HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF OCTOBER, 2026 BEFORE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 626 OF 2024 (GM-CPC) BETWEEN: 1. NARAYANAPPA S/O MUNISHAMAPPA, AGED ABOUT 64 YEARS, RESIDING AT: KANNAMANGALA PALYA, KANNAMANGALA POST, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562 110. 2. NAGAVENI W/O NARAYANAPPA, AGED ABOUT 56 YEARS, RESIDING AT: KANNAMANGALA PALYA, KANNAMANGALA POST, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562 110. …PETITIONERS (BY SRI. KESHAVA BHAT.A., ADVOCATE) AND: 1. KRISHNAPPA S/O MUNISHAMAPPA, AGED ABOUT 60 YEARS, RESIDING AT: KANNAMANGALA PALYA, KANNAMANGALA POST, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562 110. 2. MRS. KUSUMASHREE W/O KRISHNAPPA, AGED ABOUT 48 YEARS, Digitally signed by SUMATHY KANNAN Location: HIGH COURT OF KARNATAKA HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 2 RESIDING AT: KANNAMANGALA PALYA, KANNAMANGALA POST, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562 110. …RESPONDENTS (BY SRI. CHANDRASHEKAR SWAMY.K.B., ADVOCATE FOR R-1 & R-2 (ABSENT)) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO OS.NO.7/24 FROM THE FILE OF THE CIVIL JUDGE AND JMFC AT DEVANAHALLI, BENGALURU RURAL DISTRICT AND ON PERUSAL OF THE SAME; (I)ISSUE A WRIT OF CERTIORARI, OR ANY APPROPRIATE WRIT, ORDER OR DIRECTION SETTING ASIDE THE ORDER OF THE CIVIL JUDGE AND JMFC AT DEVANAHALLI, BENGALURU RURAL DISTRICT DATED:03.01.2024 ON IA NO.1/2024 IN OS.NO.7/2024 VIDE ANNEXURE A. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The challenge in the present petition is to an order dated 03.01.2024 passed by the learned Civil Judge and JMFC at Devanahalli, Bengaluru Rural District in O.S.No.7/2024 (hereinafter referred to as the Impugned order). By the impugned order, an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 3 thereinafter referred to as the ‘CPC’ was not considered and notice was issued in the matter. 2. This Court had, by its order dated 05.01.2024, directed the parties to maintain status quo in relation to the suit schedule property until the next date of hearing. That order has continued till today. 3. Concededly, the order under challenge is an appealable order under Order XLIII Rule 1(r) of the CPC. Order XLIII Rule 1(r) is reproduced below: "Order XLIII Rule 1. Appeal from orders—An appeal shall lie from the following orders under the provisions of section 104, namely xxxx xxxx (r) an order under rule 1, rule 2, [rule 2A], rule 4 or rule 10 of Order XXXIX." [Emphasis Supplied] 4. The issue whether such an order is appealable is no longer res integra. The Supreme Court in the case of A. Venkatasubbaih Naidu Vs. S. Chellappan and others1 has held that the power to grant an ex-parte injunction is 1 (2000) 7 SCC 695 HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 4 derived from Order XXXIX Rule 1 of the CPC, since Order XLIII Rule 1(r) of the CPC makes an order under this rule appealable, the choice of remedy which lies with the parties is that they can either move the Trial Court to vacate the order under Order XXXIX Rule 4 or file an appeal under Order XLIII Rule 1(r) of the CPC. The Court further held that the statute does not distinguish between ex-parte and final orders in exercise of the provisions under Order XXXIX Rules 1 and 2 of the CPC and thus the disposing of an application under Order XXXIX of the CPC would be amenable to such challenge. The relevant extract of this judgment is set out below: “6. The first respondent, on behalf of himself and Respondents 2 to 5, filed a revision petition invoking Article 227 of the Constitution before the High Court of Madras alleging that they purchased the property from the owners thereof as per different sale documents executed on 15-3-1996, and they were in possession and enjoyment of the property. They further alleged that one Ranganathan, MLA and one Hithayatullah together expressed a wish to purchase the property from the respondents, but it was not agreed to and then those two persons exerted threat and pressure on them to capitulate to their demand. As they did not yield to such threats a suit was filed in 1998 by some parties who are now supporting the present plaintiff. The respondents further alleged that the said suit was filed at the instance and instigation of those two named persons. When they failed to get any relief there from another suit HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 5 was caused to be filed through one M. Devasinghamani on the strength of some concocted documents. As no relief was obtained in that suit also the present suit, which is the third one in the series, has been filed at the behest of the above-named persons, according to the respondents. 7. Learned Single Judge of the High Court of Madras who disposed of the revision made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3-A of the Code, according to the learned Single Judge. He, therefore, set aside the injunction order “for the clear transgression of the provisions of law” and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Though learned Single Judge further declined to go into the other allegations, he has chosen to make the following observations also: “However, prima facie, I am satisfied that these materials are relevant for consideration before granting ad interim injunction. As per the plaint and affidavit averments I admit that the first respondent is occupying a vacant portion of 1670 sq ft and running paper business and charcoal. But there is no document to show that the first respondent is actually in possession and running such a business except the lease deed. Hence the ex parte order is unsustainable. For all these reasons, I am of the view that the order passed by the learned Judge is liable to be set aside and it is accordingly set aside.” 8. After holding thus, learned Single Judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously.” [Emphasis Supplied] HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 6 5. A similar view has been taken by the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others2 and Mohamed Ali Vs. V.Jaya and Ors.3 wherein it has been held that, where a petition under Article 227 of the Constitution of India was filed challenging such an order held that the petition is not maintainable. The relevant extract of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai’s Case is below: “11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan,4], this Court held that “though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy”. 2 (2019) 9 SCC 538 3 (2022) 10 SCC 477 4(2000) 7 SCC 695 HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 7 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi- judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai5, pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath6, that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” [Emphasis Supplied] 5 (2003) 6 SCC 675 6(2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67 HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 8 6. In the present case, the only grievance of the petitioners is that the learned Trial Court did not pass an order on the application under Order XXXIX Rules 1 and 2 of CPC. Given the settled legal position in this behalf, in the event that the petitioners have any grievance against such an order on an application under Order XXXIX Rules 1 and 2 of CPC, they would have to take appropriate steps as per law. 7. None appears for the respondents despite service and the matter being called out twice, given the pendency of the matter and the fact that this petition is not maintainable before this Court, the learned counsel for the petitioners submits that they may be permitted to withdraw the petition and take appropriate steps before the Appellate Court. 8. In view thereof, the petition is disposed of, granting liberty to the petitioners to take appropriate steps in accordance with law, if they so choose. All pending applications stand closed. HC-KAR CNR: KAHC010012892024 NC: 2026:KHC:54687 WP No. 626 of 2024 9 9. It is clarified that this Court has not examined the matter on merits. The rights and contentions of both parties are kept open to be agitated before the Trial Court. 10. The interim order granted by this Court on 05.01.2024 shall remain in operation for the next two weeks, permitting the petitioners to take appropriate steps. Sd/- (TARA VITASTA GANJU) JUDGE AM/List No.: 1 Sl No.: 30 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNATAKA