'John Doe' Injunction Order To Protect Property Possession Can Be Passed If There Is Threat From Unknown Persons : Karnataka High Court

Justice Sreenivas Harish Kumar while hearing an appeal filed by one Meera Ajith, said,

"Order XXXIX Rule 1(a) CPC states that an order of temporary injunction may be granted against any party to the suit. According to Clauses (b) & (c), injunction may be granted in favour of the plaintiff and against the defendant. The plaint must disclose the names and identity of the parties. But in a situation as has been made out in this case, if there is a threat to the possession of the plaintiff by unknown person/s, is it possible to say that injunction cannot be granted. I do not think that injunction can be denied if circumstances are as such that there is a serious threat to the possession of the plaintiff by unknown persons."

It ordered,

"An order of temporary injunction is issued restraining the first 'John Doe' respondent/s from interfering with the appellant's peaceful possession of the property."

Further it has directed the appellant to comply with Order XXXIX Rule 3, by taking out a paper publication of this order in widely circulated Kannada and English Dailies of Bengaluru Edition and affixing the order and the appeal memo on the outer part of the compound wall facing the road.

The court also directed the Amruthahalli police to find out the name of the person/s who have constructed the compound on two sides of the suit property and report the same to the Court so that the appellant can implead them as respondents. The Registry was directed to send a copy of this order to Amruthahalli police.

Case Background:

The appellant approached the court seeking an ex-parte order of temporary injunction against unknown first respondent, which order is popularly called 'John Doe' order. She had filed a suit before the XXV Additional City Civil and Sessions Judge, Bengaluru for permanent injunction and mandatory injunction against five defendants, of whom the first defendant is an unknown person. Defendants 2 to 5 are the Commissioner, the Executive Engineer, the Assistant Executive Engineer and the Assistant Engineer of Bruhat Bengaluru Mahanagara Palike (BBMP) respectively.

In the suit she filed an application for temporary injunction against 'John Doe' first defendant to restrain him from interfering with her peaceful possession of the suit property. The Trial Court declined to grant ex-parte order of temporary injunction.

The Trial Court held that if ex-parte temporary injunction against unknown defendant is granted, compliance under Order 39 Rule 3(a) and (b) of CPC cannot be effected and therefore ex-parte temporary injunction cannot be granted against unknown person/s. It was also of the view that the plaintiff (appellant) has not made out a prima facie case.

The counsel for the appellant submitted that if the plaintiff was aware of the name of the person who constructed a compound wall around the suit property, she would have definitely made them parties to the suit. However, all her efforts to ascertain the identity of the interferers failed and in order to protect her interest, she had to file a suit against 'John Doe' first defendant and other defendants who are the officials of BBMP. No relief is sought against BBMP officials in the application for injunction and it is only against 'John Doe' first defendant.

It was informed that the plaintiff purchased the suit property under a registered sale deed in 1995 and she obtained katha from BBMP. The plaintiff also produced photographs showing the construction of compound wall. The property is actually vacant. She contended that if injunction is not granted pending disposal of the suit, a building will be constructed and in that event, the plaintiff will lose possession. She made all her best efforts to trace the person who undertook construction of compound wall and completed it. She also approached the police, but they did not take any action.

Findings

The bench on going through the plaint and documents produced on record, disagreed with the Trial Court finding that no case is made out.

"The documents that the appellant has produced show that she purchased the suit property under a registered sale deed dated 03.07.1995 from one Erappa and Narayanamma, represented by their GPA holder Nageshwara Verma. She has produced katha extract issued in her name in respect of the suit property and also photographs showing various stages of construction of the compound. She has also produced the NCR endorsement dated 11.11.2021 issued by Amruthahalli police. If all these documents are perused, prima-facie conclusion can be formed that she could be having right over the suit property," it said.

On the issue of granting temporary injunction against an unknown defendant, the High Court said,

"Order XXXIX Rule 1(a) CPC states that an order of temporary injunction may be granted against any party to the suit. According to Clauses (b) & (c), injunction may be granted in favour of the plaintiff and against the defendant. The plaint must disclose the names and identity of the parties. But in a situation as has been made out in this case, if there is a threat to the possession of the plaintiff by unknown person/s, is it possible to say that injunction cannot be granted. I do not think that injunction can be denied if circumstances are as such that there is a serious threat to the possession of the plaintiff by unknown persons."

The court opined,

"Temporary injunction can certainly be granted to safeguard the interest of the plaintiff. But before granting an order of temporary injunction in a situation like this, the Court must be convinced that the plaintiff has made out a case of extreme urgency, that he is not misusing the situation and that he has tried his level best to trace the interferers. The Court must examine the case very scrupulously."

The court observed "Though compliance under Order XXXIX Rule 3 of CPC cannot be made by sending copies of the application for injunction, the affidavit, the plaint and the documents because the defendant is unknown person, yet it can be complied by taking out publication in news papers and affixing the order of grant of injunction on the conspicuous part of the suit property."

Further, it said,

"The Court must show ingenuity and think innovatively in a circumstance like this and then only ends of justice will be met. Responding to the paper publication or the notice affixed on the wall, if the person, against whom injunction operates, comes to Court, the application may be decided by hearing all the parties once again. Therefore I find that there is a case for granting 'John Doe' order against unknown first respondent."

Case Title: Meera Ajith v. John Doe Alias Ashok Kumar

Case No: MFA 806/2022

Citation: 2022 LiveLaw (Kar) 66