Allowed

Venumula Krishna Reddy v. Kallem Vinay Chandh Reddy

Telangana HC3 Apr 2023CRP/3136/2022

Case brief

AI extract

What is this about?

The High Court of Telangana, exercising powers under Article 227, set aside an order granting exparte ad-interim injunction because the trial court failed to record reasons for dispensing with notice and extended the injunction beyond the statutory 30-day limit without complying with Order XXXIX Rule 3 and 3A of CPC.

What did the court decide?

The impugned order dated 10.11.2022 in I.A.No.459 of 2022 was set aside. The trial court was directed to dispose of the interim injunction petition on merits after hearing both parties within four wee

Venumula Krishna Reddy Vs Kallem Vinay… — Civil Procedure and Limitation | Telangana HC (2023)

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[³²¹⁵¹

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HON,BLE DT. JUSTICE G. RADHA RANI

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CIVIL REVISION PETITION No: 3136 OF 2022

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Petition under Section 227 of Constitution of lndia against the order dated 10-1'1,2022 in l.A.No. 450 ot 2022 in O.S.No. 130 of 2022 on the file the Court of the Hon'ble Junior Civil Judge, at Thungathurthy.

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Between:

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Venumula Krishna Reddy, S/o. Venumula, Aged 52 years, Occ. Real Estate, Rio. H.No. 3-12-92154, Plot No. 54, 7th Cross A, Road No. 1, Rocktown Colony, Hayathnagar, K.V. Ranga Reddy Diskict, Telangana-500 068

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... Petitioner/Defendant

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AND

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Kallem Vinay Chandh Reddy, S/o. Kallem Venkata Reddy, aged 21 years, Occ Student, R/o. H.No. 6-67/1, Bhavani Nagar, Dilsukhnagar, Gaddiannaram, Saroornagar, Ranga Reddy, Telangana-500 060.

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... RespondenUPlaintiff

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lA NO: 2 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S. No. 130 of 2022 on the file of Junior Civil Judge at Thungathurthy, Suryapet District till disposal of the present Revision Petition.

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Counsel for the Petitioner: SRI VADEENDRA JOSHI

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Counsel for the Respondent: SRI G. MADHUSUDHAN REDDY

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The Court made the following: ORDER

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THE HON'BLE DT..I[JSTICE G. RADHA RANI

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CIVIL REVISION PETITION No.3136 OF 2022

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ORDER:

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This Civil Revision Petition is filed by the defendant

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aggrieved by the order dated 10.1 l.2rJ22 passed in I.A.No.459 of 2022 in O.S.No.l30 of 2022 by the Junior Civil Judge at Thungathurrhy, Suryapet District.

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Heard the leamed counsel for the petitioner, Sri Vadeendra Joshi and the lean'red counsel lor the respondent, Sri G. Madhusudhan Reddy

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As seen fronr the record, the respondent/plaintiff filed a

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suit for perpetual injunction and I.A.No.459 of 2022 seeking exparte ad-interim injunction. The Principal Junior Civil Judge, Suryapet, F.A.C. Junior Civit Judge, Thungathurthy on hearing the ptaintiffs counsel ordered exparte ad-interim injunction in favour of the plaintiff on 10.1 1.2022

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Chaltenging the said order, this revision is filed by the defcndar.rt contending that [lre ordcr of the Court in I.A.No.459 of 2022 in O.S.No. ll0 of 2022 dated l0.ll.l0l2 rvas against the well sertled

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\ .

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'a'

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l)r.GRR.l C. R. l'. \r;.3 l -t6 tl 2D ) ).

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principles of law. The court below had lai!ed to provide anv reason tn granting ths relief as prayed for in i.A.No.459 of 2022.^-the impugned order <sup>/as in violation of Order XXXIX Rule 3 oi CpC since the cour-t below haC lailed to give any reason lor disperrsing with issuancc ofprior notice to the defendant i.e., the petitioner herein. In the absence of reasons for dispensing with prior notice, granting injunction under Order XXXIX Rule I and 2 was null and void and the sarne was liable to be set aside lorthwith. The court below t-ailed to notice that the plaintiff./respondent had not produced any evidence cxcept making baseless statelnents that the detbndant u,as interfering with his possession over the suit schedr-rle property.^-fhe court below failed to follow the provisions of Rule 3A of Order XXXIX in assigning reasons l'or extending the exparte ad interim injunction beyond the period of .i0 days from the date of granting ol the ad-interim exparte injunction and prayed to set aside the order dated I 0. 1 1.2022 in I.A.No.459 of 2022 in O.S.No. 130 of 2022 on the file of the Principal Junior Civil Judge, Thungathurthy, Suryapet District.

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Learned counsel for the respondent/plaintiff on the other

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hand. contended that the appcllant/defendant instead of liling this appeal could have filed his counter before the trial court or could have

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DT.GRR.J C. R. P..\ o.3136 oJ 2(t22

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liled a petition to vacate the exparte ad-interiur injunction order, but approached this Cou( under Arlicle 227 ol the Constitution of lndia and prayed to direct the respondent to approach the trial couft and to fi[c his counter.

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Leamed counsel fbr the appellant relied upon the Division Bench^judgments of the High Court of Andhra Pradesh in Bacharaj Singhvi Vs. Hastimal Kotharirand Kasuganti Ananta Rao and another Vs. Kasuganti Aruna antl others2 and that of a Single Bench in The Divisional Forest Officer Chittoor (East) Division Vs.

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The Principal Subordinate Judge, Tirupati and Ors.3.

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On a perusal ol the impugned order, no reasons were assigned by the trial cou( while granting exparte ad-interim injunction in lavour of the plaintiff on l0.l1.2022 in I.A.No.459 of 2022. No notice was issued to the def-endant prior to granting exparte ad-interim injunction. A notice was ordered to the defendant after granting exparte ad-interim injunction directing him to appear on25.11.2022

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'^{(r) l98r (2) An. wR 4o} r t985 SCC OnLine AP 124 I t995 SCC OnLine AP4l9

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Dr.G RR.J C-R.P..'o.-l^{l-160f 20):}

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Even alter the^{delendantmade appearance and a vakalat}

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was filed on his behalf,^{the injunction ordelwas extendedon memoon} 09.12.2022 titl^{18.01.2023 i.e., after the expiryof 30 days lrom the} grant of expane^{ad-interim injunction ordel and the matter wasposled} for counter^{of the tlefendantin I.A.No459 of 2022 to l8'01'2023'}

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9 As per Order XXXIX^{Rule 3 of CPC:}

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Before^{granting injunctiott,Courl to direclnotice} lo opposile^{party. - TheCourt vhaLLin all cases,except} where it appears^{that the objectoJ} Sranling^the miunction vctultl^{be de/buted hy the deLaybe.fore} granting un injuncti.ort,^{directnoliceof the applicathn} fbr^{the sameto be gitento lhe opposite porty'} IProvided^{that, u'here it is proposedto granl an} injunction without^{gh)ingnoliceof the applicationto} the opposite^{party, the Court sholl record the reasons} .for^{its opinion thal the object of grantingthe} injunction woulcl^{be ttefeatedby delay' and requirethe} applicant-

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u) to rleliver^{to lhe oppositepurty, or to sendto him} by registered^{post, immediately after the order} granling the iniunclion^{has been made,a copy of} the applicationfor^{injunction togetherwith-}

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i. a copy of the ffidavit filed^{in support of} the aPPlication;

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ii. a coPY of^the Plaint;^and

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iii. a copies of^{documentson which the} apPlicant^reLies,and

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(b) to fle, on^{the dq) on which ;'uch injunctionis} granted or on^{the dayimmediately} Jbllowing^{that day'} an alfidavit slaling^{lhilt lhe coitie:;afore.roid hcttc been} so delivcred or^senl l

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DT.GRR,J C.R. P.t\u.-l 136 ol 2022

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l0. Rule 3,A is incorporated vide Amendment Act I of 19'16

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which emphasizes that

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3A- Court to tlispose of application for injunclion within thir\1 days - where an injunclion has been gronled witholtt giving notice lo the opposite party, the Court shall make an eruleavour to finally dispose of the applicalion v'ilhin thirty da.ys .from the dale on which the injunction wa-r granled,. and where it is unable sct to do, il shall record its reosons for such inability.

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I 1. As per Rule 3,A, il any injunction was granted without

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norice, the Court^{shall linally dispose ol-the applicationwithin30} days

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from the date on^{which injunction} was^granted and if the Courl is unable to do. so it shall record its reasons lbr such inabilitv.

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A Division Bench of the High Court of Andhra Pradesh

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in Bachara^j Singhvi Vs. Hastimal Kothari⁽ I supra) held that:

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" Under Order XXYIX Rule 3, it is incumbenl upon the lower court to issue notice beJbre granting injunction. l/ .for any reason, the court proposes to Erdnt^{int(riminjunction without issuing nuli(eon} account of some special circumstances, il is necessary thal the court should record reasons therefor. It is the proviso that makes il mandatory on the part of the court to give reasons wilh reference to the (:irLum.\lancas thut t:ompclled lhe courl to come to the conclusion lhltl lime tuken in.serving lhe nolice v,ould defiut the vaty purl)ose <tf grunting the inlunt'tion. 7'herelbre, uny ortler pussed granling injunction v'ithoul giv'ing the reu.xtns fbr invoking the exception

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Dt.G R R.J (. R. P.r.o..1 l.t6 of 202)

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ConsideLing thc .ludgrnent ol the lJigh Coun of^Arrdhla

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Pradesh in Balaiah Vs. Aravindanagar Co-op.^{HousingSocietya}

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wherein it was held that:

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"nonethelets lhe legislature in requiring lhe court under the amended Rule^j ry' Order XWIX to record the^rea;;on-r soughl lo ensure thol the coutl exercised^{lhe pouteroJ'} issuing injunction exparte only upon^its coming to lhe conclusiort lhal lhe^delay u,ould dc[cat lhe objecl o/ grcnting^lhe injunclion. ll v.ds not^vesting lhe courl^v,ilh any nev) or additional ytv,er. T'he^power lo grant a temporary inittntlion and^thc circumslances in which lemplrarY injunclion could he^granteJ ure slotedⁱⁿ RuLes I and 3 o/ Order XXXLY C. P. C."

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It held that:

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ln view of this decision and also in^the light of the earlier discussion, u'e arc of^lhe opinion^{that the} order ol tha lou,er tourl is^{rutt tuslainable as il has} not given an)/ reasons^'lhc order^{merclyre./brsltt the} perusal of the allegatkns in the alfidt;it, whith^guve rise lo the thoughl that urgent orders'^ha.ve to^be passed. This, in our view, is not a sufficient compliance of Rule 3 of Order -YYXIX C.P. C.^The rule requires lhe court lo record^reasons ./br concluding thal urgenl orders^{rtre necessury before} an exporle injunction^{is issued.Mere perusalof the} allegations^{in the a,frdavit and thinking thattheissue} of exparte injunction^{is necessar.y in no way satisfies} the mandalor-v requirement.⁷ he order needs lo tlt.sclose on the ./oce o/ it thol the courl^{has applied} its ntind urul huving been con'''incecl, has^{i-ssued the} exparle intcrim inJunLliotl '

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'(r)^{t98o (l) ALT90}

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DT.GRR,J ('. R. P.,'o.l I J 6 oJ 2022

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|,4. [n Kasuganti Ananta Rao and another VS. Kasuganti

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Aruna and othcrs (2 supra). the Division bench held that:

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.'[4lhenevcr interim injunction is granted withoul notice. the .fbllotting are to he.fulfilled. (11 the ohject ol granting the iniunction would be defeared by delay.

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(2) the court shall record the reasons lhal the object of granling the iniunction would be deJeated hy delay

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These twin ingredients are mandatory in nature and non compliance will vitiate and render lhe order null and void. T'he reason or reosons will have to be patent, as insisted hy the legal mandate, there being uh:olule\ no .s'tope fitr latent und inferentiul reason. 'flterr: i.t tru tLtuht lhut no insistettce upon the parliculdr mode in which the reason has to be framed, so^long as lhe reason is expre.ssly -slated. Hence the impugned order .sulJbrs 1liom the infirmity o/ wunt o.f any reason, making the order illegal. and so must held to be void^"

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| 5. Answering further, whether the order is ensconced by

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the provision of Section 99 C.P.C., it held that:

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'' ln the case on hand the question whether it olJbcts lhe jurisdiction or not JAlls no doubt /br delermination and since as has been held earlier the provi.sions oJ Rule 3 Read with proviso of Order 39 CPC are mandatory and any non-observance of such mandatory procedure renders the order void and rnasmuch as any error of law can be reckoned as.iurisdictionul, the impugncd order viewed from tn4' angla .dnnot lall *-ithin the ambit of .lec. 99 und cluim pt otection thereJi.ont. Ile.sultantly, in our .jutlgment^theimpugned order,^y,hich luck reu.sons v,hich rtu.st be assigned us envi.saged under Order 39 rulc 3 reod vilh proviso it.t gronling injunction

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DT.GRR,J C. R. P. \o.31-16 of 2022

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r.:

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\rilhoul noliLc to thc oP\o.\itc pdtlr-, is^|ilial?dond the srtnrc^(:annol .\eek prolcttirtn of seclktn^{99 oi lhe} code and so lhe :ame^{is held void ()onsequenlly'the} order under these appeals confrming^{the orderol} the.first court is set aside and^{lhe caseis rentitted} back to the court of fir..\l^{inslancelo dispose of the} i nt c rl Ut' ut orv uf d^{itat i,,n} : .[i^{I t Jfrt r,tttLtr I i nPreIi e I} sought 1or including^{the order oJ injunction,} according to law and^{in the light of the ()bservations} made in these appeals.^"

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ln The Divisional^{Forest Officer Chittoor(East)}

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Division Vs. Thc Principal^{Subordinate Judge, Tirupatiand Ors. (3}

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supra), the singte^{judge of the High Court ol'AndhraPradeshheld that:}

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"7. It is settled law thal the power oJ superintendence conferrad^{on the l{igh Courl by} Article 227 is not conftned to^{administrative} superinlendence only but^{hcludes the povt'erof} .iudicial^{revisionalso and the same may be} exercised even suo-molu. The^{exislenceof an} alternalive remedf is^{per se nol a bar} ./ttr^the exercise ty''power^{uruJer Article227.The pow'er} under Arlicle 227^{is much u'iderthan the power of} revision under Section I I5^{(.-.P.(:.Il is aquallywell} settled that the power^{urule r Arlicle227 i.s intended} to keep the inferior^{courls and tribunulswithin the} bounds of their authority^{and lo see lhdl lhey acl in} a legal manner and that it cunnol^{be used} fttr correcling mere errors.^{However,in cases of} manifest injustice or flagrant^{violationof lau', the} High Court will^{be justifed in interferingunder} Article 227. These^{principle.s are wcll known ttnd it} is nol necessary lo cit? uulhorities for^theabove proposiliotls. Re[erence ntrt-v. however,^{be madeto} u recenl .judgment of this Court in Snrada^Baiv. Smt. Shakuntala Bai [(7)^{19.q2 (2)} AIl^66()] wherein my learnttcl llrother.luslice^{Parvatha Rrto,}

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DT.GRR.J ('. R. P.No.l 136 0f 2022

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I fi II li I I I i i i I I I l

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I t

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uftcr on erhuustiv(. rclict,o/ case law, conclutfutl Ihut^y,here the order of thc lo't,er t:ourl is arbitrary dnd i.t moLle in gross ubuse of' jurisdiction, it can he set uside mtder Article 227 o/ the Cctnstitution.

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And turther held that:

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I do not, however, prcpose to go into the merils and pass fnal orders on the injunction petilion as the same will have to be dealt with by the lower courl. I shall only examine lhe limited question whether thc impugned order dated 19-5-1989 grunting interim iniunction .yhould be allowed to remain in force till the lower court Jinally disposes of lhe petition on merits. I have already extracted lhe impugned rtrder uboye lt does not cont(lin any reo.son.s vhutsoet'cr untl appears to have been po;:ad ntathonituIly wi1fuoy1 upplication o./' ntind. It doc; not utnplv with thc mandolory r(qrurcments of Rule 3 ol Order 39 C.p.C. Tfuugh nolice wos ordered to the respondents before passing the :taid order, the fact remains that notices to respondents I and 2 were not Wt served und Jiesh notice.e v)ere ordered to them. It was. there/itre. int:umbent on the lower Court to record the reusons Jbr granting the interim injunclion as mandated hy the proviso to Rule 3. Failure to record the reasons viliates the order and renders it void. "

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ll . [n the present case also no reasons were assigned by the

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court in granting expafte ad-interim injunction as incorporated by the

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proviso in Rule 3. Without notice to the other party and without recording the rcasons as to w,hy it came to the conclusion that the time [aken in serving the noticc would deleat the very purpose of granting

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DT.GRR.J C.R.P.,'o.J 136 of 2022

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injunction, the lower court^went on^{extending the injunctionorder} without cornplying the rcquirements ol^Rule 3A^{ot Order XXXIX.} Hence, it is considered fit to^{set aside the order dated10.tt.2022in} I.A.No.459 of 2022 in O.S.No.^{130 of 2022 and direct the trial couftto} dispose of the petition for temporaty^{injunction on merits after hearing} both the parties and to^{pass appropriate ordersthereof in accordance} with [arv \,ithin four u'eeks from^{the date of receipt of this order.}

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[n the result, the Civil^{RevisionPetitionis disposedof} setting aside the order dated^{10. 11.2022 in t.A.No.4-s9ol 2022in} O.S.No.i30 of 2022 directing^{the trial coutl to disposeof the petition} for temporary injunction^{on merits after hearing both the parties and to} pass appropriate orders thereof in^{accordance with law within four} weeks from the date ofreceipt ofthe^{copy of this order.}

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Miscellaneous petitions^{pending,if any,shall stand closed.}

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sd/- K. V IAH ASSISTANT REGI RAR //TRUE COPY//

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To,

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SECTION FICER

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