Karnataka High Court

Murigeppa vs Prakash on 14 January, 2022

Bench: Dr. H.B.Prabhakara Sastry

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

    DATED THIS THE 14TH DAY OF JANUARY, 2022

                            BEFORE

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY


    WRIT PETITION No.115660 OF 2019 (GM-CPC)
Between :

Murigeppa,
S/o Kashappa Nara,
Age 61 years, Occ: Business,
Add: APMC Yard,
Navanagar,
Bagalkot,
Tq. and Dist: Bagalkot-587101.                   .. Petitioner

 ( By Sri Mrutyunjaya S. Hallikeri, Advocate )

And :

Prakash,
S/o Kashappa Nara,
Age 56 years, Occ: Business,
Add: APMC Yard,
Navanagar,
Bagalkot,
Tq. and Dist: Bagalkot-587101.                   .. Respondent

 ( By Sri Gouri Shankar Mot, Advocate )

        This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to issue a writ, order or
direction in the nature of certiorari by quashing the order
dated 6.9.2019, passed in M.A.No.7/2018 by the Hon'ble
                                                 WP.No.115660/2019
                                 2


court of the Principal Senior Civil Judge and CJM, at Bagalkot,
vide Annexure-J, in so far as finding on the maintainability of
the suit, in the interest of justice and equity and to confirm
the   order    on   IA.No.1    dated    11.12.2018,      passed   in
O.S.No.362/2018 by the Hon'ble Court of Prl.Civil Judge &
JMFC, Bagalkot, at Bagalkot vide Annexure-F, in the interest
of justice and equity.


      This Writ Petition coming on for Preliminary Hearing 'B'
Group through Physical Hearing/Video Conference this day,
the Court made the following :

                              ORDER

The present petitioner was defendant No.1 in

O.S.No.362/2018, filed by the present respondent as plaintiff

No.2, in the Court of learned Prl.Civil Judge & J.M.F.C.,

Bagalkot, (hereinafter for brevity referred to as `trial Court'),

for the relief of declaration that plaintiff No.2 is entitled to

the profits of M/s.Prakash Traders of his share as per the

Partnership Deed and also for a declaration that the entries

with the Registrar showing that plaintiff No.2 was retired, as

illegal, sham and against the law and also for the relief of

permanent injunction.

WP.No.115660/2019

2. During the pendency of the suit, the plaintiff No.2

filed an interlocutory application i.e., IA.No.I, under Order

XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908,

(hereinafter for brevity referred to as `CPC'), seeking an

interim injunction restraining defendant No.1 from inspecting

the accounts of `Prakash Traders', of Bagalkor.

After contest, the said application came to be dismissed

by the order of the trial Court dated 11.12.2018. Aggrieved

by the same, the plaintiff No.2, who was the applicant in the

said IA., preferred a Miscellaneous Appeal under Order XLIII

Rule 1 and 2 of CPC, in the Court of learned Prl.Senior Civil

Judge & C.J.M., Bagalkot, (hereinafter for brevity referred to

as `first Appellate Court'). The said first Appellate Court

after hearing both side, passed an order dated 06.09.2019,

the operative portion of which is reproduced here below :

" The Miscellaneous Appeal preferred by the Appellant/plaintiff No.2 under Order 43 Rule 1 and 2 of Code of Civil Procedure is hereby Partly Allowed.

No order as to costs.

                                                   WP.No.115660/2019



            Order   dated:   11.12.2018    passed    by   the

Principal Civil Judge & JMFC, Bagalkot on I.A.No.1 in O.S.No.362/2018 is confirmed so far as refusal to grant an order of temporary injunction.

Draw decree accordingly.

Re-transmit the Trial court records forthwith."

3. Aggrieved by the said order passed in the

Miscellaneous Appeal, more particularly, confining to the

findings of the first Appellate Court regarding maintainability

of the suit, the defendant No.1 in the Original Suit has

preferred the present writ petition.

4. The respondent is being represented by his learned

counsel.

5. Heard learned counsel from both side.

6. Perused the materials placed before the Court,

including the writ petition and the impugned order.

7. Learned counsel for the petitioner submits that

though he is not aggrieved by the order of dismissal of

IA.No.I filed by plaintiff No.2 under Order XXXIX Rule 1 and 2

of CPC, however, in the Miscellaneous Appeal filed by the

very same plaintiff challenging the order of rejection of his WP.No.115660/2019

IA. filed under Order XXXIX Rule 1 and 2 of CPC, the first

Appellate Court though has confirmed the rejection of IA.No.I

filed by plaintiff No.2 in the trial Court, however, has shown

that appeal is partly allowed. In its reasoning at Point No.2,

in Paragraph-22 of its order, the first Appellate Court has

held that the suit of the plaintiff is certainly maintainable

before the Civil Court. The said finding is totally uncalled for

and was not the matter of dispute either before the trial

Court in IA.No.I or before the first Appellate Court in

Miscellaneous Appeal, as such, the said finding alone is

required to be set aside.

8. Learned counsel for the respondent though

submitted that the maintainability of the suit was also

addressed before the trial Court, as well before the first

Appellate Court, as such, the said observation was made

by the first Appellate Court regarding maintainability of the suit,

still, fairly concedes that neither any question regarding

the maintainability of the suit nor any pleading in the form of

application or objections regarding maintainability of the suit

was made and considered by both WP.No.115660/2019

the trial Court, as well the first Appellate Court in their

impugned orders. With this, he submits that setting aside

the said finding of the first Appellate Court regarding

maintainability of the suit as such would not be disputed by

him.

9. As observed above, the plaintiff No.2 alone had filed

IA.No.I in the trial Court under Order XXXIX Rule 1 and 2 of

CPC and upon which application, the trial Court has raised

the following four points for consideration :

" 1. Whether the plaintiff/applicant has made out prima-facie case?

2. Whether the balance of convenience lies in favour of applicant/plaintiff?

3. Whether the irreparable loss or injury would be caused to the plaintiff, if an order of temporary injunction is refused?

4. What order?"

Answering Point Nos.1 to 3 in the negative, it

proceeded to dismiss the said IA.No.I. Thus, the question of

maintainability of the suit was not before the trial Court for WP.No.115660/2019

consideration while it heard and disposed of IA.No.I by its

order dated 11.12.2018.

10. Similarly, in the Miscellaneous Appeal filed by the

very same plaintiff No.2 challenging the order of the trial

Court dated 11.12.2018 also, the points that were raised for

consideration were only two points, which are as below :

" 1. Whether the impugned order passed on IA.No.i by the Trial Court is illegal, perverse and opposed to law, facts and probabilities of the case? If so, impugned order needs to be interfered with by this Court?

2. What order?

Stating that point No.1 has been answered partly in the

affirmative, the first Appellate Court has proceeded to pass

the order, the operative portion of which has been extracted

above. However, in the process, in its reasoning on Point

No.2, the first Appellate Court has made the following

observations, which is extracted herein below :

" In view of my findings on point No.1, I am of the considered view that, the suit of the plaintiffs is certainly maintainable before the Civil Court, but WP.No.115660/2019

the plaintiff No.2 failed to make out prima facie case so as to consider his request to grant of temporary injunction."

It is the above said finding of the first Appellate Court

that 'suit of the plaintiffs is certainly maintainable before the

Civil Court' is the only aspect of challenge made in this writ

petition by the writ petitioner.

11. The above analysis clearly go to show that the

question regarding maintainability was not under

consideration either before the trial Court or before the first

Appellate Court while considering IA.No.I by the trial Court or

the appeal before the first Appellate Court. Still, the first

Appellate Court there being no reason for making such an

observation regarding maintainability of the suit, since has

made a categorical observation that the plaintiffs' suit is