Umakka Vs Thippamma

QUASH AND SET ASIDE THE NON-SPEAKING AD INTERIM EX PARTE ORDER OF TEMPORARY INJUNCTION DATED 03.05.2025 PASSED ON IA.NO.1 IN O.S.NO.152/2025 BY THE PRINCIPAL CIVIL JUDGE AND JMFC, CHALLAKERE VIDE ANNEXURE-D AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard Smt.H.S.Poornima, learned counsel for petitioners, Sri B.M.Siddappa, learned counsel for

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respondent Nos.1 and 2 and Sri Raghav Parthasarathy along with Sri Chidanand G.Y., learned counsels appearing for respondent No.3.

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This petition is filed by the defendants in O.S.No.152/2025. The petitioners are the defendants and respondent Nos.1 and 2 are the plaintiffs and respondent No.3 is defendant No.4.

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Parties shall be referred to as per their status before the trial Court.

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A suit came to be filed by the plaintiffs against the defendants seeking relief of partition and separate

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HC-KAR

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possession and other consequential reliefs. Along with the plaint, an application in IA.No.1 came to be filed under Order XXXIX Rules 1 and 2 of CPC seeking an ad interim ex parte order of temporary injunction to restrain defendant Nos.1 to 3 or their GPA holders from alienating the suit schedule property by way of sale, agreement of sale, Will, mortgage, lease, gift in any other way till disposal of the suit.

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The trial Court, upon hearing the application, prior to issuance of notice, granted an ad interim ex parte order of temporary injunction restraining defendant Nos.1 to 3 or anybody acting on their behalf from alienating or creating charge over the suit schedule property in any manner till the next date of hearing. It is this order which is questioned by defendants in this petition.

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Learned counsel for petitioners-defendants vehemently contends that the trial Court has committed an error in granting an ad interim ex parte order of temporary injunction without issuance of notice to the

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HC-KAR

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petitioners/defendants. She has urged several grounds to

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set-aside the order of grant of an ad interim ex parte order of temporary injunction and contends that there is no prima facie case, balance of convenience made out by

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the plaintiffs and also the fact that not much hardship and financial loss would be caused to the defendants by grant of ad interim ex parte order of temporary injunction in favour of the plaintiffs. Hence, she seeks to allow her petition.

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Learned counsels for respondents-plaintiffs

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contends that the petition itself is not maintainable. He further contends that the Registry of this Court has also raised objections with regard to maintainability of the petition, in view of the provisions under Order XLIII Rule 1(r) of CPC. Hence, they seek to dismiss this petition.

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Having heard learned counsels for parties, this

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Court does not intend to delve into the merits of the matter for the reason that the primary objection raised by

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HC-KAR

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the Registry as well as learned counsel for respondentsplaintiffs is with regard to maintainability of the petition. It is a fundamental rule of law that if an application under Order XXXIX Rules 1 and 2 of CPC is filed and the same

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allowed by grant of ad interim ex parte order of temporary injunction prior to issuance of notice to defendants by way of a reasoned order, then it would be prerogative of the defendants, on appearance, either to seek for vacation of the interim order or challenge the same in the manner known to law.

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In the present case on hand, since ad interim ex

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parte order of temporary injunction is granted in favour of the plaintiffs, it squarely comes within the purview of Order XLIII Rule 1(r) of CPC, which calls for filing of an appeal i.e. the order passed on the application filed under Order XXXIX Rules 1 and 2 of CPC. However, the petitioner has filed present petition invoking the extraordinary jurisdiction of this Court under Article 227 of

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the Constitution of India.

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HC-KAR

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No doubt, it is the prerogative of this Court to

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entertain a petition filed under Article 227 of the Constitution of India, where there is an illegality, perversity or lack of jurisdiction and the same cannot be disallowed. However, under the fact and circumstances of

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the present case, the petitioners have not made out any extraordinary circumstances or exceptional circumstances warranting interference of this Court under Article 227 of the Constitution of India. It is a fundamental rule of law that when there is an alternative efficacious remedy available to the petitioners, they shall exhaust such remedy before invoking the jurisdiction of this Court under

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Article 227 of the Constitution of India.

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Under the circumstances, I am not inclined to accept the submission of learned counsel for respondentsdefendants to entertain this petition, as this petition is not maintainable in view of the bar contained under Order XLIII Rule 1(r) of CPC.

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HC-KAR

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Accordingly, I pass the following:

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ORDER

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i) This writ petition is dismissed ;

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ii) However, liberty is reserved to the petitionersdefendants to approach the trial Court to file an application seeking vacation of ad interim ex parte order of temporary injunction or in the alternative, challenge the said order in the manner known to law;

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iii) It is made clear that this Court has not expressed any opinion on the merits of the matter.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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LB

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List No.: 1 Sl No.: 38

Umakka v. Thippamma

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Umakka v. Thippamma

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