Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1041 (KAR)

H. S. Chandra v. H. Prakash

2020-06-10

ASHOK S.KINAGI

body2020
JUDGMENT Ashok S. Kinagi, J. - Petitioner/Defendant has filed this writ petition seeking the mandamus directing the XXV City Civil and Sessions Judge (CCH-23), Bengaluru to hear the applications i.e. I.A. Nos.I and II filed in O.S. No.2557/2018. 2. The brief facts of the case are that the respondent/plaintiff has filed a suit for partition and separate possession and injunction. In the suit, respondent/plaintiff has also filed I.A. Nos.I and II, Annexures D and E, respectively, for grant of tempoinjunction. 2.1. On 05.04.2018 the trial Court had granted an exparte order of temporary injunction to the respondent. The petitioner appeared through his counsel and filed written statement and objections to. I.A. Nos.I and II. 2.2. The trial Court did not dispose of the said applications. Hence, the present writ petition is filed seeking direction to the trial Court to dispose of I.A. Nos.I and II. 3. Heard the learned counsel for the petitioner. 4. The trial Court under Order XXXIX Rule 3A of Code of Civil Procedure had passed an exparte interim order, wherein injunction has been granted without issuing notice to the opposite party. Order XXXIX Rule 3A of Code of Civil Procedure reads as under: ""Rule 3A Order XXXIX of Code of Civil Procedure 1908 "Court to dispose of application for injunction within thirty days" Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavor to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability." 5. The Rule casts a three pronged protection to the party against whom the ex-parte injunction order was passed. First is the legal obligation that the Court shall make an endeavor to finally dispose of the application of injunction within the period of thirty days. Second is the legal obligation that if for any valid reasons the Court could not finally dispose of that application within aforesaid time, it has to record the reasons thereon in writing. 6. In the instant case, the trial Court has granted ex-parte Injunction Order on 5.4.2018 and the trial Court has not made an endeavor to finally dispose of I.A.Nos.1 and 2 within prescribed time and further the trial Court has not assigned any valid reasons for not disposing of I.A.Nos.1 and 2. 7. 6. In the instant case, the trial Court has granted ex-parte Injunction Order on 5.4.2018 and the trial Court has not made an endeavor to finally dispose of I.A.Nos.1 and 2 within prescribed time and further the trial Court has not assigned any valid reasons for not disposing of I.A.Nos.1 and 2. 7. On perusal of the order sheet, it is clear that the trial Court has kept pending consideration of I.A. Nos.I and II without passing final order within 30 days from the date of passing an interim order. Thus, it is apparent that the trial Court has failed to dispose of the said applications within the time limit. 8. Under such circumstance, the choice is for the petitioner either to approach the trial court and move an application for vacating or to move the Appellate Court. 9. The said view is supported by the judgment of the Hon'ble Apex Court in the case of A.Venkatasubbiah Naidu vs S. Chellappan And Ors, (2000) AIR SC 3032 wherein at paragraph 11, it is held as follows : 11. "xxxxxx The choice is for the party affected by the order either to move the Appellate Court or to approach the same Court which passed the ex-parte order for any relief." 10. Accordingly, the writ petition is disposed of, reserving liberty to the petitioner either to approach the trial Court for vacating the interim order under Order XXXIX Rule 3A of C.P.C. or to move the Appellate Court under Order XLIII Rule 1 of CPC to challenge the order dated 05.04.2018 by filing a Miscellaneous Appeal as per Order XLIII Rule 1 of the Code of Civil Procedure.