IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL No.5855/2016 (CPC) BETWEEN:
1) Mr. Louis James, S/o Mr. Francis James, Aged about 66 years, R/at MF 1/11, HAL 3rd Stage, New Thippasandra, Bengaluru-560 075.
2) Mrs. Margaret Pinto, D/o Mr. C.D. Pinto, Aged about 57 years, R/at No. 63, Nandidurga Extension, Bengaluru-560 046.
(By Sri. G. Sukumaran, Advocate) AND:
1) Mrs. Malti Narendrakumar Jain, W/o Late Mr. NarendrakumarJain, Aged about 79 years, R/at No. 81-A, Anita, Mount Pleasant Road, Malabar Hill, Mumbai, Maharashtra-400 006.
(Through Power of Attorney holder Viz., Mr. Rajiv Narendrakumar Jain).
…APPELLANTS 2) Mr. Rajiv Narendrakumar Jain, S/o Late Mr. NarendrakumarJain, Aged about 59 years, R/at No. 81-A, Anita, Mount Pleasant Road, Malabar Hill, Mumbai, Maharashtra-400 006.
3) Mrs. Sabina Anil Sanghvi, D/o Late Mr. Narendrakumar Jain, W/o Mr. Anil Kumar Sanghvi, Aged about 57 years, R/at No. 101, National Housing Society, Baner Road, Sindh Society Aundh, Pune, Maharashtra-411 007.
4) State Bank of Mysore, Bengaluru Branch, No. 644/645, Avenue Road, Bengaluru-560 002, Rep. by the Chief Manager/ Manager.
5) Kotak Mahindra Bank Ltd., (ING Vysya Bank is now Kotak Mahindra Bank) Office at ING Vysya House, No. 22, M.G. Road, Bengaluru-560001. And At No. 23/3, St. Joseph Indian High School Compound, No. 1, Vittal Mallya Road, Bengaluru-560 001.
Rep. by its Chief Manager/ Manager.
6) Mr. Bhavya Prasad Jain, S/o Mr. Rathnavarma Jain, Aged about 33 years, at Padma Nilaya, Parappady, Nallur Post, Karkala Taluk, Udupi District-574 122.
…RESPONDENTS (By Sri. Nikhilesh M. Rao, Advocate for R1 to R3; R4 and R6 are served; Appeal as against R5 is dismissed V/O dated 28.11.2016) ***** THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED: 12.02.2016 PASSED ON IA NO.1 IN O.S.NO.1274/16 ON THE FILE OF THE 15TH ADDITIONAL CITY CIVIL & SESSION JUDGE, BENGALURU, ISSUING NOTICE OF IA NO.1 FILED UNDER ORDER 39 RULE 1 & 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though the matter is listed for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
The defendants Nos.3 and 4 in O.S.No. 1274/2016 on the file of the XXV Addl. City Civil and Sessions Judge, Bengaluru (CCH-23) have filed the present Miscellaneous First Appeal against the impugned order dated 12.02.2016 made on I.A.No.1, granting ex-parte temporary injunction, extended from time to time.
2. The respondent Nos.1 to 3 / plaintiffs filed suit for declaration and permanent injunction against the defendants in respect of the suit schedule properties raising various contentions.
3. The plaintiffs also filed I..A.No.1 for temporary injunction restraining the defendants 1 and 2, their officers, directors, servants, agents and all other persons claiming through or under them from releasing the accumulations in the suit schedule in favour of defendant Nos.3 to 5 or anyone other than the plaintiffs.
4. The Trial Court by the impugned order dated 12.02.2016 granted ex-parte injunction which was subsequently extended from time to time. Therefore, the present appeal is filed.
5. I have heard the Learned Counsel for the parties to the lis.
6. Sri G.Sukumaran, learned counsel for the appellants contended that the impugned order passed by the Trial Court granting ex-parte temporary injunction and extending interim order time to time is in utter violation of the provisions of Order XXXIX Rule 3A of the Code of Civil Procedure. The Trial Court ought to have decided the application within 30 days from the date of injunction. The same has not been done in the present case. Therefore, he sought to set aside the impugned order by allowing the Miscellaneous First Appeal.
7. Per contra, Sri Srinivas Raghavan, learned counsel for Sri Nikhilesh M.Rao, learned counsel for respondent Nos.1 to 3 fairly submits that the Trial Court may be directed to decide the I.A. after hearing both the parties.
8. In view of the aforesaid submissions made by the learned counsel for the parties, the only point that arises for consideration is:
“Whether the Trial Court is justified in granting ex-parte injunction on 12.02.2016 and extending time to time without disposing I.A., as stipulated under Order XXXIX Rule 3A of the Code of Civil Procedure?”
9. Having heard the learned counsel for the parties to the lis, it is not in dispute that the suit filed by the plaintiffs for declaration and permanent injunction against the defendants 1, 2, 3 to 5 in respect of suit schedule property. It is also not in dispute that on the application filed by the plaintiffs, the Trial Court granted ex-parte injunction on 12.02.2016 and extended from time to time. The provisions of Order XXXIX Rule 3A of the Code of Civil Procedure reads as under:
“3A. Court to dispose of application for injunction within thirty days- Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.”
10. A plain reading of the said provision makes it clear that, where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability.
11. In the present case, though the Trial Court granted injunction on 12.02.2016 and extended from time to time, no reasons are assigned to extend the interim order of injunction and the Trial Court has not disposed of the application within the time stipulated under law. In view of the same, the point raised in this appeal has to be answered in the negative holding that the Trial Court is not justified in not disposing of the application within time.
12. For the reasons stated above, the appeal is disposed of. The impugned order passed by the Trial Court not disposing of the application within time is erroneous and contrary to law. The Trial Court is directed to decide the application afresh after hearing both the parties, strictly in terms of Order XXXIX Rule 3A of Code of Civil Procedure.
Sd/- JUDGE kcm