Karnataka High Court
Ayyanna Gowda vs Boregowda on 3 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.27073 OF 2019(GM-CPC)
BETWEEN:
AYYANNA GOWDA
S/O LATE APPANNA GOWDA
AGED ABOUT 83 YEARS
RESIDING AT YATHAGONAHALLI VILLAGE
HONAKERE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571 432.
...PETITIONER
(BY SRI. M.J. ALVA, ADVOCATE)
AND:
BOREGOWDA
S/O NANJAIAH
AGED ABOUT 62 YEARS,
RESIDING AT HEBBANDI VILLAGE
KADADAKATTE POST, BADRAVATHI TALUK
SHIVAMOGGA DISTRICT-577 229.
....RESPONDENT
(BY SRI. H.T. NARAYAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
JUDGMENT DATED 25TH APRIL, 2019 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA IN MISCELLANEOUS
APPEAL NO.8 OF 2018 ALLOWING APPEAL AND GRANTING
TEMPORARY INJUNCTION IN FAVOUR OF THE RESPONDENT IN
RESPECT OF THE SUIT SCHEDULE PROPERTIES IN ORIGINAL SUIT
NO.33 OF 2018 WHICH ARE PRODUCED AT ANNEXURES-A AND C;
AND ETC.
2
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the defendant in Original Suit
No. 33 of 2018 on the file of the Civil Judge and JMFC.,
Nagamangala challenging the order dated 25th April, 2019
passed by the Senior Civil Judge and JMFC, Nagamangala in
Miscellaneous Appeal No.8 of 2018 allowing the appeal and
granting temporary injunction in favour of respondent in respect
of the subject matter of the suit.
2. The brief facts for the adjudication of this writ petition
are that the Original Suit No.33 of 2018 is filed by the
respondent herein seeking relief of declaration in respect of the
suit schedule property. The plaintiff has filed IA.I under Order
XXXIX Rule 1 and 2 read with Section 151 of Civil Procedure
Code seeking temporary injunction against the petitioner herein,
which came to be dismissed by the trial Court by order dated
27th June, 2018. Being aggrieved by the same, the
plaintiff/respondent herein has filed Miscellaneous Appeal No.8 of
2018 on the file of First Appellate Court. The First Appellate
Court after considering the material on record by order dated
25th April, 2019, allowed the appeal and as such, set aside the
order dated 27th June, 2018 passed by the trial Court. Feeling
aggrieved by the same, the present writ petition is filed.
3. I have heard Sri. M.J. Alva, learned counsel appearing
for petitioner and Sri. H.T. Narayan, learned counsel appearing
for respondent.
4. Sri. M.J. Alva, learned counsel appearing for petitioner
submits that the trial Court failed to consider the fact that the
Original Suit No.7 of 2005 was filed by the petitioner herein
against the defendants seeking relief of declaration, which came
to be decreed on 25th April, 2009 and against the said judgment
and decree Regular Appeal No.28 of 2009 is filed before the First
Appellate Court and the same is pending consideration before
the First Appellate Court. He further contended that, the subject
matter in Original Suit No.33 of 2008 is also the subject matter
in Regular Appeal No.28 of 2009 and since the said Regular
Appeal No.28 of 2009 is pending consideration before the First
Appellate Court, and the trial Court, after considering the
material on record, has rightly dismissed the IA.I filed by the
respondent herein in Original Suit No.33 of 2008 and said aspect
has not been appreciated by the First Appellate Court in
Miscellaneous Appeal No.8 of 2018. Hence, he sought for
interference in this writ petition.
5. Per contra, Sri. H.T. Narayan, learned counsel
appearing for respondent contended that the Original Suit
No.268 of 1989 was filed by the respondent against the
petitioner herein and he has been arraigned as defendant No.2
and the said suit came to be decreed in part. Being aggrieved
by the same, Regular Appeal No.69 of 2003 filed before the First
Appellate Court and the same was partly allowed and had
reached finality. The said aspect of matter was suppressed by
the petitioner herein in Original Suit No. 7 of 2005 and therefore
Sri. H.T. Narayan, learned counsel appearing for respondent
contended that the equitable relief under Order XXXIX Rule 1
and 2 of the Civil Procedure Code cannot be extended to a
litigant who has suppressed the facts before the trial Court.
6. Having heard the learned counsel appearing for the
parties, and in the light of the fact that the Original Suit No. 268
of 1989 was filed by the respondent herein against the
defendant/petitioner in this writ petition and the petitioner
herein has been arraigned as defendant No.2 in the said suit, the
said suit which came to be decreed in part, against which
Regular Appeal No.69 of 2003 was filed which appeal was partly
allowed. In the light of submission made by learned counsel
appearing for respondent, I have carefully considered the plaint
averments in Original Suit No.7 of 2005 filed by the petitioner
herein. Perusal of the entire averments in the plaint would
indicate that the plaintiff has suppressed the proceedings in
Original Suit No.268 of 1989 and Regular Appeal No.69 of 2003
despite the fact that the petitioner herein was arraigned as
defendant No.2 in the said suit. It is well established principle
that the granting or refusing of the temporary injunction is of
equitable in nature and the plaintiff who seeks temporary
injunction has to approach the Court with clean hands. Having
said so that the defendant has suppressed the decree passed by
the competent Court in Original Suit No.268 of 1989 and Regular
Appeal No.69 of 2003 in Original Suit No.7 of 2005, I am of the
considered view that the First appellate Court was justified in
allowing the appeal and accordingly, I do not find any acceptable
ground to interfere with the impugned order passed by the First
Appellate Court.
Accordingly, writ petition is rejected.
Sd/-
JUDGE
ARK
