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Legacy Global Project Private Limited, Thimmaiah v/s Shivakumar


Company & Directors' Information:- B N GLOBAL PRIVATE LIMITED [Active] CIN = U15400PB2014PTC038543

Company & Directors' Information:- K V GLOBAL PRIVATE LIMITED [Active] CIN = U24100DL2014PTC263567

Company & Directors' Information:- GLOBAL CORPORATION LIMITED [Active] CIN = L74999DL1992PLC048880

Company & Directors' Information:- T & I GLOBAL LTD. [Active] CIN = L29130WB1991PLC050797

Company & Directors' Information:- K G GLOBAL PRIVATE LIMITED [Active] CIN = U74999DL2000PTC104788

Company & Directors' Information:- A. V. GLOBAL CORPORATION PRIVATE LIMITED [Active] CIN = U63090DL2007PTC159315

Company & Directors' Information:- A N GLOBAL LIMITED [Active] CIN = U92110MH1985PLC035269

Company & Directors' Information:- D S GLOBAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071516

Company & Directors' Information:- A B C GLOBAL PRIVATE LIMITED [Active] CIN = U51909PB2011PTC035103

Company & Directors' Information:- I A T GLOBAL COMPANY PRIVATE LIMITED [Active] CIN = U24116DL1997PTC084916

Company & Directors' Information:- J D GLOBAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC091270

Company & Directors' Information:- B N G GLOBAL INDIA LIMITED [Active] CIN = U52590DL2011PLC225377

Company & Directors' Information:- N K COMPANY (GLOBAL) PRIVATE LIMITED [Active] CIN = U52390WB2010PTC153624

Company & Directors' Information:- K B K GLOBAL PRIVATE LIMITED [Active] CIN = U24296DL2016PTC290487

Company & Directors' Information:- M & D GLOBAL PRIVATE LIMITED [Active] CIN = U31101UP1974PTC003937

Company & Directors' Information:- V R GLOBAL PRIVATE LIMITED [Active] CIN = U45200WB2007PTC120797

Company & Directors' Information:- A J PROJECT PRIVATE LIMITED [Active] CIN = U70101WB2006PTC110040

Company & Directors' Information:- M M GLOBAL PRIVATE LIMITED [Strike Off] CIN = U29120WB1986PTC041280

Company & Directors' Information:- R V GLOBAL PRIVATE LIMITED [Active] CIN = U74990MH2009PTC195301

Company & Directors' Information:- M M C GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U11200MH2010PTC206910

Company & Directors' Information:- S R GLOBAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1997PTC084553

Company & Directors' Information:- H V GLOBAL PRIVATE LIMITED [Active] CIN = U18101DL2000PTC103960

Company & Directors' Information:- R P GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74990MH2009PTC193409

Company & Directors' Information:- M S GLOBAL PRIVATE LIMITED [Active] CIN = U70100MH2008PTC213273

Company & Directors' Information:- M B S PROJECT PRIVATE LIMITED [Strike Off] CIN = U45209GJ2000PTC038147

Company & Directors' Information:- R S V GLOBAL LIMITED [Strike Off] CIN = U51909DL1994PLC059032

Company & Directors' Information:- K C PROJECT INDIA PRIVATE LIMITED [Active] CIN = U55101DL1997PTC088558

Company & Directors' Information:- N B GLOBAL (INDIA) PRIVATE LIMITED [Active] CIN = U15122UP2012PTC051614

Company & Directors' Information:- B J S PROJECT PRIVATE LIMITED [Active] CIN = U74900WB2015PTC206605

Company & Directors' Information:- K D PROJECT PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209307

Company & Directors' Information:- A M GLOBAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC261061

Company & Directors' Information:- LEGACY CORPORATION PRIVATE LIMITED [Active] CIN = U45209TG2011PTC078160

Company & Directors' Information:- L S A GLOBAL INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098308

Company & Directors' Information:- R L GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U52300HP2014PTC000764

Company & Directors' Information:- G R GLOBAL PRIVATE LIMITED [Active] CIN = U70102KA2013PTC069586

Company & Directors' Information:- H. E. GLOBAL PRIVATE LIMITED [Active] CIN = U72901GJ2016PTC092866

    Miscellaneous First Appeal No. 39 of 2017 (CPC)

    Decided On, 30 November 2017

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE SREENIVAS HARISH KUMAR

    For the Appellant: M.G. Kumar, Advocate. For the Respondent: K. Srihari, Advocate.



Judgment Text

(Prayer: This Miscellaneous First Appeal is filed under Order 43 Rule 1(r) of CPC, against the order dated 19.09.2016 passed on I.A.No.1 in O.S.No.652/2016 on the file of the Senior Civil Judge, JMFC, Devanahalli, issuing temporary injunction notice of I.A.No.1 filed under Order 39, Rule 1 and 2 CPC.)

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 anddirect 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 ofwithin 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.

4. The learned counsel for respondent submitted that appeal could be allowed, as even according to him, the trial judge has committed an error.

5. I have perused the impugned order. Its operative portion reads as below:

"ORDER

As per I.A.No.1 Issue an ex-parte ad- interim order of temporary injunction againstthe defendant restraining him from alienating the suit schedule property in any manner till next date of hearing.

The plaintiff to comply Order 39 Rule 3 of CPC in respect of I.A.No.1.

Issue temporary injunction notice, of I.A.No.1, emergent notice of I.A.No.2 and suit summons to the defendant.

It is made it clear that, if the office found deficit process fee or plaint copies, same shall be comply within three days, or else the interim order will be cancelled automatically, in respect of I.A.No.1.

Returnable by: 03.02.2017."

6. The reason for extracting the operative portion of the impugned order is to make it clear that the trial court did not give three days time for reporting compliance under Order XXXIX Rule 3 CPC. It just gives a meaning that compliance should be reported within 24 hours and nothing more. With regard to next part of the order giving three days time for paying deficit process fee or furnishing copies of plaint for issuance of summons to the defendant, it appears that the learned counsel for appellant has misunderstoodthis portion of the order of trial court. Once the court says that compliance under Order XXXIX Rule 3 CPC should be made, the obvious meaning is that it should be within 24 hours. Passing further order for issuance of summons, cannot in any way be linked with the direction given to plaintiff to comply with Order XXXIX Rule 3 CPC. This argument is therefore worth rejection.

7. The second point relates to disposal of application for temporary injunction within 30 days from the date when the court grants or passes an ad interim order by dispensing with notice to defendant. The Hon'ble Supreme Court in A. Venkatasubbaiah Naidu (supra) has held as below:

"17. The aforesaid 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 endeavour 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 the application within theaforesaid time the Court has to record the reasons thereof in writing".

8. The learned counsel for appellant has also placed reliance on two judgments of this court -1) Ravishankar Chudamani Sarnaik Vs. S.R. Krishnam Raju [MFA.No.6072/2008] and 2) Shankar Gowda Lingana Gowda Patil vs. R.Govinda [MFA.No.7840/2005]. In these two decisions also, it is held that the application for temporary injunction is required to be disposed of within 30 days of ad interim order is granted by dispensing with notice to defendant. There is no need to refer to another judgment in the case of Manipal Centre Apartment Owners' Association Vs. S. Rajendra Babu [Criminal Appeal No.910/2007 c/s Criminal Appeal No.909/2007], as it is no way related to point involved in this case.

9. The judgment of the Supreme Court in A. Venkatasubbaiah (supra) is a clear answer to the argument put forward by appellant's counsel that a date beyond 30 days cannot be fixed after passing of ad interim order. There is no such restriction, but a real intriguingaspect is disposal of application within 30 days. Order XXXIX Rule 3A CPC reads as below:

"3-A. 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 endeavour 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".

10. Careful reading of Order XXXIX Rule 3A CPC makes it very clear that need to dispose of the application arises when the aggrieved party appears before the court and states that his interest is affected or prejudiced on account of the order granted by the court. In other words, the defendant should file his written statement and statement of objection to the application or an application under Order XXXIX Rule 4 CPC and insist on the Court for disposing of the application for temporary injunction. Once the court grants an ad interim order, it means it has applied its mind for granting an order on being satisfied with plaintiff's case.If the court has to come to a contrary opinion, it is duty of the defendant to make out a case for vacating or modifying the order. The court may either decide to confirm the order already passed by it or vacate the order; it is a decision to be taken after hearing both plaintiff and defendant. But if the defendant, without filing written statement or statement of objection to application or an application under Order XXXIX Rule 4 CPC, complains that the mandate of Order XXXIX Rule 3A CPC has been flouted, I think, he has no right. In fact if strict construction to Order XXXIX Rule 3A CPC is given, it comprehends disposal of the application on merits, i.e., by assessing the plaintiff's as also the defendant's case, not just by considering the plaintiff's case alone. Although the court adjourns the case beyond 30 days after passing ad interim order, the defendant can get the case preponed, file statement of objections and written statement and insist on deciding the application. In fact, the very purpose of requiring the plaintiff to comply with Order XXXIX Rule 3 CPC is to put the defendant on notice well in advance before the summons issued by the court is served on him so thathe can urge for disposal of the application if he is really aggrieved by the ad interim order granted by the court. The defendant gets no right to complain against the trial court, if he fails to submit his written statement and statement of objections. Even if he cannot file written statement on the first day, he should file it before expiry of 30 days and also be ready to argue.

11. In the case on hand, it appears that the appellant who is defendant in the suit has not filed his written statement and objections statement to the application, nor has he filed an application under Order XXXIX Rule 4 CPC for vacating the order. When the learned counsel for appellant is questioned whether written statement and objection statement have been filed, he submitted that it was not necessary and he argued that it was the duty of the court to have disposed of the application within 30 days. This is untenable and unrealistic argument. Wh

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en the learned counsel submitted that the appellant's interest has been seriously affected and thereby that order needed to be vacated, it is the duty of the appellant to assist the court, itis not understandable as to how and on what basis, the court can take a contrary view to vacate the order. This kind of approach and stand by the defendant is deplorable. 12. The Supreme Court in A. Venkatasubbaiah (supra) has held that the defendant gets a right of appeal if the application is not decided within 30 days. Certainly, that right is always available only when he is ready to argue by putting forth his defense. In the unreported decisions of this court cited by appellant's counsel, a situation as appears in this case is not discussed. 13. Very interestingly, the respondent's counsel says no objection for allowing the appeal. Appeal or any other cases cannot be allowed on concession shown by the respondent's counsel. Hence, the discussion is concluded by holding that the appeal is devoid of merits. Appeal is dismissed with costs.
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