Sri M V Ravi vs Sri M V Venkatesh
2022 Latest Caselaw 10409 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 06TH DAY OF JULY, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.2977/2022(CPC)

BETWEEN:

SRI. M.V. RAVI
S/O LATE T. VENKATASWAMY
MAJOR 60 YEARS
R/A NO.726, 2ND MAIN ROAD
MATHIKERE POST, BENGALURU-560 054
                                       ... APPELLANT

(BY SRI. CHANDRA KANTH R. GOULAY, ADVOCATE)

AND:

SRI. M.V. VENKATESH
AGED ABOUT 58 YEARS
S/O LATE VENKATASWAMY
NO.726, 2ND MAIN ROAD
MATHIKERE POST
BENGALURU-560 054
                                       ... RESPONDENT
(BY SRI. GURURAJ KULKARNI, ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43, RULE 1(r) R/W SECTION 151 OF CPC AGAINST THE
ORDER DATED:18.02.2022 PASSED ON IA NO.1 AND 2 IN
O.S.NO.6435/2021 ON THE FILE OF THE LVI ADDITIONAL CITY
CIVIL   AND   SESSIONS    JUDGE,    BENGALURU(CCH-57),
DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 AND
ALLOWING IA NO.2 FILED U/O.39 RULE 4 OF CPC AND ETC.

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

The dispute in O.S.No.6435/2021 on the file of the

LVI Additional City Civil and Sessions Judge, Bengaluru

(for short, 'the civil Court') is between two brothers who

own adjacent properties. The plaintiff-appellant has

commenced this suit for permanent injunction asserting

that the respondent is putting up construction contrary

to the sanction plan. The civil Court, which has initially

granted ex parte order, by the impugned order, has

rejected the appellant's application under Order XXXIX

Rule 1 and 2 of the Code of Civil Procedure, 1908.

Sri Chandrakanth R. Goulay, the learned counsel

for the appellant, submits that because the appellant's

chief grievance is with the respondent constructing

building without adhering to the sanction plan and

licence issued, the appellant has filed a writ petition in

W.P.No.10177/2022 and there are certain orders by

this Court in such proceedings on 16.6.2022. Therefore,

the present appeal could be disposed of without any

orders. Sri Gururaj Kulkarni, the learned counsel for

the respondent, submits that originally the property was

an ancestral property, which is partitioned between the

parties, and the suit is commenced only to harass the

respondent who has already completed the

construction.

As the appellant chooses to pursue his remedy in

W.P.No.10177/2022, this Court is of the considered

view that this Court need not enter into the merits of

the rival claims in this appeal. Therefore, the appeal

stands disposed of without any interference but subject

to all just liberty.

SD/-

JUDGE SA Ct:sr