1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO.7133 OF 2013(CPC)
BETWEEN
SRI C KRISHNAPPA
S/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT OLD NO.784,
NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE,
NEAR RAILWAY GATE,HEBBAL,
BANGALORE-560 024. ...APPELLANT
(BY SRI.YESHU MISHRA , ADVOCATE)
AND
1. SRI SUBRAMANI
S/O LATE CHIKKAMUNIYAPPA
DIED ON 27.01.2015
REPRESENTED BY LRS.
1(A) SMT. VASANTHA
W/O LATE SUBRAMANI
AGED 50 YEARS.
1(B) SRI. GAGAN
S/O LATE. SUBRAMANI
AGED 21 YEARS.
1(C) KUMARI POOJA
D/O LATE SUBRAMANI
16 YEARS, REPRESENTED BY NATURAL
GUARDIAN SMT. VASANTHA 1(A)
2
R-1(A) TO 1(C) R/AT NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE
NEAR RAILWAY GATE, HEBBAL,
BANGALORE
2. SMT.PUTTAMMA
W/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 74 YEARS,
3. SRI. C.SRINIVASA
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 44 YEARS,
4. SRI C.RAMESH
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 40 YEARS,
RESPONDENTS NO.2 TO 4 ARE
RESIDING AT OLD NO.784,
NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE,
NEAR RAILWAY GATE,HEBBAL,
BANGALORE-560 024.
5. SMT.YASHODAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O CHIKKABYAPPA,
AGED ABOUT 60 YEARS,
R/AT NEELASANDRA, ANEPALYA,
(GANGADHARANAGAR) MAIN ROAD,
NEAR GANESHA TEMPLE, BANGALORE - 560 064.
6. SMT.VIJAYAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O RAJANNA,
AGED ABOUT 50 YEARS,
SRI GANESHA HOME MEALS SUPPLIERS,
NORTH INDIAN AND SOUTH INDIAN,
NO.16, 23RD MAIN, 2ND CROSS,
J.P.NAGAR, 2ND PHASE, BANGALORE-560 078.
7. SMT.KANTHAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O M.SHANKAR,
AGED ABOUT 38 YEARS,
3
R/AT NO.1, R.K.MUTT,
NEAR SHANIMAHATHMA SWAMY TEMPLE,
GAVIPURAM GUTTAHALLI, CHAMARAJAPET,
BANGALORE-560 018.
...RESPONDENTS
(R1( A TO C) ,R-2, R-3, R-4, R-7 - SERVED
V/O/DT: 10.06.2015- NOTICE TO R-5 & R-6 D/W)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC,
AGAINST THE ORDER DT: 16.08.2013 PASSED ON I.A.NO. 12 IN
OS.NO. 5051/2008 ON THE FILE OF THE XXXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING I.A.NO.12
FILED U/O 39 RULE 2A R/W SEC. 151 OF CPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned order dated 16.08.2013 passed in O.S.No.5051/2008 by the XXXVIII Addl.City Civil and Sessions Judge, Bangalore, whereby the trial court allowed I.A.No.12 filed by respondent No.1 under Order 39 Rule 2-A r/w Section 151 CPC and directed appellant to be detained in civil prison for a period of one month.
2. Heard the learned counsel for appellant. The respondent having been served with the notice of this appeal, has remained unrepresented and not contested the matter. 4
3. The material on record indicates that in O.S.No.5051/2008 filed by respondent No.1-plaintiff before the trial court, the appellant was arrayed as defendant No.2 and he contested the suit. Pursuant to an application I.A.11 filed by respondent No.1 under Section 151 CPC, by order dated 12.02.2013, the trial court allowed the said application and directed the appellant to supply electricity connection to the premises of respondent No.1. Subsequently, respondent No.1 filed the instant application I.A.12 dated 20.04.2013 contending that the appellant had violated the said order dated 12.02.2013. Though, the appellant contested the said application, the trial court proceeded to allow the said application by the impugned order dated 16.08.2013.
4. The material on record also indicates that during the pendency of I.A.12, the appellant had filed one more application I.A.18 seeking modification of the earlier order dated 02.02.2013 passed on I.A.11 as stated supra. By order dated 16.12.2013, the said I.A.18 filed by the appellant was allowed by the trial court permitting the appellant and 5 defendant No.1 to transfer / shift the electricity meter in occupation of the plaintiff at the cost of defendants 1 and 2. It is seen that the said order dated 16.12.2013 was complied with by the appellant as well as defendant No.1.
5. The aforesaid facts and circumstances clearly indicate that in the light of the subsequent order dated 16.12.2013 passed by the trial court allowing I.A.No.18 filed by the appellant herein and modifying the earlier order on I.A.No.11 dated 12.02.2013, the impugned order passed by the trial court allowing I.A.No.12 on the ground of alleged willful disobedience / contempt committed by the appellant of the order at I.A.No.11 deserves to be set aside since the alleged willful contempt / willful disobedience has been purged by virtue of the subsequent order on I.A.No.18 dated 16.12.2013. Consequently, the impugned order passed by the trial court deserves to be set aside on this short ground alone.
6. It is also relevant to state that a perusal of the order on I.A.No.11 will indicate that the said application had been 6 filed by respondent No.1 - plaintiff under Section 151 CPC and not under Order 39 Rules 1 and 2 CPC. It is needless to state that in order to attract Order 39 Rule 2-A CPC for alleged willful disobedience/contempt, it is necessary that I.A.No.11 should have been filed under Order 39 Rules 1 and 2 CPC; In other words, an application under Order 39 Rule 2-A CPC seeking to enforce an order passed under Section 151 CPC cannot be said to be maintainable and the impugned order deserves to be quashed on this ground also.
7. In the result, I pass the following:-
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 16.08.2013 passed on I.A.No.12 is hereby set aside.
Sd/-
JUDGE Srl/Mds.