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2019 DIGILAW 572 (KAR)

M. Chandrashekar S/o Sri. Munithayappa v. B. Ramaiah S/o late N. Balaiah

2019-03-06

B.VEERAPPA

body2019
ORDER : These writ petitions are filed by the defendant against the order dated 07.02.2017 passed in O.S. No.743/2017 on the file of the XXII Additional City Civil and Sessions Judge, Bengaluru, granting police protection to the plaintiffs as prayed for. 2. The plaintiffs/respondents have filed a suit for permanent injunction against the defendant-present petitioner contending that they are the absolute owners and in possession and enjoyment of the schedule property and also filed an application-I.A.No.1/2017 for temporary injunction. The trial Court by order dated 30.01.2017 allowed the application-I.A. No.1/2017 and granted an ex-parte temporary injunction restraining the defendant from constructing structure without leaving set back in his property and that this ex-parte temporary injunction order will be in force till defendant files his objections to I.A.No.1/2016 and also directed to issue summons and notice on I.A. No.1/2017 together with order (passed) on I.A. No.1/2017 to defendant, after plaintiff complies with Order 39 Rule 3 of CPC, returnable by 15.03.2017. 3. It is the case of the petitioner-defendant that the plaintiffs-respondents have filed an application under Section 151 of CPC to advance the case from 15.03.2017 to 07.02.2017. For the reasons stated in the application, the same came to be allowed and was granted police protection for implementation of temporary injunction granted on 30.01.2017, on the ground that defendant-petitioner has violated the order of temporary injunction. Hence, the present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. Nishanth. A.V., learned counsel for the petitioner contended that the impugned order passed by the trial Court granting police protection is in utter violation principle of natural justice and cannot be sustained. He would further contended that the trial Court granted ex-parte temporary injunction on 30.01.2017 in favour of the plaintiffs-respondents and directed for issuance of suit summons and notice of I.A.No.1/2017 together with order on I.A.No.1/2017 to the defendant-petitioner returnable by 15.03.2017. Though the plaintiffs-respondents filed applications on 07.02.2017 for advancement of case and for police protection, the copies of the same were not served on the defendant. The learned Judge without providing an opportunity of being heard, straightaway granted police protection. Therefore, he sought to allow the writ petitions. 6. Per contra, Sri. H.C. Sundaresh, learned counsel for respondents submits that the trial Court granted an ex-parte order of temporary injunction on 30.01.2017. The learned Judge without providing an opportunity of being heard, straightaway granted police protection. Therefore, he sought to allow the writ petitions. 6. Per contra, Sri. H.C. Sundaresh, learned counsel for respondents submits that the trial Court granted an ex-parte order of temporary injunction on 30.01.2017. In spite of ex-parte temporary injunction being granted, the defendant proceeded for construction in violation of the order passed by the trial Court. Therefore, the plaintiffs were forced to file application to advance the case from 15.03.2017 to 07.02.2017. Accordingly, the trial Court has allowed the advance application and granted police protection to implement ex-parte temporary injunction granted on 30.01.2017. Therefore, he sought to dismiss the writ petitions. 7. Having heard the learned counsel for the parties, it is undisputed fact that the trial Court by order dated 30.01.2017 has granted ex-parte order of temporary injunction in favour of plaintiffs-respondents restraining the defendant-petitioner from constructing structure without leaving set back in his property and the ex-parte temporary injunction order will be in force till defendant files his objections to I.A.No.1/2016 along with issue of notice and summons of I.A.No.1/2017 to defendant-petitioner, after plaintiffs-respondents complies with Order 39 Rule 3 CPC, returnable by 15.03.2017. In the meanwhile, the plaintiffs-respondents have filed compliance of affidavit in the office on 30.01.2017 and subsequently, moved an application to advance the case from 15.03.2017 to 07.02.2017 for police protection on the ground that the defendant-petitioner has violated the ex-parte temporary injunction order. 8. Admittedly, the copy of the said advance application or the application for police protection were not served on the defendant and order sheet does not depict as to when the summons was received by the defendant and defendant was not given an opportunity of being heard on the application filed by the plaintiffs. The learned Judge has proceeded to pass one line order and directed the police to implement the ex-parte temporary injunction order. The order passed by the trial Court is not a speaking order, without assigning any reasons, is in violation of principles of natural justice. When the injunction order was granted by the trial Court, it is the duty of the trial Court to ascertain as to whether the summons has been served or the copies of the advance application and police protection application was served or not. When the injunction order was granted by the trial Court, it is the duty of the trial Court to ascertain as to whether the summons has been served or the copies of the advance application and police protection application was served or not. In the absence of the said material, the impugned order dated 30.01.2017 passed by the trial Court cannot be sustained. 9. In view of the above, the writ petitions are allowed. The impugned order passed by the XXII Additional City Civil and Sessions Judge, Bengaluru dated 07.02.2017 granting police protection is hereby quashed. The matter is remanded to the trial Court for fresh consideration. The trial Court is directed to provide an opportunity to the defendant-petitioner to file objections to the application for advancement of case and for police protection and pass appropriate orders in accordance with law. With the above observations, the writ petitions are disposed of.