Sri B R Keshavappa Vs Sri Narayanaswamy

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE ORDER DATED 12.11.2025 PASSED BY THE PRL. CIVIL JUDGE AND JMFC CHIKKABALLAPURA ON IA NO. 1 IN OS NO.

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340/2025 VIDE ANNX-H.ALLOW ON IA NO. 1/2025 FILED UNDER ORDER 39 RULE 1 ANDN2 R/W SECTION 151 OF CPC IN OS NO. 340/2025 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC CHIKKABALLAPURA, VIDE (ANNX-G).

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This petition is filed by the plaintiff being aggrieved by the impugned order dated 12.11.2025 passed by the Principal Civil Judge, JMFC, Chikkaballapura on IA No.1 in O.S.No.340/2025, and consequently to allow IA No.1, filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC.

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This Court does not find a need or necessity to issue notice to the respondent/defendant for the reason that this Court is not inclined to pass any favourable order to the petitioner/plaintiff, whereas this Court is inclined to remit the matter back to the trial Court for reconsideration of the application IA.No.1 filed under Order 39 Rule 1 and 2 read with Section 151 of CPC.

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Parties to proceedings shall be referred to as plaintiff and defendant for the sake of brevity.

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Plaintiff filed suit against the defendant for relief of permanent injunction. Along with the plaint, an application came to be filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC for the grant of an exparte ad-interim order of temporary injunction restraining the defendants, agents, servants and supporters from putting up construction or building and not to alter the nature of the suit schedule property with due process of law by dispensing notice to the defendant.

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The application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC came to be heard by the trial judge and passed the following order.

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"Heard. Perused the record. This suit is filed by the plaintiff against the defendant for the relief of permanent injunction with respect to suit schedule property. I have not found any urgency to consider I.A.No.1.

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In view of the amendment to the Code of Civil Procedure(Karnataka Amendment Bill

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2024) which came into force on 05.06.2025 and as per Sec.89A of the Act, it is mandatory on the part of this court to refer the suit to mediation. Accordingly, I proceed to pass the following;

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ORDER

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Office to issue notice/summons to the parties to the suit with a direction for them to appear before the mediation center on 12.12.2025 without fail.

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Office is directed to send necessary papers to the mediation forthwith and call the case before the court on 12.01.2026. Call on 12.01.2026."

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Learned counsel for the plaintiff contends that

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the impugned order passed by the trial Court is illegal, arbitrary and perverse. The trial Court has failed to exercise its jurisdiction as contemplated under the provisions of XXXIX Rule 1 and 2 and the proviso to Rule 3.

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In view of the impugned order, the

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consequences would be that the plaintiff would suffer grave and irreparable injury and hardship. It is also contended that the plaintiff has approached the concerned

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jurisdictional police and has filed a complaint, but the police have turned hostile, stating that the matter is of a civil nature. It is further contended that the defendant is making all attempts to grab the land illegally from the plaintiff and making attempts to put up construction and buildings to make wrongful profit which would lead to further hardship and inconvenience and financial loss to the plaintiff. Therefore, he contends that the impugned order, without passing the ad - interim order of injunction, is illegal, arbitrary, and perverse and the same requires to be set aside, and consequently he seeks this Court to grant him an ad-interim order of temporary injunction.

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While considering the application filed under

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Order 39 Rule 1 and 2 read with Section 151 of CPC, the trial Court is obligated to follow the following procedure.

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When an application is filed under Order XXXIX

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Rule 1 and 2 read with Section 151 of CPC, it is the duty and obligation of the trial Court to consider the documents

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placed by the plaintiff before it, either along with the plaint, or otherwise including the averments made in the affidavit annexed to the application or any material that is produced along with the plaint to prima facie satisfy itself for grant or non-grant of an ad- interim order of temporary injunction. The provisions under Order XXXIX Rule 1 and 2 is for grant of an ad-interim temporary injunction, by dispensing notice to the defendants in view of the urgency so stated if any and to the satisfaction of the trial Court.

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It is needless to mention that the trial Court is required to see that if the suit schedule property is in danger of being wasted, damaged, alienated or wrongfully sold in execution or defendants threatens or intends to remove or dispose of the property, or there is any threat to dispose the property or dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the suit schedule property, then the court may issue notice to the

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defendants and, upon appearance of the defendants,

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consider and pass suitable orders.

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The proviso to Order XXXIX Rule 3 provides that the Court has the option of either issuing notice or, in exceptional and extraordinary circumstances where the Court finds that an ad -interim order of temporary injunction is required to be granted prior to issuance of notice on the ground of urgency made out and that the delay in issuance of notice would cause hardship and inconvenience and threat of dispossession to the plaintiff with regard to the suit schedule property or any damage to the suit schedule property or to the plaintiff, the Court

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may grant an ad-interim order of temporary injunction prior to issuance of notice. Therefore, the proviso to Order XXXIX Rule 3 provides this extraordinary relief that could be granted prior to issuance of notice in exceptional circumstances if made out by the plaintiff.

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In the present case on hand, the trial Court

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has not adverted to any of these required ingredients in its impugned order. It has merely said:

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"Heard. Perused the record. This suit is filed by the plaintiff against the defendant for the relief of permanent injunction with respect to suit schedule property. I have not found any urgency to consider I.A.No.1.

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In view of the amendment to the Code of Civil Procedure(Karnataka Amendment Bill 2024) which came into force on 05.06.2025 and as per Sec.89A of the Act, it is mandatory on the part of this court to refer the suit to mediation. Accordingly, I proceed to pass the following;

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ORDER

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Office to issue notice/summons to the parties to the suit with a direction for them to appear before the mediation center on 12.12.2025 without fail.

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Office is directed to send necessary papers to the mediation forthwith and call the case before the court on 12.01.2026. Call on 12.01.2026."

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It is relevant to mention that this Court has

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been seeing time and again several orders passed by the

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trial Court in this manner where it simply says that the materials are perused, and without hearing the other side, it may not be proper to pass ex-parte order on the application and issue emergent notice to the defendants along with suit summons. This may not be the proper procedure to be followed by the trial Court when an application is filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC where ad-interim order is pressed by the plaintiff. The trial Court is obligated and is duty bound to consider the application and the materials placed before it for either grant or refusal of the ad-interim exparte order.

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If the trial Court is not inclined to grant an adinterim ex-parte temporary injunction prior to issuance of notice to the defendants, the trial Court is duty bound to provide necessary reasoning to that effect and say so in its order rather than merely saying issue notice and that it cannot be decided prior to hearing the other side. This option is not available to the trial Court.

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The trial Court would have to invariably advert to the contentions of the plaintiff, it may either allow it or reject it, but reasoning would have to be provided by the trial Court. It would be relevant to look to the judgments of the Hon'ble Apex Court in the case of Shiv Kumar Chadha -vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161 and in the case of Time City Infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online SC 1674 as to how the trial Court has to deal with such applications.

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It is relevant to extract the observation at paragraph Nos.32, 33, 34 and 35 of the judgment of the Hon'ble Apex Court in the case of Shiv Kumar Chadha - vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161:

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"32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious

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when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite-party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that “where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay…”.

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33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.

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34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party”. The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance

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therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJ Ch 373] and Nazir Ahmed v. Emperor [AIR 1936 PC 253 (2) : 63 IA 372 : 37 Cri LJ 897] . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare [(1975) 1 SCC 559 : AIR 1975 SC 915] .

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35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant

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concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:

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“Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion….

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An ex parte injunction should generally be until a certain day, usually the next motion day….”

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In the case of Time City infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online SC 1674, the

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Hon'ble Supreme Court held at paragraph 5 as under:

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5. Looking to the scheme of Order 39, CPC it is clear that ordinarily an order of injunction may not be granted ex parte. The opposite party must be issued a notice and heard before an injunction may be granted. Rule 3 carves out an exception in favour of granting an injunction without notice to the opposite party where it appears that the object of granting injunction would be defeated by the delay. Conferment of this privilege on the party seeking an injunction is accompanied by an obligation cast on the court to record reasons for its opinion and an obligation cast on the applicant to

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comply with the requirements of Clauses (a) and (b) of the proviso. Both the provisions are mandatory. The applicant gets an injunction without notice but subject to the condition of complying with Clauses (a) and (b) above said.

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Therefore, it is a duty cast upon the trial Court while dealing with the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to dispose of the application on the merits of it. But nevertheless, it would have to opine and provide proper reasoning. Of course, it is not required for the trial Court to conduct a mini trial while granting or rejecting the application for the grant or rejection of an ad-interim exparte injunction. Nevertheless, the trial Court would have to provide reasoning either way, whether it allows or rejects the application for grant of an ad-interim temporary injunction or non grant of an ad-interim temporary injunction. Under the circumstances in the present case, it is seen that the trial Court has not discussed any averments or the contentions of the plaintiff

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while passing the impugned order, except for merely issuing notice to the defendants by holding that "I have not found any urgency to consider IA.No.1". Under the circumstances, the impugned order is not sustainable and is neither in accordance with law.

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Accordingly I pass the following order:

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ORDER

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The petition is disposed of.

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The Principal Civil Judge and JMFC,

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Chikkaballapura is directed to consider the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.340/2025 for either the grant of an adinterim order of temporary injunction or the rejection of the ad-interim order of temporary injunction by a reasoned order.

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The trial Court shall abide by the observations made by the Hon'ble Apex Court in the case of Shiv

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Kumar Chadha -vs- Municipal Corporation of Delhi

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and others reported in (1993) 3 SCC 161 and in the case of Time City Infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in

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2025 SCC Online SC 1674 and pass suitable orders.

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The application shall be decided within 15 days

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from the date of receipt of copy of the order

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Petitioner is also permitted to advance the matter and seek indulgence of the Court to pass necessary orders, and same shall be in accordance with law.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK List No.: 1 Sl No.: 14

Sri B R Keshavappa v. Sri Narayanaswamy

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Sri B R Keshavappa v. Sri Narayanaswamy

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