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Gurupadayya Nagayya Horaginamath Vs. Mahadu Arjun Nidoni and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1976Kant66; ILR1976KAR151; 1976(1)KarLJ4
ActsKarnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974 - Sections 4; Code of Civil Procedure (CPC), 1908 - Order 39, Rules 2, 4, and 9
AppellantGurupadayya Nagayya Horaginamath
RespondentMahadu Arjun Nidoni and anr.
Appellant AdvocateN.A. Mandagi, Adv.
Respondent AdvocateH.F.M. Reddy, Adv.
Excerpt:
.....strictly in accordance with the provisions of rule 3 of order xxxix of the code, the legislature would not have been driven to the necessity of making a provision like section 4 in act 31 of 1974. 6. in the instant case, the trial court was justified in making an order of temporary injunction ex parte as it has been alleged in affidavit in support of the application that the plaintiff has raised crops and if an order of temporary injunction is not granted before notice to the defendants the said crops would be damaged......a large number of disputes between land owners and persons claiming to be tenants of agricultural lands. land owners claimed that they are in possession and the alleged tenants are interfering with their possession, approached civil courts for relief of injunction. in such suits, civil courts granted ex parte orders of temporary injunction. the making of such ex parte orders of in junction against person claiming to be tenants and cultivating agricultural lands created a grave situation in the rural areas and the legislature stepped in by enacting act 31 of 1974 which, inter alia, provides that no order of temporary injunction shall be granted in respect of agricultural lands except after service of notice of the application on the defendant or defendants.if the section is understood in.....
Judgment:
ORDER

1. Sri H. F. M. Reddy took notice for the respondents at the stage of admission and submitted that the matter may be disposed of now itself. Therefore with the consent of the learned counsel on both sides, this matter is treated as set down for final disposal for this date and accordingly, it was heard.

2. The petitioner is the plaintiff and the respondents are the defendants in O. S. No. 60 of 1975 on the file of the Court of the Munsiff, Athani. The said suit is for permanent injunction restraining the defendants from interfering with the plaintiff's right to convey water to his land as per the terms of an agreement between the parties through the lands of the defendants by pumping water from the river Krishna. Before notice to the defendants, the plaintiff filed an application for temporary injunction and, on that application, the learned Munsiff, on a perusal of the application and the affidavit in support thereof as also the agreement relied upon, granted an ex parte order of temporary injunction restraining the defendants from obstructing the plaintiff in fixing an electric motor in place of an oil engine on the land of the defendants for pumping water from the river Krishna to the land the plaintiff through the lands of the defendants.

That order was apparently made under Order XXXIX, Rule 2 of Civil P. C. it is also apparent that the learned Munsiff did not consider it necessary to order notice before granting the application as Rule 3 of Order XXXIX confers discretion to the Court to make an ex parte order where it appears that the object granting an injunction would be defeated by the delay.

3. The defendants instead of filing an application for vacating the order of temporary injunction ex parte as they were entitled to under Rule 4 of O. XXXIX straightway preferred an appeal to the Court of the Civil judge, BeIgaum; the learned Civil judge (Sri V. B. Hadli) allowed the appeal and remitted the matter to the trial Court on the ground that Section 4 of the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974 (Karnataka Act No. 31 of 1974), hereinafter called 'the Act', is a bar to the making of ex parte order of temporary injunction with out notice to the defendants.

4. At the very outset, Sri H. F. M. Reddy, learned counsel for the respondents, who is always fair in making submissions, conceded that the learned Civil Judge's view that Section 4 of the Act governs, the case is wholly unsupportable and therefore, it is liable to be set aside.

5. The suit as already stated, is for prevention of breach of an agreement alleged to have been entered into between the parties. According to the plaintiff the agreement confers on him the right to installl a pump on the land of to be defendants for the purpose of pumping water from the river Krishna through the lands of the defendants to irrigate the plaintiffs land. There are no relations between the parties. The plaintiff does not claim to be the tenant of the lands of the defendants; nor does he claim that he is in possession of the defendant' lands. All that he claims is that by virtue of an agreement entered into between the parties, he has acquired the right to convey water for irrigating his land through the lands of the defendants. A suit to prevent any infringement of right of easement or any other civil right of that nature is not one to which the Act has any application.

Section 4 of the Act reads:

'4. No temporary injunction without notice:- Not withstanding anything in any law, no civil Court shall grant temporary injunction in respect of an agricultural land except after service of notice of the application for the same on the defendant'.

If the said Section is literally construed without reference to the principal Act, viz. Karnataka Land Reforms Act, 1961 and its objects, the learned Civil judge's view is correct. But it is a well known canon of construction that the Court has to look to the objects and scope of the Act and the mischief it seeks to remedy, while constructing the provisions of an Act. The Act is an amendment to the Karnataka Land Reforms Act; the preamble to the said Act states that its purpose is to enact a law in the State of Karnataka relating to agrarian relations, conferment of ownership on tenants, ceiling on land holdings, etc. Karnataka Land Reforms Act was drastically amended by Act 1 of 1974. By virtue of the said amendment, all lands in the possession of tenants stood vested in the State Government as on 1st March 1974 and the tenants became entitled to obtain registration of occupancy rights over such lands.

This gave rise to a large number of disputes between land owners and persons claiming to be tenants of agricultural lands. Land owners claimed that they are in possession and the alleged tenants are interfering with their possession, approached Civil Courts for relief of injunction. In such suits, Civil Courts granted ex parte orders of temporary injunction. The making of such ex parte orders of in junction against person claiming to be tenants and cultivating agricultural lands created a grave situation in the rural areas and the Legislature stepped in by enacting Act 31 of 1974 which, inter alia, provides that no order of temporary injunction shall be granted in respect of agricultural lands except after service of notice of the application on the defendant or defendants.

If the section is understood in the context of the mischief it intended to remedy, it is clear that it is applicable to cases where relief of injunction is claimed in disputes connected with agrarian relations and has no application to suits for enforcement of easementary rights or rights of that nature. Even before the Act was passed, the Code of Civil Procedure, by Rule 3 of Order XXXIX conferred power of granting ex parte orders of injunction, only where the Court is satisfied that the object of granting the injunction would be defeated by delay if it has to await return of notice of the application to the opposite party. The power of granting interim injunction ex parte has to be exercised with great caution the Civil Courts.

It has to be noted that the Court is making an order against a party before hearing it. The power conferred by Rule 3 order XXXIX is one of the exceptions to the rule of natural justice that no order should be made to the prejudice of a party without affording an opportunity of being heard. If the Civil Courts in the State had exercised due care and caution and acted strictly in accordance with the provisions of Rule 3 of Order XXXIX of the Code, the Legislature would not have been driven to the necessity of making a provision like Section 4 in Act 31 of 1974.

6. In the instant case, the trial Court was justified in making an order of temporary injunction ex parte as it has been alleged in affidavit in support of the application that the plaintiff has raised crops and if an order of temporary injunction is not granted before notice to the defendants the said crops would be damaged. The power conferred by Rule 3 of Order XXXIX is intended for meeting such situations. The trial Court was amply justified in making the order of temporary injunction ex parte. The defendants could have entered appearance and moved the Court for discharging the order of temporary injunction instead of rushing to the appellate Court.

7. For the above reasons, I allow this revision petition, set aside the order of the Court below and remit the matter to the trial Court which is directed to dispose of the objections of the defendants under Rule 4 of Order XXXIX of the Code within two weeks of the receipt of this order. Until a final order is made by the trial Court, the order of temporary injunction made by the trial Court is continued with the modification that the said order shall not entitle the plaintiff to install any new installlations or constructions or to interfere with the defendants' enjoyment of their lands. The parties are directed to bear their own costs. Ordered accordingly.

8. Revision allowed.


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