Case Note & Summary
The petitioner filed a writ petition under Article 227 of the Constitution of India challenging an order dated 01.07.2022 by the Trial Court that refused to grant an ex-parte injunction under Order XXXIX Rules 1 and 2 of the CPC. The respondents argued that the petition was not maintainable because the order was appealable under Order XLIII Rule 1(r) of the CPC. The High Court, relying on the Supreme Court's decision in A. Venkatasubbaih Naidu Vs. S. Chellappan and others, held that orders under Order XXXIX Rules 1 and 2 of the CPC are appealable under Order XLIII Rule 1(r) of the CPC, and parties must exhaust this statutory remedy before invoking Article 227 jurisdiction. The Court found no distinction between ex-parte and final orders for appealability purposes. Consequently, the writ petition was dismissed as not maintainable, with liberty to the petitioner to pursue an appeal or other appropriate remedy.
Headnote
The High Court of Karnataka at Bengaluru dismissed a writ petition filed under Article 227 of Constitution of India challenging an order dated 01.07.2022 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.4213/2022 on I.A.No.2/2022 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC) -- The Impugned Order refused to grant an ex-parte injunction to the petitioner/plaintiff -- The respondents contended that the petition was not maintainable as the order was appealable under Order XLIII Rule 1(r) of CPC -- The Court referred to the Supreme Court judgment in A. Venkatasubbaih Naidu Vs. S. Chellappan and others (2000) 7 SCC 695, which held that orders under Order XXXIX Rules 1 and 2 of CPC are appealable under Order XLIII Rule 1(r) of CPC, and parties have the choice to either move the Trial Court under Order XXXIX Rule 4 or file an appeal -- The Court emphasized that the statute does not distinguish between ex-parte and final orders under Order XXXIX of CPC -- Since the petitioner had an alternative statutory remedy of appeal available, the writ petition under Article 227 of Constitution of India was held not maintainable and was dismissed -- The Court directed the petitioner to avail the appropriate remedy before the competent forum
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Issue of Consideration: The Issue of maintainability of a writ petition under Article 227 of Constitution of India challenging an order refusing ex-parte injunction under Order XXXIX Rules 1 and 2 of CPC, when an appeal lies under Order XLIII Rule 1(r) of CPC
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Final Decision
The High Court dismissed the writ petition as not maintainable, holding that the petitioner had an alternative statutory remedy of appeal under Order XLIII Rule 1(r) of CPC, and directed the petitioner to avail the appropriate remedy before the competent forum
