Karnataka High Court
Quikr India Private Limited vs Mr Bhushan Jangle on 20 November, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
M.F.A. No.7761 OF 2018 (CPC)
BETWEEN:
Quikr India Private Limited
A company registered under the
Companies Act, 1956 having its
Registered office at No.106
Rachanhaelli Village
167, SRK Nagar Post
Krishnarajuram Hobli
Bengaluru-560 045.
Represented by its authorized signatory
Mr. Savio Alosious
... Appellant
(By Sri. Aditya Sondhi, Sr.Counsel for
Sri. Arjun Rao, Advocate)
AND:
1. Mr. Bhushan Jangle
S/o. Mr. Arun Jangle,
Aged about 25 years,
No.1203, Alice Cottage,
26th Cross, HBR Layout,
Bengaluru-560043.
Also at A1-602, New MHADA,
Swadeshi Mill Road,
Sion Chunabhatti,
Mumbai-400022.
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2. OLX India Private Limited
A Company registered under the
Companies Act, 2013, having its
Registered office at Ground Floor
Tower No.3A, DLF Corporate Park
DLF City, Phase-III, M.G.Road
Gurgaon-122 002.
Represented by its Director
3. Mr. Mayur Swamy
S/o. Sidharamayya Shadaxari Swamy,
Aged about 31 years,
Flat No.303 'A' wing,
Lodha Casa Essenza,
Western Express Highway,
Opposite Central Mall and Big Bazaar,
Miraroad (East), Mumbai-401107.
4. Mr. Shubham Deepak Karnewar
Aged major,
Punjabi Society, Flat No.22,
Azad Nagar, Andheri West,
Mumbai-400013.
5. Mr. Suheb Khan
Aged Major,
No.23, 2nd Main, 5th Cross,
Dinnur, Near Shalimar Avenue,
RT Nagar, Bengaluru-560032.
6. Mr. Pratik Shankar
Aged major,
Shastry Nagar Kaju Pada Pipeline,
Kurla West, Mumbai-400072.
Also at: No.885, Bonne Mill,
Chikkabanavara,
Opposite Sapthagiri College,
Bengaluru-560090.
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7. Mr. Rattandeep Gulati
S/o. Jagdish Chander Gulati,
Aged about 37 years,
No.902D, Antartica, Lodha Aqua,
Western Express Highway,
Opposite Central Mall and Big Bazaar,
Mira Road (East),Mumbai-401107.
8. Mr. Deepak Dhamija
S/o. Shyam Lal, Aged Major,
At 45/15, Ashok Nagar,
New Delhi-110018.
... Respondents
(By Sri. S.S.Naganand, Sr.Counsel for
By Sri. Chintan Chinnappa, Advocate for R2)
This M.F.A. is filed under Order 43 Rule 1(r) of the
Code of Civil Procedure, 1908 passed on I.A.No.1/2018
in OS No.6782/2018 on the file of the Principal City Civil
and Sessions Judge, Bengaluru issuing emergent notice
on I.A.No.1 filed under order 39 Rule 1 & 2 read with
Section 151 of CPC.
This M.F.A. coming on for Orders, this day,
the Court made the following:
ORDER
This appeal is filed by the plaintiff in O.S.No.6782/2018 on the file of XVIII Additional City Civil and Sessions Judge, Bengaluru challenging the order dated 19/09/2018. The trial Court declined to grant an ex-parte order of temporary injunction on I.A.No.1.
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2. Learned counsel for the appellant submits that since the trial Court has expressed the opinion that prima-facie grounds for grant of an ex-parte order of temporary injunction do not exist, this appeal is maintainable.
3. Learned counsel for respondent argues that the appeal is not maintainable. If the court declines to grant exparte order, the remedy available to the plaintiff is to argue on application after appearance of the defendant. The court will definitely consider the application on merits.
4. The learned counsel for appellant replies that since the court has expressed an opinion about prima facie case, the appeal is maintainable. He also argues that this court can exercise supervisory jurisdiction under Article 227 of the Constitution. By referring to judgment of the Supreme Court in the case of Nawab Shaqafath Ali Khan and others vs Nawab Imdad Jah 5 Bahadur and Others [(2009) 5 SCC 162], he submits that this appeal can be converted into writ petition.
5. After hearing both sides, it has to be stated that whenever the court declines to grant ex-parte order of injunction by dispensing with notice to defendant, it does not mean that the court has taken a decision on merits. Even for grant of ex-parte order, the court must be satisfied about existence of prima facie case with regard to the injury that the plaintiff suffers in case injunction is not granted by dispensing with notice to defendant. Any opinion that court expresses at the threshold does not give a right to prefer an appeal. If notice on the application is ordered, the court will hear both the plaintiff and the defendant on merits and decide to grant or not to grant injunction; then only aggrieved party gets a right to prefer an appeal. This is well established principle, and therefore the appeal is not maintainable.
6. In regard to conversion of the appeal into writ petition, it needs to be stated that if according to 6 appellant, writ petition is maintainable, permission can be given; it is for the writ court to decide whether writ is maintainable or not. Therefore the appellant is permitted to convert this appeal into writ petition. Memo filed in this behalf is accepted.
7. Lastly the learned counsel for appellant submits that the interim order granted by this court on 11.10.2018 be continued till the appeal is converted into writ petition. I do not think this submission can be considered. Interim order can be granted in a proceeding which is maintainable. Since the appeal is not maintainable, interim order cannot be continued, hence it is vacated.
Registry is directed to take appropriate action for registering this appeal into writ petition.
Sd/-
JUDGE PN