M S PRITHVIRAJ Vs. MUKESH REDDY

JUDGEMENT

(1.) This revision petition arises out of the judgment and order dated 5-6-1995 passed by II Additional Munsiff, Bangalore, on interim relief application (I.A.I) in Original Suit No. 268 of 1995. The plaintiff-opposite party had filed a suit for decree for permanent injunction restraining the defendant, his agents and servants, G.P.A. holders, henchmen or anybody acting on behalf of the defendant from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property by the plaintiff as well as from putting any construction on the suit property. Along with the plaint, the plaintiff-opposite party moved with an application under Order 39, Rule 1, C.P.C., read with Section 151 of the Code of Civil Procedure and prayed for grant of temporary injunction to the above effect as well. The learned Munsiff after hearing the Counsel for the plaintiff on I.A. I, observed that as per the plaintiffs case that the properties in dispute were ancestral property in which the plaintiff claims a share and that the plaintiffs father failed to maintain the plaintiff and neglected the plaintiff. The plaintiff has further alleged in the plaint that the defendant is making arrangement to put up construction on the suit property. Looking to the facts and circumstances narrated in the affidavit, the learned Munsiff thought that the object of the interim relief application might be frustrated if ex parte interim order is not granted and as such, by his order dated 5-6-1995, the learned Munsiff granted ex parte injunction order in the following terms:

(2.) Having felt aggrieved from this order of the learned Additional Second Munsiff, Bangalore, the defendant has filed this revision under Section 115 of C.P.C. Notice having been issued to other side, the plaintiff-respondent appears through his Counsel Sri Y.N. Satyanarayana Rao on behalf of respondents. Today, this case is listed for orders on LA. No. II for vacating stay, which was granted in this case while admitting the revision petition.

(3.) I have heard Sri M.U. Poonacha for the applicant and Sri S.P. Shankar assisted by Sri Y.N. Satyanarayana Rao for the opposite parties. Sri M.U. Poonacha, learned Counsel for the revision petitioner urged that the order impugned suffers from jurisdictional error. The learned Counsel for the revision petitioner submitted before me that the land in dispute is agricultural land and that under Section 4 of the Karnataka Land Reforms Act, it has been provided that no ex parte injunction shall be granted or in other words no injunction order shall be granted without issuing any prior notice to the opposite parties to injunction application or the defendants in the suit. The learned Counsel for the revision petitioner invited my attention to Section 4 of the Karnataka Land Reforms Second Amendment and Miscellaneous Provisions of Act, 1974 and submitted that in view of Section 4 of the Act 31 of 1974, the temporary injunction could not be granted ex parte because the mandate of law is that it shall not be granted except after service of notice of application on the defendant. He has submitted that as such the order suffers from jurisdictional error. Sri Poonacha has submitted that the case is one which calls for interference under Section 115 of C.P.C. The learned Counsel for the respondent placed reliance on the decision of this Court in Kanna Belchada v Ramappa Poojary and Another and contended that no appeal did lie to the High Court or to the Subordinate Court and as Section 4 was mandatory as such the ex parte order passed in violation thereof suffers from violation of the mandatory provisions of Section 4 of the Act. So the Court below has acted illegally.