Sri N Raju vs Sri Y N Ratan
2022 Latest Caselaw 251 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY 2022

                       BEFORE

    THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

MISCELLANEOUS FIRST APPEAL NO.4487 OF 2021 (CPC)

BETWEEN:

SRI N.RAJU,
S/O NARASIMHAIAH,
AGED ABOUT 49 YEARS,
R/AT NO.1977, 28TH CROSS,
D GROUP LAYOUT,
BEHIND AGASTHYA SCHOOL,
NAGARBHAVI,
BENGALURU-560091.
                                      ...APPELLANT
(BY SRI. PRITHVEESH M.K, ADVOCATE)
AND:

SRI Y.N.RATAN,
FATHER'S NAME NOT KNOWN TO THE PLAINTIFF,
MAJOR,
R/AT NO.513, 8TH CROSS,
7TH BLOCK, JAYANAGARA,
BENGALURU-560082.
                                   ...RESPONDENT
(BY SRI. B.R.VISWANATH, ADVOCATE)
      THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
04.09.2021 PASSED ON I.A.NOS 1 AND 2 IN
OS.NO.5183/2020 ON THE FILE OF THE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU
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CCH.NO.19, DISMISSING THE I.A.NO.1 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC, ALLOWING THE
I.A.NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 R/W
SECTION 151 OF CPC AND ETC.,

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

                        JUDGMENT

The appellant being aggrieved by the order on

I.A.Nos.1 and 2 dated 04.09.2021 passed by VII Additional

City Civil and Sessions Judge, (CCH-19), Bengaluru has

filed this appeal.

2. Brief facts leading to filing of this appeal are

that:

The appellant has filed a suit in O.S.No.5183/2020

seeking for the relief of perpetual injunction restraining the

respondent from interfering with the peaceful possession

and enjoyment of the suit schedule property. In the said

suit, the appellant has filed an application I.A.No.1 seeking

an order of temporary injunction over the suit schedule

property. The respondent has also filed I.A.No.2 seeking

an order of temporary injunction against the petitioner

from interfering with the peaceful possession and

enjoyment of site No.63. The trial Court after hearing the

parties, rejected the application I.A.No.1 filed by the

petitioner and allowed I.A.No.2 filed by the respondent.

Hence, the appellant has filed the present appeal

challenging the order passed in I.A.Nos.1 and 2.

3. Heard the learned counsel for the appellant

and also the learned counsel for the respondent.

4. Learned counsel for the appellant submits that

the petitioner has filed a suit in respect of site No.64 and

the respondent has filed an injunction application in

respect of site No.63, wherein the site No.63 is not the

subject matter of the suit schedule property. He further

submits that the cause of action for filing I.A.No.2 is

different and it is not arising out of the same cause of

action. He has placed the reliance on the judgment of Full

Court Bench in case of Smt. Shakuntalamma and

others Vs Smt. Kanthamma and others reported in ILR

2014 KAR 6025, wherein he submits that the application

filed by the respondent is not maintainable. The trial Court

without considering the said aspect, has proceeded to pass

the impugned order. He further submits that the impugned

order passed by the trial Court is not a speaking order. No

reasons has been assigned by the trial Court. Hence, on

these grounds, he prays to allow the appeal and seeks for

reconsideration of the said application.

5. Per contra, the learned counsel for the

respondent fairly concede that the trial Court has not

assigned any reasons in the impugned order. Hence, he

submits that he has no objection to remit the matter back

to the trial Court for reconsideration of I.A.Nos.1 and 2.

6. Heard and perused the records and considered

the submissions of the learned counsel for the parties.

7. The appellant has filed a suit in

O.S.No.5183/2020 and in the said suit, the appellant has

filed I.A.No.1 seeking for grant of perpetual injunction

against the respondent. The trial Court has rejected the

said application vide order dated 15.01.2021. Being

aggrieved by the said order, the appellant has filed an

appeal in M.F.A.No.521/2021. This Court vide order dated

23.03.2021, allowed the appeal and remitted the matter to

the trial Court to reconsider I.A.Nos.1 and 2 afresh and

pass an appropriate order in accordance with law, by

assigning the reasons. From the perusal of the impugned

order, the contentions which have been raised by the

appellant have not been considered by the trial Court with

regard to the maintainability of the application filed by the

respondent and also in regard to the judgment cited by the

learned counsel for the appellant before the trial Court.

Without assigning any reasons has passed the impugned

order. This Court without discussing anything on the merits

of the issue, this Court feels that the matter is required to

be reconsider by the trial Court. In view of the above and

also the submission made by the learned counsel for the

parties, I proceed to pass the following:

ORDER

1. Writ petition is allowed;

2. The impugned order dated 04.09.2021

passed by the VII Additional City Civil and

Sessions Judge, (CCH-19), Bengaluru is

set aside and quashed.

The trial Court is directed to reconsider I.A.Nos.1

and 2 afresh and pass an appropriate order in accordance

with law, by assigning the reasons and also contentions

raised by both the parties.

Earlier this Court had directed both the parties to

maintain status-quo regarding possession, nature and

character of the suit schedule property till the disposal of

I.A.Nos.1 and 2. In view of the same, both the parties are

directed to maintain status-quo in regard to title,

possession nature and character of the suit schedule

property till the disposal of the I.A.Nos.1 and 2.

This Court has not made any adjudication of the

matter on merits in issue.

All the contentions of the parties are kept open.

SD/-

JUDGE ssb