Aquhila Khanum vs Holalkere Town Panchayath
2022 Latest Caselaw 5666 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE E.S.INDIRESH

            W.P. NO.2183 OF 2022 (GM-CPC)

BETWEEN

AQUHILA KHANUM
AGED ABOUT 71 YEARS
D/O SHAIK ABDUL SAB
PRESENTLY R/AT
SANTHEPET
CHITRADURGA - 577501
                                          ...PETITIONER
(BY SRI AJAY RAO, ADVOCATE)

AND

1. HOLALKERE TOWN PANCHAYATH
BY ITS CHIEF OFFICER
HOLALKERE TOWN
CHITRADURGA DISTRICT -577501

2. ABIDABI
W/O KALEEL BAIG
AGED ABOUT 62 YEARS
AGRICULTURIST
R/O GOWRAMMANAHALLI VILLAGE
BHARAMSAGARA HOBLI
CHITRADURGA TALUK AND DISTRICT - 577501

3. MAIMUNNISA
W/O NOORULLA KHAN
AGED ABOUT 60 YEARS
                            2




R/O SANTHEPET
CHITRADURGA - 577501

4. MEHARUNNISA
W/O SYED MEHEBOOB SAB
AGED ABOUT 58 YEARS
R/O BEHIND BASAVESHARA TALKIES
CHITRADURGA - 577501

5. FIROZUNNISA
W/O H HUSSAIN SAB
AGED ABOUT 56 YEARS
R/O RAILWAY QUARTERS
BHDRAVATHI - 577598

6. MOHAMMED DHASTAGIR @ AMEERJAN
S/O SHEIR ABDULLA
AGED ABOUT 68 YEARS
AGRICULTURIST
R/O MOSQUE MOHALLA
HOLALKERE TOWN
CHITRADURGA DISTRICT - 577501

7. MOHAMMED NOORULLA
S/O SHEIK ABDULL
AGED ABOUT 64 YEARS
R/O MOSQUE MOHALLA
HOLALKERE TOWN
CHITRADURGA DISTRICT - 577501
                                         ....RESPONDENTS
(
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING
THE IMPUGNED ORDER DATED 24.12.2021(AT ANNEXURE-A) ON
IA NO.13,FILED BY THE PETITIONER UNDER SECTION 10 READ
WITH    SECTION    151    OF   THE   CODE    OF    CIVIL
PROCEDURE,1908,IN OS.NO.50 OF 2012 ON PENDING ON THE
FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE (JR.DIV),
HOLALKERE.
                                  3




    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:

                              ORDER

This Writ Petition is filed by defendant No.5 in Original Suit

No.50 of 2012 , on the file of the Principal Civil Judge and JMFC,

Holalkere, challenging the order dated 24.12.2021, dismissing

IA.13.

2. Brief facts are that the plaintiff has filed suit for

permanent injunction against the defendants in Original Suit No.

50 of 2012 on the file of the trial Court, and in the said suit the

defendants entered appearance and contested the suit. In the

meanwhile, the petitioner/defendant No.5, has filed IA.13 under

Section 10 read with Section 151 of Code of Civil Procedure,

seeking stay of the proceedings, on the ground that the

defendants have filed Original Suit No.48 of 2004 before the

Senior Civil Judge, Holalkere and in the said suit, the plaintiff has

sought for counter claim. Original Suit No.48 of 20004 was

dismissed by the trial Court and feeling aggrieved by the same,

the plaintiffs have preferred RA No.15 of 2012 on the file of

Additional District and Sessions Judge, Chitradurga. The First

Appellate Court, after considering the material on record,

allowed the appeal, consequently, set aside the judgment and

decree passed in Original Suit No.48 of 2004. Being aggrieved by

the same, defendants in the present suit have preferred RSA No.

2111 of 2012 before this court and same is pending

consideration before this Court. It is the case of the

petitioner/defendant No.5 that the subject matter of the suit in

both the suits are one and same and as such, the later suit

requires to be stayed. The said application filed by defendant

No.5 was resisted by the plaintiff before the trial Court and trial

Court by impugned order dated 24.12.2021, dismissed IA.13.

Feeling aggrieved by the same, defendant No.5 has presented

this Writ Petition.

3. I have heard Sri Ajay Rao, learned counsel appearing

for the petitioner, who argued that, issues and subject matter in

both the suits i.e. in Original Suit Nos. 48 of 2004 and 50 of

2012 are identical and therefore, if the Original Suit No.50 of

2012 is allowed to be continued, the judgment rendered in

same having a bearing on the former suit i.e. in Original Suit

No.48 of 2004. Accordingly, he sought interference in this Writ

Petition.

4. Having heard the learned counsel appearing for the

petitioner, I carefully considered the prayer made in the Original

Suit Nos.48 of 2004 and 50 of 2012. Having taken note of the

fact that defendants have preferred an appeal before this Court

and same is pending consideration in RSA No.2111 of 2012 and

the fact remains that, the grounds urged in both the suits by

the respective plaintiffs are based on the different contentions

and that apart, the plaintiff has preferred the counter claim on

the suit instituted by the defendants and in that view of the

matter, I am of the view that, the trial Court is justified in

rejecting IA.13 filed by defendant No.5. Accordingly, writ petition

is dismissed as devoid of merits.

Sd/-

JUDGE

SB