Remanded

Kusuma Nagesh v. Kusuma Ramesh

Telangana HC18 Nov 2022CRP/2118/2022

Case brief

AI extract

What is this about?

The High Court held that ex parte interim injunctions must be supported by recorded reasons specifying the duration of validity and notice requirements. The court remanded the matter to the trial court to reconsider the injunction application following the guidelines laid down in Shiv Kumar Chadha and Parsika Chinna Satyam.

What did the court decide?

The Civil Revision Petition was remanded to the trial court with directions to consider the interim injunction application, record reasons, specify notice timelines, hear both parties, and decide on m

Kusuma Nagesh Vs Kusuma Ramesh — Property and Title | Telangana HC (2022)

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I I I I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENW TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CIVIL REVISI ON PETITI ON O: 21 18 r)F 2 o22

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Petition under Article 227 of the constitution of India, aggrieved by the Order dated L2.02.202L passed in I.A. No. 186/2021 in O.S. No. 174/202L on the file of court of the Sub Divisional Magistrate and Special Assistant Agent, Mobile Court, Bhadrachalam.

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Between:

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Kusuma Nagesh, S/o Late^papaiah, aged 38 years, Occ. Business R/o. 191-112,Medical Colony, Bhadrachalam Town , Bhadradri Kothagudem District.

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...PETITIONER/RESPONDENT/DEFENDANT

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AND

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Kusuma Ramesh, S/o Late^papaiah, aged 47 years, Om Business Vo. 1g1-B and (LB-t-7/7, S R N Colony, Bhadrachalam Town , Bhadradri Kothagudem District.

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...RESPONDENT/ PETITIONER/PLAINTIFF

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IANO: 1OF o22

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Petition under Section 151 CpC praying that in the circumstances stated in the afridavit filed in support of the petition, the High court may be pleased to SUSPEND THE operation of the Order dated LZ.O2.2O2| passed in I.A. No. tB6/2L in O.S. no. L74/202L on the file of the Sub

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Divisional Magistrate and Special Assistant Agent, Mobile Court, Bhadrachalam, Bhadradri Kothagudem District,^pending disposal of main CRP.

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:SRI. KONDAPARTHI KONDAPARTHI SRINMSA

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Counsel for the Petitioner :SRI. KONDAPARTHI KONDAPARTHI Counsel for the Respondent : SRILATHA PALAKURTHI

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The Court made the following: ORDER

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THB HON,BLE DT. JUSTICE G. ITADIIA RANI

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CIVIL REVISION PETITION No.2118 OF 2022

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ORDER:

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This Civil Revision Petition is hled by the petitioner-respondentdefendant aggrieved by the order dated 12.02.2021 in O.S. No.174 of 2021 on the file of the Court of the Special Assistant Agent and Sub Divisional Magistrate, Mobile Court, Bhadrachalam in granting ex parte interim injunction until further orders.

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Heard leamed counsel for the petitioner and the leamed counsel for the respondent.

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Learned counsel for the petitioner submitted that the order under revision was a non-speaking order. As per Order XXXIX Rule 3 CPC, the court below was bound to give reasons while granting ex parte injunction orders. The Hon'ble Apex Court in Shiv Kumar Chadha v.

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Municipal Corporation of Delhi and othersr held that:

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"Whenever a Courl 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 t:ke into consideration, while passing an order ol injunction, all relevant factors, including as to how the object of

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' lreeiy^{: scc ror}

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2 DTORRJ ( W No 2l 18 OF 2o2)

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granting injunction itselfshall be defeated if an exparty order is not passcd. But ary such exnarry orcter.sh";[il;i;;.";p," " particular date before which the plaintiff should be .equired to serve the notice on the defendant concerned...

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He further contended that the court below without there being any applicarion for granting police prorecrion, while granting temporary injunction, marked a copy of the order to the Station House officeq Bhadrachalam porice Station. The court berow without looking into the facts of the case and without giving any opportunity to the petitioneq passed the interim injunction order i, a routine manner and the same was bad in law and prayed to set aside the order dated l:1.02.2021 passed in I.A .No. I 86 of 202l in O.S. No. I 74 of 2021 on the fi}e of the Special Assisrant Agent and Sub Divisional Magistrate, Mobile Court, Bhadrachalam.

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The leamed counsel for the respondent, on the other hand, relied upon the order of this Court in parsika China Satyam @ Satyam and others v, Mukthi Gopala Krishna Murthy2 wherein on sinrilar facts and circumstances, this court dismissed the cRp leaving it opon to the petitioners therein to move an appropriate application before

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'^{cRP No.I36} of 201:1, dated 01.03.2013

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Dt.GRRJ CRP No.2lt8 OF 2022

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the Special Assistant Agent & Sub-Divisional Magistrate (Mobile

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Court), Bhadrachalam for discharge of the ex parte injunction granted"

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Perused the record. The impugned order was an ex parte injunction order granted by the trial court on 12.02.2021. No reasons were given by the trial court while grantin g the ex parte interim injunction. There is no direction given to the respondent-plaintiff to comply with Order-XXXIX Rule 3 CpC. A copy of the same was also marked directly to the Station House Officer of Bhadrachalam p.S. The Hon'ble Apex Court in Shiv Kumar Chadha's case (l supra) held that:

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"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 itsell shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date belore which the plaintiff should be required to serve the notice on the delendant concemed. A reference has been made to the views of the English Courts saying:-

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"Exparte injunctions are lor 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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Accordingly we direct that the application for interim injunction should be considered and disposed of in the following manner:-

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(i) l'he Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the

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D.GRRJ CRP No 2tt8O1 2022

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Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.

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(ii) If the circumstances ol a case so warrant and where the Court is ofthe opinion, that the object ofgranting the injunction would be defeated by delay, the Court should record reasons lor its opinion as required by proviso to Rule 3 of order 39 of the Code, beforl passing an order for injunction. The Court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documen6 should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 oforder 39 aforesaid If the Corporation has entered appearance, any such exparte order of injunction should be extended only after hearing the counsel for the Corporation.

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(iir) While passing an ex parte order of injunction the Cou( shall direct the plaintiff to give an undertaking that he will not make any further construction upo; the premises till the apptication for injunction is finally heard and disposed of."

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7 This Court also in Parsika Chinna Satyam's case (2 supra),

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he d that:

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"2. Penrsal of the order under revision reflects that it wa-s an ex parte- order passed by the Court below upon hearing the counsel for the petitioner/ptaintiff alone. The power of the Court below to pass interlocutory orders is traceable to Rule 42 of the A.P. Agcncy Rules, I924, and the said power extends to not only making an interlocutory order, but also discharging the same at any time. It would therefore be appropriate that ihelelendalts in the suit first move the Court below lor discharge of the ex parte order instead of approaching this Court by way ola Civil Revision Petition under Article 227 of the Constitution.

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Before parting with the matter, this Court is constrained to observe that it would not be appropriate for the Court below to provide police protection for implementation ofan injunction order

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D.cRRJ CRP No 2t IEOF 2022

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without an application being filed for such relief. Further, necessary grounds have to be made out for directing police aid to ensure compliance with an injunction order. Without such grounds being pleaded and proved, thc Court below should normilly not order police aid for implementing an injunction order. The Court below would therefore be well advised to keep these aspects in mind."

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As the order in CRp No.l36 of 2013 dated 01.03.2013 is not

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inconsistent with the judgment passed by the Hon'ble Apex court and a direction was given to the petitioners-defendants to move an appropriate application before the Special Assistant Agent and Sub Divisional Magistrate (Mobile court) Bhadrachalam, it is considered fit to remand the matter to the trial court to dispose of the matter in accordance with law. The petitioner-defendant is also directed to file an appropriate petition before the trial court for discharge of the ex parte injunction grantedinlANo. 186 of 2021 ino.S.No. 174 of 2021 andthetrialcourt shall pass orders on merits on hearing both the counsel on record.

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