Charanjeet Chandana vs Mr K A Suresha
2021 Latest Caselaw 622 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JANUARY, 2021

                         BEFORE

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               M.F.A.NO.4001 OF 2020(CPC)

BETWEEN

CHARANJEET CHANDANA
S/O MR KANSHI LAL CHANDANA
AGED ABOUT 41 YEARS
RESIDING AT NO.D-705
ALPINE PYRAMID ROAD
RAJIVGANDHI NAGAR
CANANRA BANK LAYOUT
BENGALURU-560 097
                                                ...APPELLANT
(BY SRI. KIRAN V. RON, ADVOCATE)

AND

MR K A SURESHA
S/O MR K H ANJINAPPA
AGED ABOUT 57 YEARS
RESIDING AT NO.192
DEFENSE COLONY
SAHAKARANAGAR
BENGALURU-560 092
                                              ...RESPONDENT
(BY SRI. M.S. SHYAM SUDAR, ADVOCATE)

       THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CP,
AGAINST THE ORDER DATED: 10.09.2020 PASSED ON I.A.NO. 2 IN
O.S.NO. 2093/ 2020 ON THE FILE OF THE C//C LV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CCC -56, DISMISSING
THE I.A.NO. II FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal by the plaintiff in O.S.No.2093/2020 is

directed against the impugned order dated 10.09.2020 passed

on I.A.II under Order 39 Rules 1 and 2 CPC for temporary

injunction which was dismissed by the trial court.

2. Heard the learned counsel for appellant, learned

counsel for respondent and perused the material on record.

3. The material on record indicates that it is not in

dispute that the plaintiff instituted the aforesaid suit on

18.03.2020 for permanent injunction and other reliefs in

respect of suit schedule immovable property. It is also not in

dispute that the said suit was contested by the respondent-

defendant and the plaintiff-appellant had filed I.A.2 for an

order of interim temporary injunction against the defendant as

stated supra which was also opposed by the defendant. While

it is the specific contention of the respondent-defendant that

the plaintiff voluntarily vacated and handed over the vacant

possession of the suit schedule property on 19.03.2020 vide

letter dated 19.03.2020, apart from disputing the said

contention, it is the contention of the appellant-plaintiff that he

was illegally and highhandedly dispossessed by the defendant

from the suit schedule premises on 21.09.2020. It is also not

in dispute that in this appeal, the appellant-plaintiff has filed

I.A.1/2020 under Section 144 r/w Order 39 Rule 1 and Section

151 CPC seeking restitution by way of mandatory injunction

against the respondent-defendant to restore possession of the

property to the plaintiff.

4. In view of the aforesaid facts and circumstances, I am

of the view that in addition to the other rival contentions urged

by both sides, the issue with regard to whether the plaintiff

voluntarily handed over the vacant possession of the suit

schedule property to the defendant on 19.03.2020 as

contended by the respondent-defendant or whether he was

illegally and forcibly dispossessed from the suit schedule

property by the defendant on 21.09.2020 as contended by the

appellant-plaintiff would require to be adjudicated upon by the

trial court only after full fledged trial. Therefore, without

expressing any opinion on the merits/demerits of the rival

contentions, I deem it fit and proper to dispose of this appeal

with certain directions.

5. At this juncture, learned counsel for the respondent

submits that since there was no interim order operating

against the respondent in this appeal, the respondent has let

out the suit schedule property to a third party.

6. In the result, I pass the following:-

ORDER

(i) Appeal is hereby disposed of.

(ii) The impugned order dated 10.09.2020 passed on

I.A.No.2 in O.S.No.2093/2020 by the trial court is hereby set

aside.

(iii) Liberty is reserved in favour of the appellant to file

such appropriate application(s) before the trial court seeking

suitable reliefs including the relief sought for by the appellant

in I.A.1/2020 referred to above and the said application shall

be disposed off along with the main suit.

(iv) The trial court is directed to dispose of the suit on

merits after giving sufficient opportunity to both sides and

without being influenced by the observations and findings

recorded by the trial court in the impugned order.

(v) All rival contentions between the parties are kept

open.

(vi) Having regard to the fact that the issue in

controversy between the parties lies within a narrow compass,

the trial court is directed to dispose of the suit on or before

24.04.2021.

(vii) It is needless to state that in the event the

appellant-plaintiff succeeds in the suit as well as the I.A. filed

by him for restitution as stated supra, the respondent-

defendant would be bound to restore the possession of the

suit schedule property in favour of the appellant and the

respondent shall not claim any equity in this regard.

Sd/-

JUDGE

Srl.