IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS ON THE 5TH DAY OF OCTOBER 2005

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

M F A No.7840/2005 (C.P.C.)

BETWEEN:

SHANKARGOUDA LINGA GOUDA PATIL

S/o Late LINGANA GOUDA

AGED ABOUT 46 YEARS

NO. 6/3, I FLOOR,

CHANDAVAN

5TH MAIN, KUMARA PARK WEST

BANGALORE – 560020                                                                     Appellant

(BY: M G KUMAR LAW FIRM)

And

R. GOVINDAPPA

S/O MAVALLI RAMAIAH

AGED ABOUT 68 YEARS

NO. 57, NETHAJI CIRCLE

OPP SRINIVAS KALYAN MANTAPPA

MATHIKERI

BANGALORE -560054                                                                      Respondent

(BY SRI: G KRISHNA MURTHY, ADVOCATE)

MFA FILED UNDER ORDER 43 RULE 1 (R) OF CPC AGAINST THE ORDER DATED 22.02.05 PASSED ON IA. NO. 2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC FOR TEMPRARY INJUNCTION IN O.S. NO. 462/05 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR. NO.), BANGALORE RURAL DISTRICT, BANGALORE, DIRECTING BOTH THE PARTIES TO MAINTAIN STATUS QUO TILL THE NEXT DATE OF HEARING AND EXTENDING THE SAME FROM TIME TO TIME.

JUDGEMENT

 

The matter coming on for admission is taken up for final disposal having regard to the short question of law involved.

2. The facts are that the respondent had filed a suit for declaration and injunction and had also moved an interlocutory application for temporary injunction. The suit is coming on for hearing in the first instance, the court had passed an order directing both theparties to maintain status quo. The Court did not assign any reason nor did the Court direct the respondent to take steps in compliance with order XXXIX Rule 3 (A) of the code of civil procedure, 1908. On appearance of the appallant, the Court had adjourned the matter further while extending the interim order granted on the earlier occasion. Thereafter, it had been adjourned once again by four months. It is at this stage that the appallant has filed the present appeal.

3. Shri. M.G. Kumar, learned counsel appearing for the appellant contends that the Supreme Court in the case of A. Vekatasubbiah Naidu Vs. Challappan and others reported in AIR 2000 Supreme Court 3032, has laid down that a defendant is not precluded from filing an appeal against an ex parte order of injunction though he could approach the same court which passed the ex parte order for any relief. Secondly, he would also rely on the said judgment to highlight the mandatory requirement under Order XXXIX Rule 3 which mandates that the Court shall record reasons for granting such an order and the Court shall also direct the party to comply with the requirements of furnishing of copy of the plaint and other documents to the defendant. In the instant case, the court has cardinally failed in this regard. There is no mention of reasons for directing the parties to maintain status quo nor did the Court call upon the defendant to comply with the requirements of Order XXXIX Rule 3 and on this short ground, he submits that the order dated 22.02.2005 requires to be set aside.

4. Learned counsel for the respondent on the other hand submits that the appellant has not appeared on the date of hearing and the case was adjourned after the Court had directed the parties to maintain status quo. The object of serving the defendant with the applications or the plaint was rendered redundant and the non-compliance if any was deemed to be condoned on the next date of hearing on appearance of the defendant. The appellant in any event, has not raised any objection in this regard. Further, he would rely on the judgment of Kidcha LInge Gowda and others, Vs xxxxxxx and another reported in AIR 1974 Karnataka 63 (V 61 C 26), wherein, this Court had occasion to consider a situation where after hearing both parties to a suit the application was adjourned for hearing on merits, with a direction to both the parties to maintain status quo. In appeal before this Court it was held that such an order cannot be treated as the one under Order XXXIX Rule 1. Hence, would not be appealable under Order XLIII Rule 1 (r).

5. Learned counsel for the respondent would further submit that since the ex parte order was a direction to both the parties to maintain status quo it cannot be construed as an order passed ex parte.

6. Having regard to the facts and circumstance of the case, I find force in the contention of the appellant. Yhe trial was failed to comply with the mandatory requirement under order XXXIX Rule 3. The decision relied on by the respondent is not in relation to an order passed ex-parte and is hence not relevant. On the other hand in the face of the judgment of the Supreme Court in the case of a A Venkata Subbiah Naidu supra – the appeal is to be allowed. Accordingly, the order of the trial court in challenge is set aside. Further, the trial Court shall proceed to hear the application of the respondent for temporary injunction and decide it in accordance with law.