Sri. Annayappa vs Sri. Narayanappa and Sri. Ramakrishnappa

A.N. Venugopala Gowda, J.—Petitioner is the plaintiff and respondents are the defendants in O.S. No. 337/2013 on the file of the Principal II Civil Judge, Bangalore Rural District. The suit was filed on 23.02.2013 to pass a judgment and decree of mandatory injunction against the defendants to remove the walls, pillars, construction work and construction labours from the plaint schedule ''A'' property and grant permanent injunction, restraining the defendants and persons claiming through them from alienating or interfering with the possession and enjoyment of the suit property. Along with institution of the suit, the plaintiff moved I.A. 1/2013 under Order 39 Rule 1 and 2 of CPC to dispense with issue of notice and pass an ad-interim exparte order of temporary injunction restraining the defendants or persons claiming under them and the defendants, in any way putting up or continuing the construction work on the suit property, pending disposal of the suit. He also moved I.A. 2/2013 under Order 39 Rule 1 and 2 of CPC to dispense with notice and pass an ad-interim exparte order of temporary injunction restraining the defendants or any one claiming under the defendants from in any way alienating or creating third party interest on all the suit property pending disposal of the suit. On 26.02.2013, after noticing that the 1st defendant is the mother and 2nd defendant is the son of the plaintiff and the RTC extracts and other revenue documents of the suit property are in the joint names of the plaintiff, 1st defendant and one Karagappa and noticing the prayers in I.As. 1 and 2, the learned trial Judge opined that as far as I.A. 2 is concerned, the plaintiff is having prima facie case and passed the following order:-

The defendants are hereby restrained from alienating or creating any third party interest, till next date of hearing.

Issue order on temporary injunction. Emergent notice on I.A.I and I.A.II and suit summons to the defendants and after compliance of 39 Rule 3(a) of CPC, returnable by 26.03.2013.

This writ petition was filed on 07.03.2013 to directing the trial court to decide I.A. No. 1 forthwith and to grant consequential reliefs.

Perused the writ record.

The relevant portion of Section 104 of CPC reads thus:

104.(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

(i) any order made under rules from which an appeal is expressly allowed by rules;

Order 43 Rule 1 of CPC reads as follows:-

Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:-

(r) an order under rule 1, rule 2 (rule 2A), rule 4 or rule 10 of Order XXXIX;

Order 39 Rule 1 of CPC reads thus:

Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged, alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

The Trial Court has granted an exparte order of temporary injunction prayed in I.A. 2. However, upon perusal of the plaint averments, affidavit annexed to I.A. 1 and the documents on which the plaintiff has relied, it has directed to issue of emergent notice on I.A. 1. The suit summons and the notice on I.As. 1 and 2 were ordered to be returned by 26.03.2013. There is no compulsion for the Trial Court to pass an exparte order of temporary injunction as prayed in I.A. 2. The Court in the normal circumstances is obliged to give a notice to the defendant before passing the order. It is only by way of very exceptional contingency that the Court can pass an ad-interim order of temporary injunction.

Since, emergent notice on I.As. 1 and 2 and the (suit summons given was ordered to be returned by 26.03.201.3, I do not find any justification to entertain this writ petition and direct the Trial Court to decide I.A. 1 forthwith Under the circumstances, the writ petition stands rejected. However, the Trial Court shall pass further orders on I.As. 1 and 2 expeditiously since the plaintiff and the 1st defendant are senior citizens.