B Putabyatappa vs Smt S Shobha
2022 Latest Caselaw 5301 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23 R D DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.3914 OF 2016 (CPC)

BETWEEN:

1.   B. Putabyatappa
     Aged about 70 years
     Son of Late Byaterang app a

2.   Smt. Yeshod a
     Aged about 37 years
     D/o Putabyatappa

     Both are residing
     At No.140/b, New BEL Road
     Sanjaynag ar, Beng aluru-94.
                                         ...Appellants
     (By Sri S. Saravana, Advocate)

AND:

Smt S Shobha
Wife of Late L.A MohanBabu
Aged about 35 years
#15, 6 t h Main Road ,
Near Lakshmi Tent,
MSR Nag ar
Beng aluru-94.                           ...Respondent

(By Sri N. Thimmegowd a, Advocate)

     This MFA is filed U/O 43 Rule 1(r) of CPC ag ainst
the ord er d ated 26.04.2016 passed on I.A. No.1 in O.S
No.5951/2014 on the file of the XXXIX Additional City
                           :: 2 ::


Civil and Sessions Judge, Bang alore, allowing I.A No.1
filed U/O 39 Rules 1 & 2 of CPC.

       This MFA coming on for admission this d ay, the
Court delivered the following:

                        JUDGMENT

Heard Sri Saravana S, learned counsel for the

appellants and Sri Thimmegowda, learned counsel

for the respondent.

2. This appeal is preferred by defendants 1

and 2 aggrieved by the order dated 26.4.2016

passed by the Additional City Civil and Sessions

Judge, Bengaluru, on I.A.No.1 filed under Order

XXXIX Rules 1 and 2 CPC in O.S.5951/2014. The

trial court has directed the plaintiff and defendants

to maintain status quo till disposal of the suit.

3. The plaintiff claims to be the owner in

possession of site No.47A formed in Sy. No. 220 in

old Sy. No. 37 of Kodigehalli Village. She claims to

have purchased the said property from :: 3 ::

D.Krishnamurthy. The measurement of the

plaintiff's site is East to West : 12 feet and North

to South : 40 feet. Defendants also claim to be

the owners of site No.47 measuring East to West :

30 feet and North to South : 27 feet formed in the

same survey number.

4. The trial court has given a finding that

both the parties are claiming title in respect of the

suit schedule site and written statement schedule

property under the same owner. This finding

probably gives an indication that the parties are

claiming the same property with different

measurements. This could be the reason for

directing the parties to maintain status quo. I do

not find any infirmity in it.

5. Now, the appellants' counsel assails the

impugned order by submitting that there is already

a decree in favour of the appellants in

O.S.6478/2014 and therefore the impugned order :: 4 ::

cannot be sustained. It appears that when the

trial court decided the application for temporary

injunction, the appellants did not produce copy of

the judgment in O.S.6478/2014 before it. This is

a new document which the appellants are

producing before the court for setting aside the

impugned order. If the appellants want the

impugned order to be set aside based on this

document, i.e., copy of the judgment in

O.S.6478/2014, unless the trial court would give

its finding on the new document, it cannot be

entertained here because in the appeal preferred

under Order 43 Rule 1 CPC, this court has to

examine whether the trial court has exercised

discretion properly based on materials placed

before it. In this view, I find that the trial court

may be directed to decide the application for

temporary injunction afresh considering the impact

of the judgment in O.S.6478/2014. Therefore,

appeal is allowed. The impugned order dated :: 5 ::

26.4.2016 passed by the Additional City Civil and

Sessions Judge, Bengaluru in O.S.5951/2014 is set

aside. The matter is remanded to the trial court

for disposal of the application for temporary

injunction afresh. The appellants are permitted to

produce copy of the judgment in O.S.6478/2014

before the trial court. The application shall be

expeditiously disposed of. Till the application is

decided by the trial court, the parties shall

maintain status quo of the suit property as it

existed on the date of suit.

Sd/-

JUDGE

ckl/-