Smt. M. Sai Shruthi vs M/S Aircraft Co Operative Society ...
2022 Latest Caselaw 353 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10TH DAY OF JANUARY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

          M. F. A. NO.6641 OF 2021 (CPC)

BETWEEN:

SMT. M. SAI SHRUTHI
D/O SRI. T. MURALIDHARA
AGED ABOUT 29 YEARS
R/AT NO. 463, "SAI SHRUTHI NILAYAM"
R.J. GARDEN, 1ST CROSS
CHINNAPPANAHALLI VILLAGE
MARATHAHALLI POST, BENGALURU - 560 037.

REPREENTED BY HER
GENERAL POWER OF ATTORNEY HOLDER

SRI. K. CHETHAN KUMAR
S/O SRI. P. KRISHNA MURTHY
AGED ABOUT 38 YEARS, R/AT NO. 22,
"SRI SATHYA SAI NILAYAM"
CHINNAPPANAHALLI VILLAGE
MARATHAHALLI POST, BENGALURU 560037.
                                        ...APPELLANT
(BY SRI. C SHANKAR REDDY, ADVOCATE)

AND:

M/S AIRCRAFT CO-OPERATIVE SOCIETY LTD
NO. 15, CKC GARDEN
K.H ROAD, BANGALORE 560027
                               2




REPRESENTED BY ITS SECRETARY
SRI. B.H. BALAJI
SON OF HANNALAGE GOWDA
AGED ABOUT 40 YEARS.
                                                ....RESPONDENT
(BY SRI. A.V. NISHANTH, ADVOCATE)

     THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r)
R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED
24.01.2020 PASSED ON IA NO.2 IN O.S.NO.2492/2017 ON
THE FILE OF THE VII ADDITIONAL CITY CIVIL AND
SESSIONS    JUDGE,   BENGALURU     CITY,   (CCH-19),
REJECTING IA NO.2 FILED U/O.39 RULE 1 AND 2 R/W
SECTION 151 OF CPC.

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

                        JUDGMENT

The appellant has filed this appeal challenging

the order dated 24.01.2020 passed on I.A.No.2 in

O.S.No.2492/2017 by the VII Addl. City Civil &

Sessions Judge, Bengaluru City (CCH-19).

2. Brief facts leading rise to filing of this appeal

are as under:

The appellant has filed a suit in O.S.No.

492/2017. In the said suit, appellant has filed

I.A.No.2 seeking for an order of temporary injunction

restraining the respondent or anybody claiming under

them from interfering with the appellant's and her

tenants' peaceful possession and enjoyment of the

suit property. In support of the application, the

appellant has filed an affidavit. In the said affidavit it

is stated that the appellant is in possession of the suit

property through her tenants. It is stated that the

respondent is trying to demolish the building and

made appellant to lodge a police complaint and they

refused to accept the complaint in view of the threat

of dispossession made by the respondent on the date

disclosed in the plaint. It is further contended that

since the appellant's possession is legal and lawful and

appellant is entitled for injunction and it is further

contended that appellant has made out prima facie

case, balance of convenience lies in favour of the

appellant and also if injunction is refused, appellant

will be put to irreparable loss as the appellant has

already constructed a multi-storeyed building. Hence

on these grounds prayed to allow the application.

Respondent filed written statement and also filed

a memo adopting the written statement as objections

to the application.

The Trial Court has passed the impugned order

rejecting the application filed by the appellant.

Hence this appeal.

3. Heard learned counsel for the appellant and

learned counsel for the respondent.

4. Learned counsel for the appellant submits

that the appellant has raised several contentions in

the application and also in the plaint. The Trial Court

without considering the contentions raised by the

appellant, has passed the impugned order. He further

submits that the impugned order is not a speaking

order. He further submits that no reasons have been

assigned by the Trial Court for rejecting the

application. Hence on these grounds, prayed to allow

the appeal.

5. Per contra, learned counsel for the

respondent seriously objects and contends that the

Trial Court was justified in passing the impugned

order.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. The appellant has filed a suit for injunction

restraining the officials of the respondent from

interfering with the appellant's peaceful possession

and enjoyment of the suit schedule property. Further,

the appellant has produced photographs to show that

the appellant has constructed a building and has let

out the said building to tenants and tenants are in

possession of the suit property. The said photographs

have not been disputed by the respondent. The Trial

Court, without considering the contentions raised by

the appellant in the plaint as well as in the application,

and also without considering the materials produced

by the appellant, has proceeded to pass the impugned

order. The Trial Court has not assigned any reasons

for rejecting the said application. The order passed by

the Trial Court is not a speaking order. Hence on this

ground alone, the impugned order is liable to be set

aside.

8. In view of the above discussion, I proceed to

pass the following:

ORDER

The appeal is allowed.

The impugned order dated 24.01.2020, passed on I.A.No.2 in O.S.No.

2492/2017 is set aside. The Trial Court is directed to reconsider I.A.No.2 afresh and pass appropriate orders in accordance with law, within a period of one month from the date of receipt of a copy of this order.

          Learned counsel        for the appellant
     submits      that   there      is     threat   of

dispossession from the respondent.

Submission is placed on record.

Parties are directed to maintain status quo as on today, till the disposal of I.A.No.2 by the Trial Court.

All the contentions of the parties are kept open.

SD/-

JUDGE

RD