LEGACY GLOBAL PROJECT PRIVATE LIMITED Vs. SHIVAKUMAR

JUDGEMENT

(1.) This appeal is filed by the defendant in O.S.No.652/2016 on the file of Senior Civil Judge, Devanahalli; he has challenged the order dated 19.09.2016 passed in the said suit. The events that have led to preferring this appeal are as follows:

(2.) The respondent being the plaintiff instituted a suit for declaration and possession in respect of property measuring 1 Acre 26 guntas in Sy.No.265 (Old Sy.No.46/7) of Doddajala village, Jala Hobli, Bengaluru North Taluk. The plaintiff also filed two applications under Order 39 Rules 1 and 2 Civil Procedure Code seeking an order of temporary injunction to restrain the appellant/defendant from alienating the suit property pending disposal of the suit and direct the defendant to maintain status quo in respect of the suit property. The plaintiff prayed for passing ex parte order of injunction on these two applications. The trial court on being convinced that the plaintiff had made out a case for passing an ad interim order of temporary injunction as per I.A.No.1, passed an order on 19.09.2016 restraining the defendant from alienating the suit property in any manner till the next date of hearing. So far as another application is concerned the trial court did not pass any order and opined that without hearing the defendant, the relief sought for in I.A.2 could not be granted. The trial court having passed an exparte order on I.A.No.1 on 19.09.2016 posted the case to 3.2.2017 for appearance of the defendant. Aggrieved by this order, the defendant has preferred the present appeal.

(3.) The learned counsel for the appellant raises two points, the first being that the trial court, after granting an exparte order of temporary injunction gave three days time for complying under Order XXXIX Rule 3 CPC, which is opposed to mandate of law. Second point is that the application for temporary injunction has to be disposed of within 30 days from the date of granting an exparte order according to Order XXXIX Rule 3 A CPC. Contrary to this, the trial court, after passing an order on 19.09.2016, posted the case to 03.02.2017. Thus the trial court has grossly flouted the mandatory requirement to dispose of the application within 30 days from 19.09.2016. He placed reliance on the judgment of the Hon'ble Supreme Court in A. Venkatasubbaiah Naidu Vs. S. Chellappan and other, 2000 7 SCC 695 to argue further that inaction of the trial court has given rise to prefer an appeal and secondly to recommend for taking disciplinary action against the trial court judge.