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Karnataka High Court
Nova Granites (India) Ltd., Bangalore - Appellant
Versus
Coach Kraft (Bangalore) Private Limited - Respondent
Decided On : 12-01-93
C.R.P. : 3023 of 1993
CIVIL REVISION PETITION - Temporary Injunction - Order 5, Rule 17, CPC - The court held that a notice of application for interim order should be served on the lawyer when a caveat is filed through a lawyer and when the address for service is given as his address. The failure to serve the notice on him will not by itself render the order null and void, if the notice is in fact served on the party on that count in the facts and circumstances of a particular case. However, it is the duty of the court to see that the notice of such an application should be served to the advocate for Caveator as long as that caveat petition is alive. The court also set aside the order dated 21-10-1993 passed by the learned additional City Civil Judge in O. S. No. 5406 of 1993 on LA. No. I, remitting the matter back to the lower court for fresh disposal of the application for temporary injunction according to law after giving an opportunity to the defendants to put in their objections if any and after hearing them.
Fact of the Case:
The plaintiff filed a suit for a decree for perpetual injunction restraining the defendants from interfering with plaintiff's possession and enjoyment of the property. The plaintiff also filed an application for temporary injunction. The defendants were treated ex parte and the court issued temporary injunction after holding that the defendants were treated ex parte.
Finding of the Court:
The court found that the notice of application for interim order should be served on the lawyer when a caveat is filed through a lawyer and when the address for service is given as his address. The failure to serve the notice on him will not by itself render the order null and void, if the notice is in fact served on the party on that count in the facts and circumstances of a particular case. However, it is the duty of the court to see that the notice of such an application should be served to the advocate for Caveator as long as that caveat petition is alive. The court also set aside the order for temporary injunction and remitted the matter back to the lower court for fresh disposal of the application for temporary injunction according to law after giving an opportunity to the defendants to put in their objections if any and after hearing them.
Issues: 1. Whether the notice of application for interim order should be served on the lawyer when a caveat is filed through a lawyer and when the address for service is given as his address? 2. Whether the order for temporary injunction is sustainable?
Ratio Decidendi: The court held that the notice of application for interim order should be served on the lawyer when a caveat is filed through a lawyer and when the address for service is given as his address. The failure to serve the notice on him will not by itself render the order null and void, if the notice is in fact served on the party on that count in the facts and circumstances of a particular case. However, it is the duty of the court to see that the notice of such an application should be served to the advocate for Caveator as long as that caveat petition is alive. The court also set aside the order for temporary injunction and remitted the matter back to the lower court for fresh disposal of the application for temporary injunction according to law after giving an opportunity to the defendants to put in their objections if any and after hearing them.
Final Decision: The court allowed the appeal, treating the revision petition as a miscellaneous first appeal, and set aside the order for temporary injunction, remitting the matter back to the lower court for fresh disposal of the application for temporary injunction according to law after giving an opportunity to the defendants to put in their objections if any and after hearing them.
( 1 ) THIS civil revision petition is preferred against the order dated 21-10-1993 passed by the Additional City Civil Judge on la. 1 in Original Suit No. 5406 of 1993. By the said order, the learned Judge has issued temporary injunction after treating the defendants ex parte on acceptance of the endorsement of the process server that the summons and notice were refused by both the defendants. The learned single Judge of this court before whom the revision came up for admission has referred this matter to the Division Bench since according to him, the procedure relating to the issue of notice of application for an interim order when a caveat petition is filed and the maintainability of a revision petition against an interim order without notice to the lawyer representing the caveator are required to be thrashed out once for all by the Division Bench.
( 2 ) THE facts relevant for the disposal of this petition brieflystated are as under: plaintiff-respondent-1 filed a suit at Original Suit No. 5406 of 1993 before the lower court against the petitioner and another (respondent-2 since deleted) praying for a decree for perpetual injunction restraining them from interfering with plaintiffs possession and enjoyment of the property. In the said suit, the plaintiff also filed an application at LA. I under Order 3-9, Rules 1 and 2 read with 151, CPC praying for temporary injunction. It appears that the instant petitioner had filed a caveat petition under Section 148-A of CPC praying that the court be pleased to issue notice of any application that may be filed by the respondents either jointly or severally against the petitioner (instant petitioner) before any interim orders were passed thereon. The learned trial Judge by an order dated 8-10-1993 directed issue of notice on LA. I and sent summons under emergent process.
( 3 ) THE suit summons and the notice were returned by theserving Officer as 'refused'.
( 4 ) THE learned Judge by an order dated 21-10-1993 issuedtemporary injunction after holding that the defendants were treated ex parte. It is also stated therein that he has heard the counsel for the plaintiff and perused LA. I and the affidavit. The matter was posted thereafter to ex parte evidence on 24-11-1993. Being aggrieved by the order of injunction, the petitioner has preferred this revision.
( 5 ) WE have heard the arguments of the learned counsel Sriudaya Holla and Sri Shekar Shetty appearing on either side.
( 6 ) IN the context of the submissions made at the Bar, thefollowing points arise for consideration: (1) Whether a civil revision petition against the impugned order is maintainable and if not whether the same can be treated as an appeal under Order 43 (l) (r), CPC? (2) Whether the lower court has erred in issuing notice of la. I to the defendant instead of sending notice to the advocate for the caveator whose address was given in the caveat petition? (3) Whether the order under revision is bad on any other grounds? (4) What Order?
( 7 ) POINTS 1 and 2: Since Points 1 and 2 are inter-linked, theyare taken up together for discussion.
( 8 ) IT is noticed that a caveat Petition No. 3600 of 1993 waslodged in the lower court on 10-8-1993. There is no dispute about this aspect. The same is also recorded in the order-sheet dated 4-9-1993. Further it is noticed that the caveator had pasted two postal receipts to evidence the factum of having sent the registered notice.
( 9 ) SRI Shekar Shetty, the learned counsel appearing for therespondents submitted with reference to Section 148-A that the caveat petition contains a wrong address of the plaintiff- respondent. In fact he juxtaposed the address reflected in the plaint and the caveat petition and submitted to the court that the caveat petitioner was misleading every one by giving a wrong address of the plaintiff in the Caveat petition. Further, according to Sri Shekar Shetty, there is also no proof as regards the service of the notice by the caveator. In this c
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