FORTIUS INFRADEVELOPERS LLP Vs. NARASAMMA

JUDGEMENT

(1.) 6th defendant has filed this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure challenging the correctness of the order passed by 1st Additional Senior Civil Judge, Bangalore Rural District, Bangalore, granting an ex parte order of Temporary Injunction on 13.08.2014.

(2.) IN the normal course, this Court would have refrained from interfering with such order by reserving liberty to the parties to approach the jurisdictional Court. However, the extraordinary circumstances or the exceptional circumstances present in the instant case have perforced this Court to examine the correctness or otherwise of the said order. Rule 3A of Order 39 CPC would indicate where an injunction had been granted without giving notice to the opposite party, such Court should make an endeavour to finally dispose of the application within 30 days from the date on which injunction was granted and where it is unable to do so, it has to record reasons. In the instant case, after the order of exparte temporary order of injunction was granted on 13.08.2014 the matter was ordered to be listed on 18.09.2014. However, appellant 6th defendant filed an application to advance the case to 25.08.2014 along with I.A.Nos.II and III. Thereafter, matter came to be adjourned from time to time namely, from 25.08.2014 to 27.08.2014, from 27.08.2014 to 01.09.2014, from 01.09.2014 to 08.09.2014, from 08.09.2014 to 09.09.2014, from 09.09.2014 to 18.09.2014, from 18.09.2014 to 22.09.2014, from 22.09.2014 to 06.10.2014, from 06.10.2014 to 13.10.2014 and from 13.10.2014 to 15.10.2014. Thus, it could be seen from the order sheet of the trial Court the exparte order of temporary injunction which was granted on 13.08.2014 was not confirmed, varied or set aside within 30 days from the date of grant of such order. As such, the appellant 6th defendant has approached this Court invoking appellate jurisdiction. The Hon'ble Apex Court in the case of A. VENKATASUBBIAH NAIDU VS S. CHELLAPPAN AND OTHERS, 2000 7 SCC 695 has held that in view of the mandate of proviso to Rule 3 of Order 39 CPC to the effect that where the Court after granting an order of temporary injunction does not dispose of said application within 30 days and such Court fails to decide the application or vacate exparte temporary injunction, such order is deemed to be a final order for purposes of filing an appeal under Order 43 Rule 1(r) CPC. Hence, this Court is of the considered view that present appeal is to be held as maintainable and as such, same is being entertained by this Court.

(3.) PLAINTIFFS have filed a suit for declaration and injunction in O.S. No.1288/2014. The said suit was initially filed on 24.07.2014 and same came to be registered as F.R. No.1218/2014. Registry had raised certain objections, which were required to be complied by plaintiffs. In the meanwhile, caveat petition came to be filed by defendant No.2 i.e., respondent No.5 in the present appeal on 26.07.2014, and it came to be registered as No.692/2014. Registry has put up the said caveat petition in the file of present suit as could be seen from the order sheet appended to the present appeal memorandum at Annexure 'A'. A note has also been made by the Registry to the following effect: