Muttappa S/O. Hanamantappa ... vs Bheemappa S/O. Adiveppa Karjari @ ...
2023 Latest Caselaw 5091 Kant

                                                  -1-
                                                          NC: 2023:KHC-D:7996
                                                           WP No. 103828 of 2021




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 1ST DAY OF AUGUST, 2023

                                                BEFORE

                           THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

                              WRIT PETITION NO. 103828 OF 2021 (GM-CPC)

                      BETWEEN:

                      1.   MUTTAPPA S/O. HANAMANTAPPA KERUDI,
                           AGE: 46 YEARS, OCC: AGRICULTURE,
                           R/O: KURUBAGONDA,
                           TQ: AND DIST: HAVERI-581110.

                      2.   SURESH S/O. HANAMANTAPPA KERUDI,
                           AGE: 40 YEARS, OCC: AGRICULTURE,
                           R/O: KURUBAGONDA,
                           TQ: AND DIST: HAVERI-581110.

                      3.   DURAGAPPA S/O. DURAGAPPA KERUDI,
                           AGE: 39 YEARS, OCC: AGRICULTURE,
                           R/O: KURUBAGONDA,
                           TQ: AND DIST: HAVERI-581110.

                      4.   HANAMANTAPPA S/O. DURAGAPPA KERUDI,
                           AGE: 46 YEARS, OCC: AGRICULTURE,
YASHAVANT
NARAYANKAR
                           R/O: KURUBAGONDA,
                           TQ: AND DIST: HAVERI-581110.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: High
Court of Karnataka,
Dharwad                                                            ...PETITIONERS
                      (BY SRI GIRISH V. BHAT, ADVOCATE)

                      AND:

                      BHEEMAPPA S/O. ADIVEPPA
                      KARJARI @ VADDAR,
                      AGE: 62 YEARS, OCC: AGRICULTURE,
                      R/O: KURUBAGONDA,
                      TQ: AND DIST. HAVERI-581110.
                                                                   ...RESPONDENT
                      (BY SRI MADAN MOHAN KHANNUR, ADVOCATE)
                              -2-
                                    NC: 2023:KHC-D:7996
                                       WP No. 103828 of 2021




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR A
DIRECTION OR AN APPROPRIATE ORDER IN THE NATURE OF
CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY THE
LEARNED ADDITIONAL SENOR CIVIL JUDGE HAVERI DATED
14.10.2020 PASSED IN MISC.APPEAL NO.1/2020 VIDE ANNEXURE-A
AS ILLEGAL.

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

                           ORDER

The captioned writ petition is filed by 1st defendant

feeling aggrieved by the divergent order of the Courts

below, wherein the Appellate Court has allowed the appeal

filed by the plaintiff and has granted injunction in favour of

the respondent/plaintiff. The 1st defendant is before this

Court questioning the order passed by the Appellate Court

in Miscellaneous Appeal No.1/2020 on the file of Additional

Senior Civil Judge, Haveri, granting injunction against the

present petitioner.

2. The respondent/plaintiff has instituted a bare

suit for injunction in O.S.No.162/2020, on the file of

learned Principal Civil Judge and JMFC, Haveri and an

application is filed under Order XXXIX Rule 1 and 2 of

Code of Civil Procedure seeking injunction. The trial Court

NC: 2023:KHC-D:7996 WP No. 103828 of 2021

referring to prima-facie material evidence found that

respondent/plaintiff has suppressed the partition suit filed

by petitioner in O.S.No.522/2019. Therefore, declined to

grant injunction.

3. The Appellate Court however placing reliance on

the judgment of Hon'ble Apex Court rendered in the case

of Sunkamma (D) by Lrs Vs S.Pushparaj (D) by Lrs

reported in 2018 SAR (Civil) 208, was of the view that

it is only factum of possession that requires to be

examined in a injunction suit. Referring to prima-facie

material, the Appellate Court has granted the injunction.

4. Heard learned counsel for the petitioners and

learned counsel appearing for respondent.

5. The petitioner has filed a suit for partition and

separate possession in O.S.No.522/2019. The present

respondent/plaintiff is restrained by way of an interim

injunction from alienating the suit schedule property.

Pending consideration of partition suit, the

NC: 2023:KHC-D:7996 WP No. 103828 of 2021

respondent/plaintiff files a bare suit for injunction and

seeks interim injunction. I am of the view that the order of

Appellate Court requires interference. The Appellate Court

failed to note that if a partition suit is pending in

O.S.No.522/2019, the respondent/plaintiff could not

maintain a bare suit for injunction by suppressing the

pendency of a partition suit. More particularly, when there

is an interim injunction against respondent/plaintiff from

alienating the suit schedule property. The fact that

respondent/plaintiff has suppressed the pendency of a

partition suit, the equity, if any does not lean in favour of

respondent/plaintiff. The question as to whether the suit

property is joint family ancestral property or self-acquired

property of father of the respondent/plaintiff needs

complete adjudication in pending partition suit bearing

O.S.No.522/2019. Therefore, the order passed by the

Appellate Court suffers from serious illegality. The

Appellate Court while reversing the order of the trial Court

has virtually exceeded in its jurisdiction. It is trite law that

merely because a second view is possible, the Appellate

NC: 2023:KHC-D:7996 WP No. 103828 of 2021

Court under Order 43 of CPC cannot reverse an order of

the trial Court on an application filed under Order XXXIX of

CPC unless the order challenged suffers from serious

perversity. The trial Court has declined to exercise judicial

discretion and grant discretionary relief of interim

injunction. Rejection is supported by cogent reasons. For

the foregoing reasons, I proceed to pass the following:

ORDER

i) The writ petition is allowed.

ii) The order passed by the Appellate Court is

hereby set-aside.

iii) Any observation made by the Courts below and

this Court shall not influence the trial Court. All

contentions of the parties are kept open. Learned judge

shall expedite the partition suit pending in

O.S.No.522/2019.

Sd/-

JUDGE AM/-