Case Note & Summary
The appellant, Mr. Srinivas Adhikeshavulu Dalvai, was the defendant in a suit filed by M/s Anushka Constructions Pvt Ltd (the respondent/plaintiff) in O.S.No.9272/2024 before the I Additional City Civil and Sessions Judge, Bengaluru. The plaintiff sought a permanent injunction restraining the defendant from interfering with its possession over suit schedule Item Nos.1 to 4 properties. Along with the suit, the plaintiff filed I.A.No.2 under Order XXXIX Rules 1 and 2 CPC seeking a temporary injunction. The trial court, by order dated 01.02.2025, allowed I.A.No.2 and granted an ex parte temporary injunction restraining the defendant from interfering with the plaintiff's possession. The court also made the ex parte order absolute and rejected I.A.No.4 filed by the defendant under Order XXXIX Rule 4 read with Section 151 CPC seeking vacation of the injunction. Aggrieved, the defendant filed this appeal under Order XLIII Rule 1(r) CPC. The High Court examined the trial court's order and found that the trial court had not recorded any reasons or its satisfaction for dispensing with notice to the defendant before granting the ex parte injunction, as mandated by Order XXXIX Rule 3 CPC. The court held that this requirement is mandatory and its non-compliance renders the ex parte order void. Consequently, the High Court allowed the appeal, set aside the impugned order, and remanded the matter back to the trial court for fresh consideration of I.A.No.2 and I.A.No.4 after hearing both parties. The court directed the trial court to dispose of the applications within four weeks from the date of receipt of the order.
Headnote
A) Civil Procedure - Temporary Injunction - Ex Parte Order - Order XXXIX Rule 3 CPC - Mandatory Requirement - The trial court granted an ex parte injunction without recording reasons for dispensing with notice to the defendant. Held, that the requirement under Order XXXIX Rule 3 CPC to record reasons or the court's satisfaction for dispensing with notice is mandatory and not directory. Failure to do so renders the ex parte order void. (Paras 5-10) B) Civil Procedure - Vacation of Injunction - Order XXXIX Rule 4 CPC - Maintainability - The defendant filed an application under Order XXXIX Rule 4 CPC to vacate the ex parte injunction. The trial court rejected it. Held, that when an ex parte injunction is granted without complying with Order XXXIX Rule 3 CPC, the application under Rule 4 is maintainable and the court ought to have considered it on merits. (Paras 11-15) C) Civil Procedure - Temporary Injunction - Prima Facie Case - Balance of Convenience - The dispute involved possession of suit properties. The plaintiff claimed possession based on a sale deed, while the defendant claimed title and possession. Held, that the trial court failed to properly assess the prima facie case and balance of convenience, and the matter requires reconsideration after hearing both sides. (Paras 16-20)
Issue of Consideration
Whether the trial court was justified in granting an ex parte temporary injunction without recording reasons for dispensing with notice as required under Order XXXIX Rule 3 CPC, and whether the rejection of the defendant's application under Order XXXIX Rule 4 CPC was proper.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 01.02.2025 passed by the I Additional City Civil and Sessions Judge, Bengaluru in O.S.No.9272/2024, and remanded the matter back to the trial court for fresh consideration of I.A.No.2 and I.A.No.4 after hearing both parties. The trial court was directed to dispose of the applications within four weeks from the date of receipt of the order.
Law Points
- Order XXXIX Rule 3 CPC mandatory
- ex parte injunction without recording reasons void
- Order XXXIX Rule 4 CPC application for vacation of injunction maintainable
- duty of court to record satisfaction for dispensing notice
