Sri Suresh Babu J N v. Sri Jagan Mohan

Order XXXIX CPC..

¶22For the foregoing, it is held that the exercise of discretion by the Civil Court under Order XXXIX Rule 3 of CPC not to grant injunction without first issuing Notice to the opposite party would be an 'Order' as contemplated under Section 2(14) of the

CPC, but no appeal will lie against such Order under Order XLIII Rule 1(r) of CPC."

¶14It would be relevant to extract Order XLIII Rule 1

(r), which reads as under: "(r) an order under rule 1,rule 2 [rule2A], rule 4 and rule 10 of Order XXXIX."

¶15It is also relevant to extract the provisions of Order XXXIX Rule 3, which reads as under: "3. Before granting injunction, Court to direct notice to opposite party.- The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

¶16Further, it is relevant to extract paragraph Nos.20 and 21 of A.Venkatasubbaiah Naidu's case (supra), which reads as under: "20. What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory

obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

¶21It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed

on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."

(Underlines in this paragraph is made by this Court)

¶17Having perused the judgments herein stated above, it is seen that when an application is filed under Order XXXIX Rule 1 and 2 of CPC, the trial Court has the following options:

(i) The first option for the Court is to issue notice under Order XXXIX Rule 3 to hear the defendant before passing any order; and

(ii) The second option would be granting an ex-parte ad-interim temporary injunction before issuance of notice to the defendant, where it feels that any delay in issuance of notice will cause hardship, inconvenience to the party and such issuance of notice would defeat the very purpose of grant of injunction as contemplated in the proviso to Rule 3 of Order XXXIX.

These are the two options available to the learned trial Judge while an application is filed and where an order is sought for grant of an ad-interim ex-parte injunction.

¶18In the present case on hand, the learned trial Judge has exercised the discretion to issue notice, but at the same time has neither rejected nor granted the temporary injunction. Therefore, the trial Court, by holding that before passing any orders on the said application it would be appropriate to hear both parties, has issued notice on the said applications and hence, it has kept the applications alive and pending.

¶19On bare perusal of the provisions of Order XLIII Rule 1 (r) as extracted herein above, it is crystal clear as to what are the provisions that would attract Order XLIII Rule 1 for an appeal to be maintainable. As can be seen, it is apparently clear and there is no ambiguity that Order XXXIX Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX is contemplated under Order XLIII Rule 1.

¶20Conspicuously, Rule 3 of Order XXXIX is not spelled out and it is evidently not available for an appeal remedy under Order XLIII Rule 1. The Legislature in its wisdom has clearly provided the necessary provisions to attract the relevant appeal or remedy that is available to be challenged before the appropriate forum.

¶21In the present case, when there is a clear remedy available under the Code of Civil Procedure as to what orders could be challenged under the appeal and what cannot be, it is not for this Court to get into the mind of the legislature to infringe into the legislature's forte. Therefore, it would not be appropriate for this Court to infringe into the wisdom of the legislature which conspicuously has not included Rule 3 of Order XXXIX in the appeal provisions provided under Order XLIII Rule 1 (r). Precisely for this reason, the Delhi High Court in its judgment has clearly held that once an order is passed either granting or refusing with any reasons, then certainly an appeal would be maintainable under Order XLIII Rule 1 (r) and when an order is passed merely by issuance of notice to the opposite party, without there being any order of either grant or rejection, then it is merely an order passed for issuance of notice to hear the defendants before passing any order, which apparently means no order is yet passed on the said application.

¶22It is also to be seen that the Code of Civil Procedure contains its own remedies available in it for any order if passed

without grant of relief. The remedy available to the plaintiff would be to either seek for urgent orders on the said application or any other remedy that is available in law. But it can be certainly said that no remedy is available for preferring an appeal under Order XLIII Rule 1. Therefore, I am in agreement with the contentions put forth by learned counsel for respondent No.3 and the judgments relied by him, which are mentioned hereinabove to come to a conclusion that in the present case on hand, there is no order as such either granting or refusing of the ad-interim order sought by the appellants-plaintiffs.

¶23I do not agree with the argument put forth by learned counsel for the appellants that on the impugned order, they can approach this Court in an appeal under Order XLIII Rule 1 (r). Therefore, it will not be available for the appellants-plaintiffs to approach this Court when there is no order passed either granting or rejecting the application filed by him under Order XXXIX Rule 1 and 2.

¶24The judgments relied by the learned counsel for appellants are not applicable and helpful to the present facts of this case.

¶25Under the circumstances, I pass the following: ORDER

i) The appeals are dismissed as not maintainable.

ii) However, liberty is reserved to appellants-plaintiffs to either approach the very same Court or to file any other appropriate proceedings, if so advised, in the appropriate forum.

iii) Liberty is also reserved to appellants-plaintiffs to move the Civil Court for early hearing and if any such application is moved, the learned trial Judge shall consider the same and pass suitable orders on the application within 15 days of such motion made by appellants-plaintiffs.

iv) Observation made herein are only for the purpose of deciding the maintainability of these appeals.

v) It is made clear that this Court has not expressed any opinion on the merits of the matter.

Ordered accordingly.

Sd/- (PRADEEP SINGH YERUR) JUDGE

VM List No.: 1 Sl No.: 16

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 3477 OF 2026 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO. 3478 OF 2026 MISCELLANEOUS FIRST APPEAL NO. 3479 OF 2026 MISCELLANEOUS FIRST APPEAL NO. 3480 OF 2026 IN MFA No. 3477/2026 BETWEEN: SRI SURESH BABU J N S/O LATE NAGABHUSHANAM P S AGED ABOUT 52 YEARS R/AT NO.41, GROUND FLOOR SEVENTH CROSS, S R NAGAR SAMPANGI RAMNAGAR WILSON GARDEN BENGALURU - 560 027 …APPELLANT (BY SRI THANUSH MANCHIL M., FOR SRI. AKKIMANJUNATH GOWDA K., ADVOCATES) AND: 1. SRI JAGANMOHAN S/O LATE RAM REDDY AGED ABOUT 61 YEARS 2. SMT.HEMALATHA W/O SRI.JAGANMOHAN AGED ABOUT 58 YEARS R by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA RESPONDENT NOS 1 & 2 ARE R/AT NO.15, FIRST MAIN, TATA SILK FARM BASAVANAGUDI BENGALURU 560 004 3. SRI.T S SANKEERTH S/O SRI.T M SHIVARAM AGED ABOUT 34 YEARS R/AT NO. 117, THIRD MAIN SIXTH BLOCK, BSK THIRD STAGE THIRD PHASE BENGALURU - 560 085 4. SIR M VISVESVARAYA CO-OPERATIVE BANK LTD NO 109, SHANKARPURAM SHANKARMUTT ROAD BENGALURU - 560 004 REP.BY ITS BRANCH MANAGER SRI. RAGHAVENDRA RAO K S 5. THE BHAVANI HOUSING CO-OPERATIVE SOCIETY LTD.. NO 239, UPSTAIRS, BULL TEMPLE ROAD, CHAMRAJPET BENGALURU - 560 018 REP. BY ITS SECRETARY …RESPONDENTS (BY SRI.N.S.SRIRAJ GOWDA ., ADVOCATE FOR R-3; NOTICE TO R1 & R2 IS HELD SUFFICIENT V.O.D 25.6.2026; NOTICE SERVED TO R-4) THIS MFA IS FILED U/S.43 RULE 1(R) OF THE CPC, AGAINST THE ORDER DT. 25.04.2026 PASSED ON IA NO. 2 IN O.S.NO. 2944/2026 ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL JUDGE, CCH-31 BENGALURU, ISSUING NOTICE ON IA.NO. FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908. IN MFA NO. 3478/2026 BETWEEN: 1. SMT.B.RAJESHWARI W/O LATE B RAMA MOHAN AGED ABOUT 77 YEARS 2. SRI.B RAGHAVENDRA KUMAR S/O LATE B RAMA MOHAN AGED ABOUT 51 YEARS 3. SRI.B RAVINDRA KUMAR S/O LATE B RAMA MOHAN AGED ABOUT 49 YEARS PETITIONER NO.1 TO 3 ARE R/AT NO.22/29, MGK MURTHY LAYOUT GAVIPURAM EXTENTION BASAVANAGUDI BENGALURU - 560 019 4. SRI.B RAJENDRA KUMAR S/O LATE B RAMA MOHAN AGED ABOUT 53 YEARS R/AT NO.48, TWELFTH MAIN J C NAGAR, KURUBARAHALLI, MAHALAKSHMIPURAM LAYOUT, BENGALURU - 560 086 ...APPELLANTS (BY SRI THANUSH MANCHIL M., FOR SRI. AKKIMANJUNATH GOWDA K., ADVOCATES) AND: 1. SRI JAGANMOHAN S/O LATE RAM REDDY AGED ABOUT 61 YEARS 2. SMT.HEMALATHA W/O SRI.JAGANMOHAN AGED ABOUT 58 YEARS RESPONDENT NO.1 & 2 ARE R/AT NO.15, FIRST MAIN, TATA SILK FARM, BASAVANAGUDI BENGALURU 560 004 3. SRI.T S SANKEERTH S/O SRI.T M SHIVARAM AGED ABOUT 34 YEARS R/AT NO.117, THIRD MAIN SIXTH BLOCK, BSK THIRD STAGE THIRD PHASE BENGALURU - 560 085 4. SIR M VISVESVARAYA CO-OPERATIVE BANK LTD., NO109, SHANKARPURAM SHANKARMUTT ROAD BENGALURU - 560 004 REP. BY ITS BRANCH MANAGER SRI. RAGHAVENDRA RAO K S 5. THE BHAVANI HOUSING CO-OPERATIVE SOCIETY LTD., NO239, UPSTAIRS, BULL TEMPLE ROAD CHAMRAJPET BENGALURU - 560 018 REP. BY ITS SECRETARY ...RESPONDENTS (BY SRI.N.S.SRIRAJ GOWDA ., ADVOCATE FOR R-3; NOTICE TO R1 & R2 IS HELD SUFFICIENT V.O.D 25.6.2026; NOTICE SERVED TO R-4) THIS MFA IS FILED U/S.43 RULE 1(R) OF THE CPC, PRAYING TO SET ASIDE THE ORDER DT. 25.04.2026 PASSED ON IA NO. 2 IN O.S.NO. 2948/2026 ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL JUDGE, CCH-31 BENGALURU. IN MFA NO. 3479/2026 BETWEEN: SRI. SURESH BABU J N S/O LATE NAGABHUSHANAM PS AGED ABOUT 52 YEARS R/AT NO.41, GROUND FLOOR SEVENTH CROSS, S R NAGAR SAMPANGIRAMNAGAR, WILSON GARDEN BENGALURU - 560 027 ... APPELLANT (BY SRI THANUSH MANCHIL M., FOR SRI. AKKIMANJUNATH GOWDA K., ADVOCATES) AND: 1. SRI JAGANMOHAN S/O LATE RAM REDDY AGED ABOUT 61 YEARS 2. SMT.HEMALATHA W/O SRI.JAGANMOHAN AGED ABOUT 58 YEARS RESPONDENT NOS.1 AND 2 ARE R/AT NO.15, FIRST MAIN, TATA SILK FARM BASAVANAGUDI BENGALURU - 560 004 3. SRI.T S SANKEERTH S/O SRI.T M SHIVARAM AGED ABOUT 34 YEARS RESIDING AT NO.117, THIRD MAIN SIXTH BLOCK, BSK THIRD STAGE THIRD PHASE BENGALURU - 560 085 4. SIR M VISVESVARAYA CO-OPERATI