- 1 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 35307 OF 2025 (GM-CPC) BETWEEN: 1. SRI.VASUDEVA M G S/O M V GOVINDEGOWDA, AGED ABOUT 72 YEARS, R/O BELAGOLA VILLAGE, BELAGOLA HOBLI, SHRIRANGAPATNA TALUKU, MANDYA DISTRICT - 571606 …PETITIONER (BY SRI. RUDRAPPA P., ADVOCATE) AND: 1. SRI KALEGOWDA S/O LATE VENKATARAMANEGOWDA, AGED ABOUT 73 YEARS, R/AT MANUGANAHALLI VILLAGE, BILIKERE HOBLI, HUNSUR TALUKU, MYSURU DISTRICT - 571103 2. SRI CHANDREGOWDA, D/O LATE VENKATARAMANEGOWDA, AGED ABOUT 68 YEARS, R/AT CHANDAGALU VILLAGE, HEBBALU HOBLI, KR NAGARA TALUKU, MYSURU DISTRICT - 571 602 …RESPONDENTS Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE ADDL CIVIL JUDGE JMFC HUNSUR TO ALLOW THE I.A. NO.1 UNDER ORDER 39 RULE 1 AND 2 OF C.P.C FOR EX-PARTE TEMPORARY INJUNCTION IN O.S.NO. 405/2025 ON PRODUCED AT ANNX-B AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR ORAL ORDER Heard learned counsel for the petitioner. 2. Petitioner is the plaintiff and the respondents are the defendants before the trial Court in OS No.405/2025. 3. Parties shall be referred to as per the status before the trial Court as plaintiff and defendants. 4. Suit came to be filed by the plaintiff for permanent injunction against the defendants. Along with the plaint, the plaintiff filed an application in IA No.1 - 3 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 seeking for an ad-interim order of temporary injunction against the defendants, their agents, servants, representatives from not to interfere with the plaintiffs' peaceful possession with respect to the suit schedule property. 5. Upon hearing the plaintiff, prior to issuance of notice, as the plaintiff insisted for an ad-interim order of temporary injunction, the trial Court issued emergent notice on IA and suit summons but did not grant the ad- interim order of temporary injunction against which the plaintiff is before this Court. 6. It is submitted that the notice to defendants is not yet served. This Court is not inclined to issue notice to the respondents/defendants for the reason that before the trial Court they were not served and the application under Order XXXIX Rule I and II read with Section 151 of CPC is for ad- interim order of temporary injunction prior to - 4 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 issuance of notice to the defendants. Hence, the notice is not ordered by this Court. 7. The short point for consideration before this Court is: 1. Whether this Court needs to interfere in the impugned order passed by the trial Court for non-passing of the order on grant of ad-interim temporary injunction on the application filed under Order XXXIX Rule 1 and Rule 2 read with Section 151 of CPC? 2. If so, what order? 8. While considering an application under Order XXXIX Rule 1 and Rule 2 read with Section 151 of CPC, the following is to be followed. 9. When an application is filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, it is the duty and obligation of the trial Court to consider the documents placed by the plaintiff before it, either along with the plaint or the averments made in the affidavit annexed to the - 5 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 application or any material that is produced along with the plaint to prima facie satisfy itself with regard to grant or non-grant of an ad- interim order of temporary injunction. The provisions under Order XXXIX Rule 1 and 2 is for grant of an ad-interim temporary injunction, which specifically states under what circumstances such an injunction could be granted. 10. It is needless to mention that the trial Court is required to see that if the suit schedule property is in danger of being wasted, damaged, alienated or wrongfully sold in execution or defendants threatens or intends to remove or dispose of the property, or there is any threat to dispose the property of the plaintiff or otherwise cause injury to the plaintiff in relation to the suit schedule property. Then the court may issue notice to the defendants and, upon appearance of the defendants, consider and pass suitable orders. - 6 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 11. The proviso to Order XXXIX Rule 3 provides that the Court has the option of either issuing notice or, in exceptional and extraordinary circumstances where the Court finds that an ad -interim order of temporary injunction is required to be granted prior to issuance of notice on the ground of urgency made out and that the delay in issuance of notice would cause hardship and inconvenience and threat and possibility of dispossession to the plaintiff with regard to the suit schedule property or any damage to the suit schedule property or to the plaintiff, the Court may grant an ad-interim order of temporary injunction prior to issuance of notice. Therefore, the proviso to Order XXXIX Rule 3 provides this extraordinary relief that could be granted prior to issuance of notice in exceptional circumstances if made out by the plaintiff. 12. In the present case on hand, the trial Court has not adverted to any of these required ingredients in its impugned order. It has merely said, "Perused the plaint, - 7 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 IA and the documents on record. The documents produced by the plaintiff has semblance of ownership of the defendants over the suit schedule property. Hence, no prima-facie case is made to grant exparte temporary injunction." It is relevant to mention that this Court has been seeing time and again several orders passed by the trial Court in this manner where it is simply said that the materials are perused, and without hearing the other side, it may not be proper to pass ex-parte order on the application and issues emergent notice to the defendants along with suit summons. This may not be the proper procedure to be followed by the trial Court when an application is filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC. The trial Court is obligated and is duty bound to consider the application and the materials placed before it for either grant or rejection of the ad- interim ex-parte order. 13. If the trial Court is not inclined to grant an ad- interim ex-parte temporary injunction without issuance of - 8 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 notice to the defendants, the trial Court is duty bound to provide necessary reasoning to that effect and say so in its order rather than merely saying "issue notice and it cannot be decided prior to hearing the other side". This option is not available to the trial Court. 14. The trial Court would have to invariably advert to the contentions of the plaintiff, it may either allow it or reject it, but reasoning would have to be provided by the trial Court. The Hon'ble Apex Court in the case of Shiv Kumar Chadha -vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161 and in the case of Time City Infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online SC 1674 has held as to how the trial Court should deal with such applications. 15. It is relevant to extract the observation at paragraph Nos.32, 33, 34 and 35 of the judgment of the Hon'ble Apex Court in the case of Shiv Kumar Chadha - - 9 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161: "32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite-party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that “where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay…”. 33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot - 10 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. 34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “the court shall in all cases, 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”. The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same - 11 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJ Ch 373] and Nazir Ahmed v. Emperor [AIR 1936 PC 253 (2) : 63 IA 372 : 37 Cri LJ 897] . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare [(1975) 1 SCC 559 : AIR 1975 SC 915] . 35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying: - 12 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 “Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion…. An ex parte injunction should generally be until a certain day, usually the next motion day….” 16. In the case of Time City infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online SC 1674, the Hon'ble Supreme Court held at paragraph 5 as under: 5. Looking to the scheme of Order 39, CPC it is clear that ordinarily an order of injunction may not be granted ex parte. The opposite party must be issued a notice and heard before an injunction may be granted. Rule 3 carves out an exception in favour of granting an injunction without notice to the opposite party where it appears that the object of granting injunction would be defeated by the delay. Conferment of this privilege on the party seeking an injunction is accompanied by an obligation cast on the court to record reasons for its opinion and an obligation cast on the applicant to comply with the requirements of Clauses (a) and (b) of the proviso. Both the provisions are mandatory. The applicant gets an injunction without - 13 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 notice but subject to the condition of complying with Clauses (a) and (b) above said. 17. Therefore, it is a duty cast upon the trial Court while dealing with the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to dispose of the application on the merits of it. But nevertheless, it would have to opine and provide proper reasoning. Of course, it is not required for the trial Court to conduct a mini trial while granting or rejecting the application for the grant of an ad-interim ex-parte injunction. Nevertheless, the trial Court would have to provide reasoning either way, whether it allows or rejects the application for grant of an ad-interim temporary injunction or non grant of an ad-interim temporary injunction. Under the circumstances in the present case, it is seen that the trial Court has not discussed any averments or the contentions of the plaintiff while passing the impugned order, except for merely issuing notice to the defendants by saying no prima facie case is made out. - 14 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 Under the circumstances, the impugned order is not sustainable and not in accordance with law. ORDER The petition is disposed of. 2. Matter is remitted to the trial Court to consider the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC for grant of an ad-interim temporary injunction as defendant is yet to be served, in accordance to the judgment of the Hon'ble Apex Court in the case of Shiv Kumar Chadha -vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161 and in the case of Time City Infrastructure and Housing Limited Lucknow V/s State of U.P. and others reported in 2025 SCC Online SC 1674 and pass suitable orders in accordance with law. 3. In case the defendants appears on the next date of hearing, if any objection filed shall be taken and - 15 - HC-KAR NC: 2025:KHC:48717 WP No. 35307 of 2025 the suitable order shall be passed by the trial Court within a period of 15 days on the date of receipt of copy of this order. 4. It is needless to mention that this Court has not expressed any opinion on the merits of the application. 5. Petitioner/plaintiff is permitted to advance the matter, if the respondents/defendants are yet to come on record, then urge grounds for grant of an ad-interim order; if the defendants are served and represented, the trial Court shall dispose of the application expeditiously within 15 days' time from the date of receipt of copy of this order. 6. Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE RCK List No.: 1 Sl No.: 13