Case Note & Summary
The appellant, M/s. Legacy Global Project Private Limited, was the defendant in a suit for declaration and possession filed by the respondent, Sri. Shivakumar, in respect of property measuring 1 Acre 26 guntas in Sy.No.265 of Doddajala village. The plaintiff filed two applications under Order 39 Rules 1 and 2 CPC seeking a temporary injunction restraining the defendant from alienating the suit property and directing status quo. The trial court, on 19.09.2016, passed an ex parte ad interim order restraining the defendant from alienating the suit property till the next date of hearing, without issuing notice to the defendant and without recording reasons for dispensing with notice. The defendant appealed against this order. The High Court found that the trial court had violated the mandatory requirement of Order 39 Rule 3 CPC, which requires that before granting an injunction, the court shall issue notice to the opposite party, and if it decides to grant an ex parte order, it must record reasons for doing so. The High Court set aside the impugned order and directed the trial court to hear both sides and pass a fresh order on the injunction application in accordance with law.
Headnote
A) Civil Procedure - Ex Parte Injunction - Order 39 Rule 3 CPC - Notice Before Injunction - The trial court granted an ex parte ad interim injunction restraining the defendant from alienating the suit property without issuing notice to the defendant and without recording reasons for dispensing with notice as required under Order 39 Rule 3 CPC. The High Court held that the order was passed in violation of the mandatory requirement of Order 39 Rule 3 CPC and set aside the same, directing the trial court to hear both sides before passing any order on the injunction application. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in granting an ex parte ad interim injunction without issuing notice to the defendant and without recording reasons for dispensing with notice under Order 39 Rule 3 CPC.
Final Decision
The High Court allowed the appeal, set aside the order dated 19.09.2016 passed by the Senior Civil Judge, Devanahalli, in O.S.No.652/2016, and directed the trial court to hear both sides and pass a fresh order on the injunction application in accordance with law.
Law Points
- Ex parte injunction
- Order 39 Rule 3 CPC
- notice before injunction
- temporary injunction
- civil procedure
Case Details
2017 LawText (KAR) (11) 12
Miscellaneous First Appeal No. 39/2017 (CPC)
Sri. M.G. Kumar for appellant, Sri. K. Srihari for respondent
M/s. Legacy Global Project Private Limited
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Appeal against an ex parte ad interim order of temporary injunction passed by the trial court in a suit for declaration and possession of immovable property.
Remedy Sought
The appellant/defendant sought setting aside of the ex parte injunction order dated 19.09.2016 passed by the Senior Civil Judge, Devanahalli, in O.S.No.652/2016.
Filing Reason
The trial court granted an ex parte ad interim injunction restraining the defendant from alienating the suit property without issuing notice to the defendant and without recording reasons for dispensing with notice, in violation of Order 39 Rule 3 CPC.
Previous Decisions
The trial court passed an ex parte ad interim order on 19.09.2016 restraining the defendant from alienating the suit property till the next date of hearing.
Issues
Whether the trial court was justified in granting an ex parte ad interim injunction without issuing notice to the defendant and without recording reasons for dispensing with notice under Order 39 Rule 3 CPC.
Submissions/Arguments
The appellant/defendant argued that the trial court passed the ex parte injunction order in violation of Order 39 Rule 3 CPC, as no notice was issued to the defendant and no reasons were recorded for dispensing with notice.
Ratio Decidendi
Order 39 Rule 3 CPC mandates that before granting an injunction, the court shall issue notice to the opposite party, and if it decides to grant an ex parte order, it must record reasons for doing so. The trial court's failure to comply with this mandatory requirement renders the ex parte order unsustainable.
Judgment Excerpts
The trial court on being convinced that the plaintiff had made out a case for passing an ad interim order of temporary injunction as per I.A.No.1, passed an order on 19.09.2016 restraining the defendant from alienating the suit property in any manner till the next date of hearing.
The trial court having passed the order without issuing notice to the defendant and without recording reasons for dispensing with notice, the order is in violation of Order 39 Rule 3 CPC.
Procedural History
The respondent/plaintiff filed O.S.No.652/2016 before the Senior Civil Judge, Devanahalli, seeking declaration and possession of suit property. Along with the suit, the plaintiff filed I.A.No.1 under Order 39 Rules 1 and 2 CPC for temporary injunction. On 19.09.2016, the trial court passed an ex parte ad interim order restraining the defendant from alienating the suit property. The defendant filed this appeal under Order 43 Rule 1(r) CPC challenging the said order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 39 Rule 1, Order 39 Rule 2, Order 39 Rule 3, Order 43 Rule 1(r)
