Fortius Infradevelopers LLP vs Narasamma

Aravind Kumar, J.—6th defendant has filed this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure challenging the correctness of the order passed by 1st Additional Senior Civil Judge, Bangalore Rural District, Bangalore, granting an ex parte order of Temporary Injunction on 13.08.2014.

In the normal course, this Court would have refrained from interfering with such order by reserving liberty to the parties to approach the jurisdictional Court. However, the extraordinary circumstances or the exceptional circumstances present in the instant case have perforced this Court to examine the correctness or otherwise of the said order. Rule 3A of Order 39 CPC would indicate where an injunction had been granted without giving notice to the opposite party, such Court should make an endeavour to finally dispose of the application within 30 days from the date on which injunction was granted and where it is unable to do so, it has to record reasons. In the instant case, after the order of exparte temporary order of injunction was granted on 13.08.2014 the matter was ordered to be listed on 18.09.2014. However, appellant - 6th defendant filed an application to advance the case to 25.08.2014 along with I.A. Nos. II and III. Thereafter, matter came to be adjourned from time to time namely, from 25.08.2014 to 27.08.2014, from 27.08.2014 to 01.09.2014, from 01.09.2014 to 08.09.2014, from 08.09.2014 to 09.09.2014, from 09.09.2014 to 18.09.2014, from 18.09.2014 to 22.09.2014, from 22.09.2014 to 06.10.2014, from 06.10.2014 to 13.10.2014 and from 13.10.2014 to 15.10.2014. Thus, it could be seen from the order sheet of the trial Court the exparte order of temporary injunction which was granted on 13.08.2014 was not confirmed, varied or set aside within 30 days from the date of grant of such order. As such, the appellant - 6th defendant has approached this Court invoking appellate jurisdiction. The Hon''ble Apex Court in the case of A. Venkatasubbiah Naidu Vs. S. Challappan and Others, has held that in view of the mandate of proviso to Rule 3 of Order 39 CPC to the effect that where the Court after granting an order of temporary injunction does not dispose of said application within 30 days and such Court fails to decide the application or vacate exparte temporary injunction, such order is deemed to be a final order for purposes of filing an appeal under Order 43 Rule 1(r) CPC. Hence, this Court is of the considered view that present appeal is to be held as maintainable and as such, same is being entertained by this Court.

Plaintiffs have filed a suit for declaration and injunction in O.S. No. 1288/2014. The said suit was initially filed on 24.07.2014 and same came to be registered as F.R. No. 1218/2014. Registry had raised certain objections, which were required to be complied by plaintiffs. In the meanwhile, caveat petition came to be filed by defendant No. 2 i.e., respondent No. 5 in the present appeal on 26.07.2014, and it came to be registered as No. 692/2014. Registry has put up the said caveat petition in the file of present suit as could be seen from the order sheet appended to the present appeal memorandum at Annexure ''A''. A note has also been made by the Registry to the following effect:

"Suit filed on 24/7

Caveat filed. 26/7.

Office objections- court fee received -complied."

Appellant herein who is arrayed as 6th defendant had also filed caveat petition on 26.07.2014 which came to be numbered as No. 694/2014. However, for reasons best known, Registry is said to have not put up the caveat petition filed by appellant -6th defendant.

It is thereafter, matter came to be listed before the Court on 08.08.2014 and on said date, learned trial Judge has heard the matter on I.A''s. I and II and posted it for orders to be pronounced on 11.08.2014. However, the orders were not pronounced and it came to be adjourned to 12.08.2014 and thereafter to 13.08.2014. On said date i.e., 13.08.2014 order came to be pronounced by issuing emergent notice on I.A. II to defendants and granting an exparte order of Temporary Injunction restraining defendants from causing damage to the crop grown in the suit schedule properties and from causing damage to the crop grown in the suit properties. Said order was to be in operation till next date of hearing. It is not in dispute that as on the date of order under challenge in this appeal, the appellant who had been arrayed as 6th defendant, had also filed caveat petition as noticed herein above and same had been numbered as No. 694/2014. The said caveat petition by appellant- 6th defendant, was filed on 26.07.2014 as is evident from the office copy of the acknowledgement produced along with the present appeal memorandum at Annexure ''J''. For reasons best known, this caveat was not put up by Registry. In the instant case, the caveat that came to be filed by 2nd defendant i.e., Caveat No. 692/2014 though had been put up by the Registry on the file of O.S. No. 1288/2014 and not noticed by the trial Court, undisputedly notice was not ordered on the caveator.

Perusal of the provision governing the issue, namely, Section 148-A of CPC, would indicate appropriate procedure required to be followed by the Court where a caveat has been filed is to call upon the plaintiff or the counsel for plaintiff to serve upon the caveator or his counsel copies of the plaint and interlocutory applications together with intimation of the date on which they intended to move the Court and plaintiff has to file an acknowledgement of such service upon the caveator or his counsel. It is only thereafter, Registry will prepare a note for the Court about the caveat having been entered and caveator having been served, whereupon the Court would fix the date of hearing or in the alternate, direct the plaintiff that Caveator be notified of the date so fixed in the event of copies of plaint and LA having not been served. Based on the said note made by the Registry, Court would take up the matter by hearing the learned Advocates and pass any interim order that may be necessary to protect the interest of both the parties. Whenever a caveat petition is filed, a duty is cast on the Court to see that the caveator is issued a notice. Without hearing the caveator, it is neither desirable nor permissible for the Court to pass any order either interim order or otherwise, since the very purpose of filing of caveat would be defeated or Section 148-A would become otiose.

In fact, a coordinate Bench of this court in the case of G.C. Siddalingappa Vs. G.C. Veeranna, has considered the contours of Section 148A and held as under:

"6. The question that arises for consideration is:-

"Whether the learned Civil Judge could have passed an ex parte order in a case where the vacant (caveat?) was filed".

Section 148-A has been inserted in the Civil P. C., by the Central Act No. 104 of 1976. The object of inserting this provision in the Code is to afford an opportunity of hearing. before passing an interim order, to any person who is going to be affected by the interim order to be passed on an application which is expected to be made or has been made in a suit or proceeding instituted or about to be, instituted in a. Court. Therefore. any person. who claims a right to be heard, before passing an interim order in any suit or a proceeding instituted or about to be instituted in a Court, has been given a right to lodge a caveat in respect thereof, by sub-section (1) of Section 148-A of the Civil P.C. As per sub-section (2) thereof, the person who files a caveat is required to serve a notice of the caveat on the person by whom the application has been or is expected to be made under sub-section (1) thereof. The service of notice as contemplated by sub-section (2) thereof, need not take place before or at the time of the filing of a caveat. The language of sub-section (2) does not call for such an interpretation in as much as it provides that the person by whom the caveat is lodged shall serve a notice'' of the-caveat, Therefore, the service of notice of the caveat can take place even after the caveat is filed. What all the caveator is required to do is to produce a postal receipt along with the caveat for having sent the notice of the caveat by registered post with acknowledgment due. The service of notice as contemplated in subsection (2) is relevant only for the purpose of sub-section (4) thereof which makes it obligatory on the applicant who seeks an interim order to furnish to the caveator a copy of the application and also the copies of any paper or document which the applicant wants to rely upon in support of his application. Thus, when once a caveat is filed under sub-section (1), irrespective of the fact as to whether or not the applicant or an intended applicant is served with the notice of the caveat as per sub-section (2) thereof, as per sub-section (3) thereof, it becomes obligatory on the part of the Court to serve a notice on the caveator of any application filed for an interim order affecting'' the caveator. The provision regarding service of notice as contained in sub-section (3) mandatory and non-compliance with it defeats the, very object of introducing Section 148-A. Consequently, it follows that the breach of sub-section (3) vitiates the order passed thereof."

Keeping the above principles laid down in Siddalingappa''s case referred supra in mind and facts on hand are examined, it would indicate that the suit in question came to be filed on 24.07.2014. It was not registered as a suit, but FR No. 1218/2014 was assigned since plaintiff had to pay deficit court fee and even before it was assigned with the suit number, the caveat petition came to be lodged by 2nd and 6th defendants against plaintiffs on 26.07.2014 and 10 days thereafter, suit came to be registered by the Registry by assigning the suit number i.e., on 07.08.2014 and the matter was assigned to the I Additional Senior Civil Judge by the Prl. Senior Civil Judge, Bangalore Rural District, Bangalore, vide order dated 08.08.2014. The order sheet would clearly indicate that even when such assignment was made, caveat petition No. 692/2014 was very much available on record. In fact, when the matter was taken up for consideration by the trial Court on 08.08.2014, note made by the Registry indicate that caveat petition No. 692/2014 had been filed. Despite such note made by the Registry, for reasons best known, the trial Court did not issue notice to the caveator in the order under challenge. Trial Court by its order which is under challenge has noticed that caveat petition has been filed subsequent to filing of the suit. Though no reasons have been assigned in this regard, it is obvious for the said reason, Court seems to have not issued notice to the caveator.

Learned Advocates appearing for both the parties would vehemently assert their claim for possession over the suit schedule property and this Court is not examining the said contention in as much as the order passed by trial Court without notifying caveators particularly when caveat had been lodged by 2nd defendant as also 6th defendant (though it was not put up by Registry), order of temporary injunction came to be passed, which cannot be sustained and as such, same is being set aside by remitting the matter back to the trial Court to consider the application, I.A. I, afresh on merits and pass orders in this regard after affording opportunity to both parties. Though several contentions have been raised with regard to possession of the suit schedule property, I am of the considered view that if any opinion is expressed at this stage, it is likely to prejudice either of the parties. Hence, no opinion is expressed in this regard.

Mr. Naga Reddy, learned counsel appearing for plaintiffs namely, respondents 1 to 3 in this appeal, submits that an application has been filed under Section 24 of CPC, for transferring the suit in question to the Prl. Civil Judge (Sr. Dn.), Bangalore Rural District, since the Presiding Officer of said Court is on long leave, Sri K.G. Raghavan, learned senior counsel appearing on behalf of 6th defendant, who has filed the present appeal fairly submits that he would have no objection for the said matter being taken up by any Court to which the Prl. District Judge may assign. Sri G. Krishnamurthy, learned Senior Advocate appearing on behalf of Respondents 5 to 8 (defendants 2 to 5) would also support the submission made by Sri K.G. Raghavan, learned Senior Counsel. Their submission is placed on record. In the light of submissions made by learned counsel for plaintiff and learned Sr. Advocates, Prl. District Judge would be at liberty examine the petition filed under Section 24 of C.P.C., and pass appropriate orders thereon.

In view of the discussion hereinabove, I proceed to pass the following:

JUDGMENT

(i) Appeal is hereby allowed.

(ii) Order dated 13.08.2014 passed on I.A. I by I Addl. Senior Civil Judge, Bangalore Rural District, is hereby set aside.

(iii) I.A. No. 1 filed by plaintiff before the trial Court is returned to its file with a direction to dispose of said I.A. No. 1 on merits in accordance with law and it shall not be influenced by any observation made by it in the order, which is under challenge in the present appeal and same shall be expeditiously disposed of at any rate within 25 days from the next date of hearing, which is stated to be 05.11.2014.

In view of disposal of appeal itself, I.A. I/2014 filed in this appeal for stay does not survive for consideration and same stands dismissed.