GURUPADAYYA NAGAYYA Vs. MAHADU ARJUN

JUDGEMENT

(1.) Sri H.F.M.Reddy took notice for the respondents at the stage of admission and submitted that the matter may be disposed of now itselt. Therefore, with the consent of the learned Counsel on both sides, this matter is treated as set down for final disposal for this date and accordingly, it was heard.

(2.) The petitioner is the plaintiff and the respondents are the defendants in OS.60 of 1975 on the file of the Court of the Munsiff, Athani. The said Uit is for permanent injunction restraining the defendants from interfering with the plaintiff's right to convey water to his land as per the terms of an agreement between the parties through the lands of the defendants by pumping water from the river Krishna. Before notice to the defendants, the plaintiff filed an application for temporary injunction and, on that application, the learned Munsiff, on a perusal of the application and the affidavit in support thereof as also the agreement relied upon, granted an ex parte order of temporary injunction restraining the defendants from obstructing the plaintiff in fixing an electric motor in the place of an oil engine on the land of the defendants for pumping water from the river Krishna to the land of the plaintiff through the lands of the defendants.

(3.) That order was apparently made under Or 39, R 2 CPC. It is also apparent that the learned Munsiff did not consider it necessary to order notice before granting the application as R.3 of Or.39 confers discretion to the Court to make an ex parte order where it appears that the object of granting an injunction would be defeated by the delay. The defendants, instead of filing an application for vacating the order of temporary injunction granted ex parte as they were entitled to under R.4 of Or.39, straightaway preferred an appeal to the Court of the Civil Judge, Belgaum; the learned Civil Judge (Sri V.B.Hadli) allowed the appeal and remitted the matter to the trial Court on the ground that S.4 of the Karnataka Land Reforms (Second Amendment) and Miscellaneous Provisions) Act, 1974 (Kamataka Act 31 of 1974), hereinafter called the Act', is a bar to the making of ex parte order of temporary injunction without notice to the defendants.