Case Note & Summary
The petitioner, Ahad Euphoria Apartment Owners Welfare Association, was the defendant in a civil suit (O.S.No.1437/2019) filed by the respondent, Mrs. Babitha George, seeking an injunction. The III Additional Civil Judge, Bangalore Rural District, passed an order on 28.11.2019 granting temporary injunction in favor of the plaintiff. Aggrieved by this order, the defendant filed a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka, seeking to quash the injunction order and direct the trial court to dispose of the suit in terms of a memo. During the hearing, the petitioner's counsel argued the matter but then fairly submitted that he may be permitted to avail the remedy of appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, and requested that the appellate court be directed to take up the appeal for consideration at the earliest. The High Court found this submission just and reasonable. Accordingly, the writ petition was disposed of, reserving liberty to the petitioner to file an appeal within two weeks from the date of the order. The court directed that if the appeal is filed within that period, the appellate court shall take it up for consideration immediately on merits, disregarding any issue of limitation, and in accordance with law. All other contentions of the parties were kept open.
Headnote
A) Civil Procedure - Temporary Injunction - Alternative Remedy - Order XLIII Rule 1(r) CPC, 1908 - Writ Petition under Articles 226 and 227 of Constitution - The petitioner, defendant in an injunctive suit, challenged the order granting temporary injunction. The court held that the petitioner may avail the remedy of appeal under Order XLIII Rule 1(r) CPC and disposed the writ petition reserving liberty to file appeal within two weeks, directing the appellate court to consider it on merits disregarding limitation. (Paras 1-2)
Issue of Consideration
Whether the High Court should entertain a writ petition under Articles 226 and 227 of the Constitution challenging an order granting temporary injunction under Order XXXIX CPC, when an alternative remedy of appeal under Order XLIII Rule 1(r) CPC is available.
Final Decision
The writ petition was disposed of, reserving liberty to the petitioner to file an appeal under Order XLIII Rule 1(r) CPC within two weeks from the date of the order. If the appeal is filed within that period, the appellate court shall take it up for consideration immediately on merits, disregarding the issue of limitation, and in accordance with law. All other contentions of the parties are kept open.
Law Points
- Availability of alternative remedy of appeal under Order XLIII Rule 1(r) CPC
- Writ petition under Articles 226 and 227 of Constitution not maintainable when statutory appeal is available
- Court may dispose writ petition reserving liberty to file appeal and request early hearing
Case Details
2020 LawText (KAR) (07) 162
Writ Petition No. 8158 of 2020 (GM-CPC)
Sri. Sharan M, for Sri. H L Pradeen Kumar
Ahad Euphoria Apartment Owners Welfare Association
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order granting temporary injunction in a civil suit.
Remedy Sought
The petitioner sought to quash the order dated 28.11.2019 in O.S.No.1437/2019 passed by the III Additional Civil Judge, Bangalore Rural District, granting temporary injunction, and alternatively to direct the trial court to dispose of the suit in terms of a memo dated 26.11.2019.
Filing Reason
The petitioner, being the defendant in the suit, was aggrieved by the order granting temporary injunction against it.
Previous Decisions
The trial court had passed an order on 28.11.2019 granting temporary injunction in favor of the plaintiff/respondent.
Issues
Whether the writ petition under Articles 226 and 227 of the Constitution is maintainable when an alternative remedy of appeal under Order XLIII Rule 1(r) CPC is available?
Submissions/Arguments
Petitioner's counsel argued the matter and then submitted that he may be permitted to avail the remedy of appeal under Order XLIII Rule 1(r) CPC and requested that the appellate court be directed to take up the appeal for consideration at the earliest.
Ratio Decidendi
When an alternative remedy of appeal under Order XLIII Rule 1(r) CPC is available against an order granting temporary injunction, the High Court may not entertain a writ petition under Articles 226 and 227 of the Constitution and may dispose it off reserving liberty to the petitioner to file an appeal, with a direction to the appellate court to consider it on merits disregarding limitation if filed within a specified period.
Judgment Excerpts
Learned counsel for the petitioner having argued the matter for some time, now fairly submits that he may be permitted to avail the remedy of appeal as provided under Order XLIII Rule 1(r) of CPC, 1908 and that he may be permitted to request the learned Appellate Judge to take up the appeal for consideration at the earliest.
If the appeal is filed within two weeks from this day, the same shall be taken up for consideration immediately on merits disregarding the issue of limitation and in accordance with law.
Procedural History
The respondent/plaintiff filed O.S.No.1437/2019 before the III Additional Civil Judge, Bangalore Rural District, seeking an injunction. The trial court passed an order on 28.11.2019 granting temporary injunction in favor of the plaintiff. Aggrieved, the defendant/petitioner filed the present writ petition under Articles 226 and 227 of the Constitution before the High Court of Karnataka. During the hearing, the petitioner's counsel sought permission to avail the remedy of appeal under Order XLIII Rule 1(r) CPC. The High Court disposed the writ petition on 02.07.2020, granting liberty to file an appeal within two weeks.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XLIII Rule 1(r)
- Constitution of India: Articles 226, 227
