAYOUT,
WHITEFIELD,
BANGALORE-66.
10.SRI ZAKRIYA
AGED ABOUT 38 YEARS,
R/AT GANDHI LAYOUT, WHITEFIELD, BANGALORE-66.
... RESPONDENTS
(BY SRI C.G. GOPALASWAMY FOR SRI N. PRABHAKAR REDDY,
ADV. FOR R1 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER ON I.A.NO.1 DT.13.12.2012 PASSED BY THE COURT OF
THE I ADDL. CIVIL JUDGE (SR. DN.) BANGALORE RURAL
DISTRICT IN O.S.NO.1599/2012 AND PRODUCED VIDE ANNX-D.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard Sri S.V. Ganesh, learned advocate for the petitioner and Sri C.G. Gopalaswamy, learned advocate for the 1st respondent. Issuance of notice to respondents 2 to 10 who are defendants in the suit, stands dispensed with, since they are only formal parties to this writ petition.
2. Perused the writ petition record.
3. Respondent No.1 - plaintiff has filed O.S.1599/12 on 10.12.12 in the Court of Prl. Senior Civil Judge, Bangalore Rural District to pass a decree of partition and put her in separate possession and enjoyment of her 1/6th share by holding the documents styled as sale deed dated 9.5.1984, sale deed dated 14.5.1999 registered as document No.1028/99-2000 in respect of item No.2 of the suit schedule properties in favour of the defendants 7 & 8 and the documents styled as sale deed registered in respect of item No. 3 of suit schedule properties in favour of the defendants 9 & 10 as not binding on her and grant consequential reliefs. Along 5 with the suit, I.A.1/12 was filed under Order 39 Rules 1 & 2 of CPC, to pass an order of temporary injunction restraining the defendants from alienating suit property or creating any kind of encumbrance during the pendency of the suit. The petitioner is the 1st defendant in the suit. Learned Trial Judge on 13.12.12 considered I.As. 1 & 2. On I.A.2 it was opined that it is necessary to issue notice to defendants before passing any interim order. However, order of temporary injunction as prayed in I.A.1 was ordered to be issued by directing the plaintiff to comply with the requirement under the proviso of Rule 3 of Order 39 of CPC. The suit summons and emergent notice of I.A.II was ordered to be issued returnable by 21.01.13.
4. However, on 14.12.12, the Office of the Trial Court having verified and having noticed that a caveat had been filed by defendant No.1, put up a submission note which reads as under:
" On verification from the computer, by oversight, the caveat has not put up at the time filing of this case. Hence, the caveat petition No.789/12 is put up herewith for your honourable consideration. For orders. "6
Despite the said submission note, injunction order was issued and was even extended on 21.01.13 and also on the subsequent hearing dates and the said order operates even as on date. This writ petition is directed against the said exparte interim order of temporary injunction.
5. Learned Trial Judge while passing the order on I.A.1 has not kept in view the provision under Order 39 Rule 3 of CPC. Reasons which enabled him to pass an order of temporary injunction have not been recorded. The said provision mandates the Trial Court to record reasons when temporary injunction is granted exparte. Learned Trial Judge ought to have kept in view the ratio of law enunciated by the Apex Court, in the following decisions:
" (a) In the case of United Commercial Bank Vs. Bank of India and others, (1981) 2 SCC 766, in the matter of grant of injunction by a Court, Apex Court has held as follows:
"51. In the instant case, the High Court has assumed that the plaintiff had a prima facie case. It has not touched upon the question where the 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.
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(b) In the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others, (1993) 3 SCC 161, in the matter of grant of exparte injunction, Apex Court has held as follows:
"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 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 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 conditions 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 8 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, (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 (2). 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 Ramachandra Keshav Adke v. Govind Joti Chavare, AIR (1975) 1 SCC 915.
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 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.
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(c) In the case of Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225, Apex Court has laid down the principles which govern the grant of exparte injunction by a Court, as follows:
"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. 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 9 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 and irreparable loss would also be considered by the court."
6. The impugned order is bald, laconic and bereft of any reason. The learned Trial Judge has not even made a brief reference to the facts of the case to arrive at a conclusion that there is a prima facie case for consideration and about balance of convenience being in favour of the plaintiff and whether she would suffer any irreparable loss in case of refusal of exparte injunction. Mechanically, the impugned order has been passed. The ratio of decisions noticed supra, has not been followed. Arbitrariness on the part of the learned Trial Judge while passing the order on I.A.1 is apparent.
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7. That apart, caveat having been filed by defendant No.1 and the same having not been put up for consideration as on 13.12.12, at least when the note was put on 14.12.12 the learned Trial Judge ought to have dissolved the ex-parte order of temporary injunction. Learned Trial Judge ought to have heard the learned counsel on both sides on I.A.1 at least on 21.01.2013 and passed a suitable order. For the lapse on the part of the Office of the Trial Court in not putting up the caveat, the defendant cannot suffer. Learned Trial Judge has committed material irregularity in extending the exparte order of temporary injunction on 21.01.13, 14.02.13 and also on 09.04.13. The impugned order and the orders passed thereafter, extending the exparte order of temporary injunction are ex-facie arbitrary and wholly illegal & hence, unsustainable.
In the result, writ petition is allowed and the impugned order is quashed. However, Trial Court is directed to consider I.As.1 & 2 on their merit and in 11 accordance with law, uninfluenced by the observations made herein, which are limited for consideration of the legality and the propriety of the order passed on 13.12.12 and its extension.
Since the suit is due to be taken up on 25.04.2013, both parties shall appear before the Trial Court on the said date and the Trial Court shall pass order on I.As. 1 & 2 expeditiously.
No costs.
Sd/-
JUDGE sac*