Sri. L Eshwaraiah Vs Sri B J Anjanamurthy — Karnataka HC (2026) — LawSathi Research

Sri. L Eshwaraiah Vs Sri B J Anjanamurthy — Karnataka HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed; impugned order on I.A. No.2 (Order 39 Rule 1 and 2 of CPC) set aside; trial judge directed to reconsider I.A. No.2 afresh and pass fresh orders within 15 days of receipt of copy of the order — either an ad-interim ex parte order prior to issuance/service of notice, or orders on merits if notice is served and appearance is made; Court expressly expressed no opinion on the merits of the application.

Issue for consideration

Whether the trial Court erred in dismissing I.A. No.2 — the application under Order XXXIX Rules 1 and 2 r/w Section 151 CPC restraining the defendants from alienating or creating any charge over the suit schedule property — on the findings that recent RTC was not filed, that hearing the other side was necessary and that no prima facie case existed, instead of issuing notice or dispensing with notice under the Order 39 Rule 3 proviso and passing an ad-interim ex parte order. +1 more

Court's answer

The trial Court misdirected itself: I.A. No.2 was for restraining the defendants from alienating or creating any charge over the suit schedule property, yet the Court faulted the plaintiffs for not producing any document to show alleged possession and interference (recent RTC).

Ratio / Principle

Instead of issuing notice and hearing the defendant before passing any order, the trial Court dismissed the application without applying its mind.

Key takeaways

Where issuance of notice and the resulting delay may cause hardship and inconvenience, damage to the property or threat to the plaintiff, the trial Court may exercise its discretion to dispense with notice and pass an ad-interim ex parte order, which is permissible under Order 39 Rule 3 proviso.ratio¶59
The impugned order is devoid of merits and requires to be set aside.ratio¶61
Since the impugned order was passed ad-interim ex parte and notice had not been served, the trial judge is directed to reconsider I.A. No.2 afresh — either granting an ad-interim ex parte order prior to issuance of notice, or, if notice is served and appearance made, considering the application on merits — within 15 days from receipt of copy of the order.

Detailed headnote1 paragraphs

Miscellaneous First Appeal (under Order XLIII Rule 1(r) CPC) by the six plaintiffs of O.S. No. 315/2026 (old O.S. No. 179/2026), Tumakuru, against the order dated 30.05.2026 of the Vacation Judge/VI Additional District and Sessions Judge dismissing their I.A. No.2 (Order XXXIX Rules 1 & 2 r/w Section 151 CPC) seeking temporary injunction restraining the defendants from alienating or creating any charge over the suit schedule property pending disposal of the suit. The trial Court had declined the ad-interim ex parte prayer, observing that the plaintiffs relied only on old RTC without recent RTC to show possession/interference, that hearing the other side was necessary, and that no prima facie case was made out. Allowing the appeal without issuing notice to the respondents (who had not appeared below), the High Court held that the trial Court had misdirected itself — the application concerned restraint on alienation, not proof of possession — and that, where issuance of notice and the resultant delay may cause hardship, inconvenience, damage or threat, it was open to the Court under Order XXXIX Rule 3 proviso to dispense with notice and pass an ad-interim ex parte order; dismissing the application instead amounted to deciding without applying its mind. Impugned order set aside; trial judge directed to reconsider I.A. No.2 afresh within 15 days of receipt of copy, either by passing an ad-interim ex parte order before notice or by deciding on merits after notice/appearance; the High Court expressly expressed no opinion on the merits. — Pradeep Singh Yerur, J. (oral judgment).