IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH 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 2^ND 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

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:

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 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

MFA NO.3837/2018(CPC) order dated 21.12.2018

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 applic