Smt. Shashikala vs P.K.Shivakumar
2022 Latest Caselaw 5547 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF MARCH, 2022

                           BEFORE

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

     WRIT PETITION No.36922 OF 2017 (GM-CPC)
                      c/w.
     WRIT PETITION No.36923 OF 2017 (GM-CPC)


IN WRIT PETITION No.36922 OF 2017 (GM-CPC)

BETWEEN:

Smt. Shashikala
W/o. N.B. Parameshwaraiah,
Aged about 60 years,
Agriculturist, resident of
Nitturu, Gubbi Taluk,
Tumkur District - 572 223.
                                     ..   Petitioner

(By Sri.G. Ravishankar, for
Sri. A.V. Gangadharappa, Advocate)

AND:

1. P.K. Shivakumar,
S/o. late P.R. Kallappa
Aged about 56 years,
Residing near B.J.P. Office,
K.R. Extension, Tumkur - 572101.

2. Renukappa
S/o. late P.R. Kallappa,
Aged about 47 years,
                                                 W.P.No.36922/2017
                                           c/w. W.P.No.36923/2017
                                2


3. Siddalingaiah
S/o. late P.R. Kallappa,
Aged about 49 years.

4. Prabhuswamy @ Prabhanna,
S/o. late Rudrappa,
Aged about 44 years,

Respondents 2 to 4 are
Residents of Pura Village,
Nitturu Hobli, Gubbi Taluk,
Tumkur District - 572223.
                                                   .. Respondents

(By Sri. B.R. Prabhulinga Murthy, Advocate for R-1 to R-4)

                               ****
       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ in the nature of
certiorari or any other appropriate writ or order quashing the
order dated 24-07-2017 passed by the Court of the Additional
Civil Judge and JMFC at Gubbi on the application filed by the
petitioner under Section 151 of CPC in O.S.No.6/2016, certified
copy of which is produced as Annexure H and be pleased to allow
the application as prayed for filed by the petitioner under Section
151 of CPC in O.S.No.6/2016 true copy of which is produced as
Annexure E; etc.

IN WRIT PETITION No.36923 OF 2017 (GM-CPC)

BETWEEN:

Smt. Shashikala
W/o. N.B. Parameshwaraiah,
Aged about 60 years,
Agriculturist, resident of
Nitturu, Gubbi Taluk,
Tumkur District - 572223.
                                              ..    Petitioner
(By Sri.G. Ravishankar, for
Sri. A.V. Gangadharappa, Advocate)
                                                W.P.No.36922/2017
                                          c/w. W.P.No.36923/2017
                                3


AND:

1. P.K. Shivakumar,
S/o. late P.R. Kallappa
Aged about 56 years,
Now residing near B.J.P. Office,
K.R. Extension, Tumkur - 572101.

2. Smt. Neelambika
W/o. late P.R. Veerappa,
Aged about 69 years.

3. Shilpa
D/o. late P.R. Veerappa,
Aged about 31 years

4. Shadakshari
S/o. late P.R. Veerappa,
Aged about 29 years,

Respondents No.2 to 4 are
Residents of Devalapura
Village, Varuna Hobli,
Mysore Taluk & District - 570001.
                                               .. Respondents
(By Sri. B.R. Prabhulinga Murthy, Advocate for R-1;
R-2 to R-4 - notice dispensed with v/o. dt.30-08-2017)

                              ****
       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ in the nature of
certiorari or any other appropriate writ or order quashing the
order dated 22-07-2017 passed by the Court of the Additional
Civil Judge and JMFC at Gubbi on the memo filed by the 1st
respondent in O.S.No.180/2014 certified copy of which is
produced as Annexure K, etc.

       These Writ Petitions coming on for Preliminary Hearing in
'B' Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:
                                                     W.P.No.36922/2017
                                               c/w. W.P.No.36923/2017
                                  4


                            ORDER

The petitioner in Writ Petition No.36922/2017 is the

plaintiff in O.S.No.6/2016, in the Court of the learned

Additional Civil Judge & Judicial Magistrate First Class at

Gubbi, (hereinafter for brevity referred to as "the Trial

Court-I"), which suit was filed by her against the

respondents in the said writ petition for the relief of

permanent injunction, seeking to restrain the defendants

therein from interfering with her alleged possession of an

alleged agricultural land measuring 20.08 guntas in

S.No.31/5, said to be situated in a village called Nittur

Amanekere, Nittur Hobli, Gubbi Taluk, Tumakuru District.

The plaintiff also claims to have obtained an order of

temporary injunction dated 19-10-2016, in her favour

passed by the Trial Court upon her application-I.A.No.II

filed under Order XXXIX, Rules and 2 of the Code of Civil

Procedure, 1908 (hereinafter for brevity referred to as "the

CPC"). However, subsequently, she filed an interlocutory W.P.No.36922/2017 c/w. W.P.No.36923/2017

application - I.A.No.VII/2017, under Section 151 of the

CPC, seeking an order for Police protection against the

defendants to enable her (applicant) to cultivate the suit

schedule property. The said application came to be

dismissed by the order of the Trial Court dated 24-07-2017.

Aggrieved by the same, the writ petition No.36922/2017

has been filed by the applicant as a petitioner herein.

2. Writ Petition No.36923/2017 is also filed by the

very same petitioner who has filed Writ Petition

No.36922/2017, however, as defendant No.4 in the Original

Suit bearing O.S.No.180/2014, in the Court of the learned

Additional Civil Judge and Judicial Magistrate First Class at

Gubbi (hereinafter for brevity referred to as "the Trial

Court-II"). In the said suit, she has challenged the order

passed by the Trial Court-II, on a memo said to have been

filed by the plaintiff therein (respondent No.1 herein),

seeking consideration of his interlocutory application -

I.A.No.III/2014 filed under Order XXXIX, Rules 1 and 2 of

the CPC. The respondent No.1 in Writ Petition W.P.No.36922/2017 c/w. W.P.No.36923/2017

No.36923/2017 was the plaintiff in the said

O.S.No.180/2014, which respondent is also a respondent

No.1 in Writ Petition No.36922/2017.

3. The contention of the learned counsel for the

petitioner in both the writ petitions is that, the order of

temporary injunction granted in favour of the writ petitioner

in Writ Petition No.36922/2017 in O.S.No.6/2016 on the

interlocutory application, though has been challenged by

the defendant No.1 therein in Misc.Appeal No.15/2016, in

the Court of the learned Senior Civil Judge at Gubbi

(hereinafter for brevity referred to as "the first appellate

Court"), however, his said Miscellaneous Appeal came to be

dismissed by the judgment of the first appellate Court

under its judgment dated 11-12-2018. Therefore, the

reasoning given by the Trial Court while rejecting her

I.A.No.VII/2017 filed under Section 151 of the CPC, seeking

Police protection, observing that, an appeal was pending

wherein the temporary injunction was challenged has

become redundant and that the applicant in the said I.A.

W.P.No.36922/2017 c/w. W.P.No.36923/2017

(petitioner herein) deserves to be granted an interim order

of Police protection as prayed for.

4. Learned counsel for the petitioner further

submitted that in the other suit, i.e. in O.S.No.180/2014,

the plaintiff has filed the memo for taking up his

I.A.No.III/2014, filed under Order XXXIX, Rules 1 and 2 of

the CPC only to over come the order of temporary

injunction that has been granted in favour of the plaintiff in

O.S.No.6/2016, with respect to the very same suit

property.

5. Learned counsel for the respondent No.1 in both

the petitions submitted that, admittedly, the plaintiff

(petitioner herein) has not initiated any action against the

alleged contempt of the order of temporary injunction and

that she has not even proved the alleged interference by

the defendant No.1 in her alleged possession of the

property. Thus the Trial Court has rightly rejected her

interlocutory application - I.A.No.VII/2017 filed under W.P.No.36922/2017 c/w. W.P.No.36923/2017

Section 151 of the CPC, seeking Police protection to

cultivate the suit property.

He further submitted that, in O.S.No.180/2014, since

the Trial Court-II delayed the disposal of his I.A.III/2014,

filed under Order XXXIX, Rules 1 and 2 of the CPC, he has

filed a memo for its disposal since there is no bar to hear

such kind of interlocutory applications at any stage of the

suit during its pendency.

6. The rejection of the interlocutory application-

I.A.No.VII/2017 filed by the petitioner herein, as a plaintiff

in O.S.No.6/2016 under Section 151 of the CPC, seeking

Police protection, by the Trial Court-I was solely on the

basis that, challenging the order of temporary injunction

granted in favour of the plaintiff by allowing her I.A.No.II,

the defendant No.1 therein had preferred a Miscellaneous

Appeal in the first appellate Court, as such, during the

pendency of the said Miscellaneous Appeal, since the order

of temporary injunction has not reached its finality, it

cannot grant any Police protection, though it is prayed.

W.P.No.36922/2017 c/w. W.P.No.36923/2017

7. Now the writ petitioner by producing a photocopy

of the judgment dated 11-12-2018 passed by the first

appellate Court in M.A.No.15/2016, has shown that the

appeal filed by the defendant No.1 in O.S.No.6/2016

through Misc.Appeal No.15/2016, challenging the order of

temporary injunction has been dismissed with cost and thus

the order of temporary injunction dated 19-10-2016 passed

in O.S.No.6/2016 by the Trial Court-I has stood confirmed.

Thus, the reason of the alleged pendency of Misc. Appeal

though is no more available to justify the impugned order,

but the fact remains that, as on the date of passing of the

impugned order in the originalsuit, the pendency of such an

appeal before the first appellate Court cannot be ignored.

Therefore, if at all the plaintiff in O.S.No.6/2016 who is said

to be enjoying as on date the interim order of temporary

injunction dated 19-10-2016 is still suffering the alleged

interference by the defendants therein, then, she may be

given a liberty to file a similar application afresh, in which

an event, the Trial Court-I would be required to dispose of W.P.No.36922/2017 c/w. W.P.No.36923/2017

the said application, in accordance with law, however, duly

giving opportunity to the defendants therein to file their

objections, if any, to the said application.

8. So far as Writ Petition No.36923/2017 is

concerned, admittedly, the plaintiff in O.S.No.180/2014 had

filed an I.A.No.III/2014, under Order XXXIX, Rules 1 and 2

of the CPC, at the earliest point of time. However for the

reasons best known to both parties in the suit, the said I.A.

remained pending, which, according to the plaintiff

(respondent No.1 herein), had constrained him to file a

memo, seeking early disposal of the said I.A., which has

invited the impugned order dated 22-07-2017 in

W.P.No.36923/2017.

9. In the impugned order, the Trial Court-II has only

stated that though the recording of evidence has

commenced in the said original suit, but the very purpose of

filing an I.A for the interim relief of temporary injunction

was to prevent the alleged loss, damage, or defeating the W.P.No.36922/2017 c/w. W.P.No.36923/2017

rights of the party during the pendency of the suit and that

the said I.A. can be heard and disposed of at any stage of

the suit. With the said observation, the Trial Court -II

proceeded to pass an order allowing the memo and

permitting the parties to make their submission on the

application filed under Order XXXIX, Rules 1 and 2 of the

CPC, in that suit.

10. Since the Trial Court has rightly observed that

there is no bar for filing such an application under Order

XXXIX, Rules 1 and 2 of the CPC, similarly no bar also can

be laid for taking up the matter for disposal of the long

pending I.A. filed under Order XXXIX, Rules 1 and 2 of the

CPC also, though the recording of the evidence in the suit is

said to have reached its advanced stage. Hence, I do not

find any error in the impugned order dated 22-07-2017 in

the said writ petition, warranting any interference at the

hands of this Court.

[

Accordingly, the Writ Petition No.36922/2017 is

disposed of, reserving liberty to the plaintiff in W.P.No.36922/2017 c/w. W.P.No.36923/2017

O.S.No.6/2016 to file an application afresh under Section

151 of the Code of Civil procedure, 1908, seeking Police

protection by restraining the defendants from interfering in

her alleged peaceful possession of the property, provided

the circumstance warrants her to file a similar application,

and also subject to the proof of the alleged interference by

them, in which an event, as already observed above, the

defendants therein shall have an opportunity to place their

objections, if any, to the said application.

Writ Petition No.36923/2017 stands dismissed as

devoid of merits.

In view of disposal of the main writ petition, pending

I.A.No.I/2017 in Writ Petition No.36922/2017 does not

survive for consideration.

Sd/-

JUDGE

BMV*