- 1 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 21137 OF 2021 (GM-CPC) BETWEEN: SRI BHARATH KUMAR AGED ABOUT 55 YEARS OLD S/O SRI G CHINNASWAMY NAIDU R/AT AT NO.62 2ND CROSS KALYANI NAGAR VASANTHAPURA BANGALORE-560061. …PETITIONER (BY SRI. A. MAHESH CHOWDHARY, ADVOCATE) AND: 1. SRI MUNIVENKATAPPA S/O LATE M THIMMAIAH AGED ABOUT 57 YEARS 2. SANGEETHA M D/O MUNIVENKATAPPA AGED ABOUT 31 YEARS OLD 3. SOUMYA D/O MUNIVENKATAPPA AGED ABOUT 30 YEARS OLD - 2 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 4. RAJANNA S/O MUNIVENKATAPPA AGED ABOUT 27 YEARS OLD R1 TO R4 ARE R/AT DODDAKALASANDRA VILLAGE KANAKAPURA ROAD GANESHANABEDHI ROAD UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 001 5. SMT NAGAMMA W/O MUNIVENKATAPPA AGED ABOUT 51 YEARS 6. SMT SHANTHAKUMARI D/O MUNIVENKATAPPA AGED ABOUT 39 YEARS OLD R5 AND R6 ARE R/AT TAGACHAGUPPE VILLAGE KUMBALAGUDU, KENGERI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 074 …RESPONDENTS (R5 AND R6 ARE SERVED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH OR SET ASIDE THE IMPUGNED ORDER DATED 10.11.2021 PASSED BY THE HON'BLE TRIAL COURT IN O.S.NO.4803/2021 VIDE ANNEXURE-A AS IT IS ARBITRARY AND ILLEGAL ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The challenge in this petition is to an order dated 10.11.2021 in O.S.No.4803/2021 passed by the Court of the XVI Addl. City Civil & Sessions Judge, Bengaluru (hereinafter referred to as the "Impugned Order"). By the Impugned Order, the learned Trial Court has directed that emergent notice be issued by way of summons and has declined to grant an ex parte interim injunction. 2. This Court had by its order dated 06.12.2021 has granted an interim stay restraining the respondents from alienating or creating third party rights in the subject property till the next date of hearing. 3. The report of the Registry indicates that respondent Nos.1 to 4 have refused service. Thus, they are deemed to have been served. 4. On a question of maintainability of this petition, learned counsel for the petitioner has made the following submissions; (i) That the Division Bench of this Court has held that an appeal is not maintainable, however under Order XLIII Rule 1 of - 4 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 the CPC and thus this petition under Article 227 of the Constitution of India is maintainable; and (ii) Learned counsel for the petitioner has also relied upon two judgments of Co-ordinate Benches stating that the Division Bench judgment was followed in these two judgments and thus the petition under Article 227 of the Constitution of India filed by the petitioner is maintainable. Reliance is placed on the following judgments: (i) M/s Parijatha & Another v. Kamalaksha Nayak and others1 (ii) Procter & Gamble Home Products Private Limited v. Marico Limited and others2 (iii) R Ravindranath Manvi v. K.B. Ramesh3 5. The Division Bench of this Court has in its judgment of M/s Parijatha case while deciding the issue of preliminary objection as to maintainability of an appeal from an ex parte injunction under Rule 1 or Rule 2 of Order XXXIX of CPC has held that the appeal would not be maintainable against an exparte order and that the remedy of the litigant would be to 1 ILR 1981 Kar 1433 (DB) 2 MFA No.8990/2017 (CPC) order dated 30.11.2017 3 MFA NO.3837/2018(CPC) order dated 21.12.2018 - 5 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 file an application under Rule 4 of Order XXXIX of the CPC in the first instance. It is apposite to extract the relevant part of the Division Bench order below: "15. For the forgoing reasons, we hold that order 43 Rule 1(r) of the Code does not allow the filing of an appeal from an exparte interim order of temporary injunction granted under Rule 1 or 2 of order 39, but the remedy of the aggrieved person is to move the trial court under Rule 4 of order 39 of the code in the first instance. We further hold that even a stranger to the suit or proceeding can maintain such an application. We hereby over-rule the decisions of single judges taking a view in favour of the permissibility of an appeal against an interim exparte order of temporary injunction, to wit, Keshavchand Gopalchand Gujjar v. Ningappa Pandappa Kolakar [1969 (2) Mys. Law Journal 525.] , Bhima Ningappa Khot v. Ratnabai [ C.R.P. No. 3056 of 1978/6 d. d. 6-2-1979.] , and Mahila Samaja v. Smt. Varija Aithal [ C.R.P. 2705/78 d. d. 5-2- 1980.]." [Emphasis Supplied] 6. A Co-ordinate bench of this Court while relying on the Parijatha case have also given similarly findings in Procter & Gamble case and in the matter captioned R Ravindranath Manvi Vs. KB Ramesh. 7. The issue whether such an order is appealable is no longer res integra. The Supreme Court in the case of A. - 6 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 Venkatasubbaih Naidu Vs. S. Chellappan and others4 has held that the power to grant an ex-parte injunction is derived from Order XXXIX Rule 1 of the Code of Civil Procedure, 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 is 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 4 (2000) 7 SCC 695 - 7 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 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 therefrom another suit 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. - 8 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 9. Shri Sivasubramaniam, learned Senior Counsel contended that the High Court should not have entertained a petition under Article 227 of the Constitution when the respondent had two remedies statutorily available to him. First is that the respondent could have approached the trial court for vacating, if not for any modification, of the interim ex parte order passed. Second is that an appeal could have been preferred by him against the said order. It is open to the respondent to opt either of the two remedies, contended the Senior Counsel. 10. Section 104 of the Code says that: “104. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: *** (i) any order made under rules from which an appeal is expressly allowed by rules:” 11. Order 43 Rule 1 says that: “1. An appeal shall lie from the following orders under the provisions of Section 104, namely— *** (r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX;” 12. Order 39 Rule 1 says thus: “1. Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, - 9 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.” 13. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said Rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.” [Emphasis Supplied] 8. A similar view has been taken by the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabi and others Vs. Tuticorin Educational Society and others5 and Mohamed Ali Vs. V.Jaya and Ors.6 which has specifically stated 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 5 (2019) 9 SCC 538 6 (2022) 10 SCC 477 - 10 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 Virudhunagar Hindu Nadargal Dharma Paribalana Sabi’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,7], 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”. 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 7 (2000) 7 SCC 695 - 11 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai8, pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath9, 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] 9. Concededly, the petitioner, instead of availing the statutory remedy available to him, has chosen to file a petition under Article 227 of the Constitution of India. Given the settled position of the law as is reproduced above, this Court is unable to agree with the contentions of the Petitioner that a petition under Article 227 is maintainable to challenge the Impugned Order. 10. However, and on a query put to the petitioner as to whether the application under Order XXXIX Rule 1 and Rule 2 8 (2003) 6 SCC 675 9 (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67 - 12 - HC-KAR NC: 2026:KHC:802 WP No. 21137 of 2021 of the CPC has finally been decided, the answer is in negative. Thus, the petition is disposed of directing the Trial Court to finally adjudicate the application under Order XXXIX Rules 1 and 2 of the CPC within a period of four weeks from today. The order passed by this Court on 06.12.2021 shall be valid for a period of four weeks. 11. The petition is disposed of in the foregoing terms. All pending applications stand closed. (TARA VITASTA GANJU) JUDGE GH List No.: 1 Sl No.: 13 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA