Kishore Kumar H Shah vs Mr P Mudialba @ Peter Mudialba
2022 Latest Caselaw 2457 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF FEBRUARY 2022

                      BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

         M. F. A. NO.7167 OF 2021 (CPC)

BETWEEN:

KISHORE KUMAR H SHAH
S/O LATE HIRALAL P SHAH,
AGED ABOUT 59 YEARS,
RESIDING AT SITE NOS. 45 AND 46,
SITUATED AT SRIGANDADAKAVAL,
YESHAWANTHAPURA HOBLI,
BENGALURU NORTH TALUK - 560091.
ALSO AT NO.105/1, 1ST MAIN ROAD,
SHESHADRIPURAM,
BENGALURU-560020.
                                         ...APPELLANT
(BY SRI. RAJASHEKAR S., ADV.)

AND

MR P MUDIALBA @ PETER MUDIALBA
S/O E.K.PETER,
AGED ABOUT 62 YEARS,
R/AT NO.314, 7TH MAIN ROAD,
80 FEET ROAD, H.R.B.R. LAYOUT,
1ST STAGE, KALYAN NAGAR,
BENGALURU-560043.
                                        ...RESPONDENT

(BY SRI. THYAGARAJA S., ADV. FOR C/R)
                            2




      THIS APPEAL IS FILED UNDER UNDER ORDER 43
RULE 1(r) OF CPC, 1908 AGAINST THE ORDER DATED
27.11.2021 PASSED ON I.A. NO.I AND III IN O.S.NO.
5562/2019 ON THE FILE OF THE LX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, C/C XLIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 45),
REJECTING I.A. NO.1 FILED UNDER ORDER XXXIX RULE 1
OF CPC AND DISPOSING OF I.A.NO.3 FILED UNDER
ORDER XXXIX RULE 4 OF CPC.

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


                      JUDGMENT

The appellant aggrieved by the common order

dated 27.11.2021, passed on I.A.Nos.1 and 3 in

O.S.No.5562/2019 by the XLIV Additional City Civil

and Sessions Judge, Bengaluru (CCH-45) has filed this

appeal.

2. Brief facts leading rise to filing of this appeal

are as under:

The appellant filed a suit in O.S.No. 5562/2019

seeking for the relief of declaration and also vacant

possession of plaint schedule property and other

reliefs. In the said suit, the appellant has filed

I.A.No.1 seeking for an order of temporary injunction

restraining the respondent from putting up any

construction or changing the nature of the suit

schedule property. The respondent appeared and filed

written statement denying the averments made in the

plaint and also filed objections to I.A.No.1. The Trial

Court, after hearing the parties, dismissed the

application filed by the appellant. Hence this appeal.

3. After hearing for sometime, learned counsel

for the appellant submits that if the respondents is

ready to give an undertaking that in case if the

appellant succeeds in the instant suit, the respondent

must not claim any equity and shall handover the

vacant possession of the suit property in favour of the

appellant. In response, the respondent filed an

affidavit stating that if the appellant succeeds in the

instant suit, the respondent will not claim any equity

and will handover vacant possession of the suit

property as per the order of the Court.

4. The memo along with the affidavit filed by

the respondent is placed on record.

5. In view of the undertaking given by the

respondent, nothing survives for consideration in this

appeal. Accordingly, the appeal is disposed of.

6. In view of disposal of the appeal, pending

IAs. do not survive for consideration and are

accordingly disposed of.

SD/-

JUDGE

RD