Smt. Vijayalakshmi Vs the Commissioner

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO NOT TO INTERFERING WITH THE PEACEFUL POSSESSION AND ENJOYMENT OF THE SCHEDULE PROPERTY BY THE PETITIONER OR IN ALTERNATE MAINTAIN THE STATUS QUO UNTIL CONSIDERING THE I.A. NO.2 FILED BY THE PETITIONER / PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 IN O.S.NO. 8373/2025 PENDING ON THE FILE OF THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-11) (ANNX-U).

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, 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 senior counsel Sri.Gopalaswamy on behalf of

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learned counsel Sri.Bhargav.G for the petitioner.

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This petition is filed by the petitioner/plaintiff

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seeking the following reliefs.

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i) Issue writ of prohibitory directing the respondents to not to interfering with the peaceful possession and enjoyment of the schedule property by the petitioner or in alternate maintain the status-quo until considering the IA No.2 filed by the petitioner/plaintiff under Order 39 Rule 1 and 2

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in OS.No.8373/2025 pending on the file of the VI Additional City Civil and Sessions Judge at Bengaluru (CCH-11).

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ii) Pass such other writ/s or order/s which are deemed to be fit in the nature and circumstance of the above case, in the interest of justice and equity.

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Petitioner/plaintiff filed the suit against the defendants for grant of permanent injunction restraining the defendants, their men, henchmen, servants, agents, persons claiming through or under them from interfering or dispossessing the plaintiffs from peaceful possession and enjoyment of the suit schedule property.

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Along with the plaint filed an application IA.No.1 under Section 80(2) of CPC and IA.No.2 filed under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC.

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After filing the suit, IA.No.1 filed by the plaintiff under Section 80(2) of CPC came to be allowed. The statutory notice under Section 80 of CPC came to be dispensed and thereafter the arguments of the plaintiff were heard on IA.No. 2 under Order XXXIX Rule 1 and 2

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read with Section 151 of CPC. The learned trial judge has

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passed the following order.

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"Heard the arguments of Learned Counsel for plaintiff on I.A.No.2 and perused the materials on record.

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Plaintiff has filed this application seeking the relief of exparte temporary injunction order against the defendants, their agents, servants, henchmen, legal heirs or any other persons from interfering with the possession and enjoyment of the suit schedule property. But, plaintiff has not issued statutory notice under Sec.80 of CPC which is mandatory and he has sought dispensation of statutory notice which has been allowed. But, he is also seeking relief of exparte temporary injunction order which cannot be granted against public servants without issuing statutory notice. In the decision reported in; Sampakand Mandal Panchayath Vs. Kusumakara decision Vishnu Kodiya in which it is held as under;

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In case an urgent or immediate relief being required to be obtained against Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, suit can be instituted with leave of court and Court can grant interim order after giving Government or public officer, as the case may be, a reasonable opportunity to show cause as to relief prayed for in suit. Inherent power cannot be invoked for granting urgent or immediate relief against Government. Proper course is to follow the procedure laid down u/S.80(2)

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In another decision reported in; State of A.P. Vs. M/s.Pioneer Builders 2006 AIR SCW 5439 in which it is held as under;

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From a conjoint reading of sub-sections (1) and (2) of S.80, the Legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though S.80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground/s pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable. opportunity of showing cause in respect of relief prayed for in the suit.

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Hence, before passing any order on I.A.No.2, it is just and proper to hear both parties and then pass appropriate order on merits. So, I proceed to pass the following;

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ORDER

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Issue emergent notice of I.A.No.2 and suit summons to the defendants by registered post and Court process if PF paid and RPAD Cover furnished.

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Call on 19/1/26"

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

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Rule 1 and 2 is also 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

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required to see that if the suit schedule property is in

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danger of being wasted, damaged, alienated or wrongfully

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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 defendants and, upon appearance of the defendants, 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 may grant an ad-interim order of temporary injunction

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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 has not adverted to any of these required ingredients in its impugned order. It is relevant to mention that this Court has been seeing time and again several orders passed by the 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 issues emergent notice to the defendants

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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

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by the plaintiff. The trial Court is obligated and is duty bound to consider the application and the materials placed

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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

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Time City Infrastructure and Housing Limited

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Lucknow V/s State of U.P. and others reported in

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2025 SCC Online SC 1674 as to how the trial Court has

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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 -

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vs- Municipal Corporation of Delhi and others

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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 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

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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 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

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exceptional circumstances. Such ex parte orders have farreaching 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 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

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Housing Limited Lucknow V/s State of U.P. and

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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 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

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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 ex-

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parte injunction. Nevertheless, the trial Court would have

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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 while passing the impugned order, except for merely issuing notice to the defendants. Under the circumstances, the impugned order is not sustainable and is neither in accordance with law.

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In the present case on hand, the trial judge has allowed the application filed under Section 80 of CPC by dispensing notice to the respondents/defendants. But however, while considering the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, it goes on to hold with regard to non compliance of Section 80 (1) and (2), which may not be the correct procedure to be followed and position of law.

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The very purpose of seeking a relief under

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Order XXXIX Rule 1 and 2 and invoking the proviso to Order XXXIX Rule 3 seeking an ad interim ex-parte temporary injunction prior to issuance of notice to the respondents/defendants would be to consider any extraordinary exceptional circumstances for grant of the relief under the said provision. Hence, while doing so, it is relevant for the Court to look into the materials placed, the urgency pleaded, and the damage or threat of interference to the plaintiff's peaceful possession and enjoyment of the suit schedule property, which would be frustrated by issuance of notice and the delay in issuance of notice would cause irreparable injury and damage, hardship, threat and inconvenience. Under such circumstances, the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, invoking the proviso to Rule 3 of Order XXXIX, could be invoked by the Court, despite the respondents/defendants being the State or an agency of the State.

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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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2. Matter is remitted to the trial Court to consider

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the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC by way of a reasoned order and by following the judgments of the Hon'ble Apex Court Court in the case of Shiv Kumar Chadha -vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161, Morgan Stanley Mutual Fund v/s Kartick Das reported in (1994) 4 SCC 225, Time City

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infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online

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SC 1674, Ramakant Ambalal Choksi V/s Harish Ambalal Choksi and others reported in (2024) 11 SCC 351 and Vedant Fashions Pvt. Ltd., V/s Smt. Rajul Devi reported in 2014 SCC OnLine Kar 7191 while

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passing the orders ad-interim ex-parte and even otherwise

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in any further orders.

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The trial Court shall also follow the judgment of this Court reported in WP.No.33725/2025 in the case

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Karnataka State Cricket Association registered

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under the Karnataka Societies Registration Act, 1960 V/s Shashidhara A.V .

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The petitioner/plaintiff is at liberty to advance

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the matter before the trial Court for any urgent interim relief.

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It is seen from the averments made in the

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plaint and the petition herein that the suit is filed for permanent injunction. Petitioner has filed an application seeking an ad- interim order of temporary injunction. Petitioner is residing in the suit schedule property. The relevant photographs are produced.

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The status quo shall be maintained till the

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application is disposed of by the trial Court on the petitioner moving the Court by advancing the matter. Petitioner is at liberty to move the trial court within a week's time from the date of receipt of copy of this order.

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The trial court is at liberty to decide the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in accordance with law.

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Nevertheless, the trial Court may either grant or reject the application but provide proper reasons while doing so. The status quo shall be maintained till the disposal of such application.

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In the meanwhile, learned counsel for the petitioner to comply with Order XXXIX Rule 3 read with Section 151 of CPC.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK, List No.: 3 Sl No.: 1

Smt. Vijayalakshmi v. the Commissioner

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Smt. Vijayalakshmi v. the Commissioner

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