Karnataka High Court
Smt K.N Savithramma vs Sri.K.N Vasantha on 19 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 3621 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 3621 OF 2023 (CPC)
BETWEEN:
1. SMT K.N SAVITHRAMMA
W/O LATE K K NEELAKANTAPPA
AGED ABOUT 86 YEARS
2. SMT PRAMILA
W/O LATE RAVISHANKAR K N
AGED ABOUT 50 YEARS
3. SRI SACHIN
S/O LATE RAVISHANKAR K N
AGED ABOUT 33 YEARS
4. SRI K N SATHISH
S/O LATE NEELAKANTAPPA
Digitally signed AGED ABOUT 60 YEARS
by ALL ARE R/O KODALIPETE MAIN ROAD
DHANALAKSHMI
MURTHY SOMWARPET TALUK
Location: High KODAGU DISTRICT-571231
Court of
Karnataka ...APPELLANTS
(BY SRI. THARANATH POOJARY, SENIOR COUNSEL FOR
SMT. VEENA T.N., ADVOCATE)
AND:
1. SRI.K.N VASANTHA
S/O LATE NEELAKANTAPPA K K
AGED ABOUT 64 YEARS
R/O KODALIPETE TOWN
SOMWARPET TALUK
KODAGU DISTRICT-571231.
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MFA No. 3621 of 2023
2. SRI K K SANTOSH
S/O LATE K A KOTTURAPPA
AGED ABOUT 45 YEARS
R/O HADYA VILLAGE
K HOSKOTE HOBLI, ALUR TALUK
HASSAN DISTRICT-573213.
3. SRI A B SOMASHEKARAPPA
S/O LATE BASAVARAJAPPA
AGED ABOUT 47 YEARS
R/O NO.2862, E BLOCK
13TH MAIN ROAD, 2ND STAGE
RAJAJINAGAR, BENGALURU-560010.
4. SMT S S LATHA
W/O A B SOMASHEKARAPPA
AGED ABOUT 40 YEARS
R/O NO.2862, E BLOCK, 13TH MAIN ROAD
2ND STAGE, RAJAJINAGAR
BENGALURU-560010.
5. SRI L M CHANDRESH
S/O L G MARULA SIDDAIAH
AGED ABOUT 46 YEARS
R/O KEREKERI VILLAGE
KODLIPET HOBLI, SOMWARPET TALUK
KODAGU DISTRICT-571231
6. SRI C R DHARSHAN
S/O C B RAJU
AGED ABOUT 36 YEARS
R/O CHIKKAKUNDA VILLAGE
KODLIPET HOBLI, SOMWARPET TALUK
KODAGU DISTRICT-571231
...RESPONDENTS
(BY SRI.BALAKRISHNA SHASTRY., ADVOCATE FOR R5 & R6:
NOTICE TO R1 TO R4 ARE D/W V/O DATED:18.11.2023)
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MFA No. 3621 of 2023
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SEC.151 OF CPC, AGAINST THE ORDER DATED:20.04.2023
PASSED ON IA NO.2 IN OS.NO.68/2021 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SOMWARPET, ALLOWING IA NO.2 FILED
U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by defendant Nos.1 to 4 under
Order XLIII Rule 1 (r) of the Code of Civil Procedure,
1908, challenging the order dated 20.04.2023 passed by
the Senior Civil Judge and JMFC, Somawarapete in
O.S.No.68/2021 on I.A.No.II filed by defendant Nos.5 and
6 under Order XXXIX Rules 1 and 2 of CPC whereby the
trial Court has allowed the said application filed by
defendant Nos.5 and 6.
2. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiffs have filed the suit for declaration and
permanent injunction. After service of summons, the
defendants appeared through their counsel. Defendant
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Nos.5 and 6 filed I.A.No.II under Order XXXIX Rule 1 and
2 of CPC seeking an order of temporary injunction
restraining the plaintiffs, their agents or person claiming
under them from interfering with the 5th and 6th
defendants peaceful possession and enjoyment of the suit
schedule property, till disposal of the suit. The trial Court,
after hearing the parties, has allowed the application filed
by defendant Nos.5 and 6 under Order XXXIX Rule 1 and 2
of CPC by the impugned order dated 20.04.2023. Being
aggrieved by the same, the plaintiffs are before this Court
in this appeal.
4. Sri Tharanath Poojary, learned Senior counsel
appearing for counsel Smt. Veena T. N., for the appellants
has contended that the application filed by defendant
Nos.5 and 6 under Order XXXIX Rule 1 and 2 of CPC
seeking an order of temporary injunction restraining the
plaintiffs from interfering into the suit schedule property,
is not maintainable. In support of his contention, he has
relied upon the judgment of Full Bench of this Court in the
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case of 'SMT. SHAKUNTHALAMMA AND OTHERS vs. SMT.
KANTHAMMA AND OTHERS reported in ILR 2014 KAR
6025'.
5. Per contra, Sri Balakrishna Shastry, learned counsel
appearing for respondent Nos.5 and 6 does not dispute the
proposition of law. However, he contended that defendants
can file a separate suit for injunction and they can seek for
temporary injunction under the provision of Order XXXIX
Rule 1 and 2 of CPC.
6. Heard the learned counsel for the parties. Perused
the appeal papers.
7. It is not in dispute that the plaintiffs have filed the
suit for declaration and permanent injunction. After service
of summons, defendant Nos.5 and 6 have filed I.A.No.II
under Order XXXIX Rule 1 and 2 of CPC seeking temporary
injunction restraining the plaintiffs from interfering in to
5th and 6th defendants peaceful possession and enjoyment
of the suit schedule property, till disposal of the suit. The
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trial Court, after hearing the parties, allowed the
application by the impugned order dated 20.04.2023.
8. The Division Bench of this Court in 'SMT.
SHAKUNTHALAMMA' (supra) has held as follows:
"33. The correct legal position as is clear from the
statutory provision is as under:
(i) Both the plaintiff and the defendant can maintain
an application under Order XXXIX Rule 1(a) of the
Code for the reliefs set out in the said provision;
(ii) Insofar as relief under Order XXXIX Rule 1(b) and
(c) is concerned, such a relief is available only to the
plaintiff and the defendant cannot maintain an
application for the said reliefs in a suit filed by the
plaintiff, irrespective of the fact that his right to such
relief arises either from the same cause of action or a
cause of action that arises subsequent to filing of the
suit.
However it is open to the defendant to maintain a
separate suit against the plaintiff and seek relief
provided under Order 39 Rule 1(b) and (c) of the
Code.
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(iii) In cases which do not fall under Order XXXIX
Rule 1 of the Code, the Court has the inherent
jurisdiction to grant the relief of injunction in its
discretion, if it is satisfied that such an order is
necessary to meet the ends of justice or to prevent
abuse of process of the court and nothing in this
Code shall limit or otherwise affect such inherent
power of the court."
9. In view of the above, the application filed by
defendant Nos.5 and 6 under Order XXXIX Rule 1 and 2 of
CPC seeking injunction in the suit filed by the plaintiffs is
not maintainable. The impugned order passed by the trial
Court is contrary to the provisions of Order XXXIX Rule 1
and 2 of CPC. Hence, the impugned order requires to be
set aside.
10. Accordingly, I pass the following order:
ORDER
a) The appeal is allowed.
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b) The order dated 20.04.2023 passed by the
Senior Civil Judge and JMFC, Somawarapete in
O.S.No.68/2021 on I.A.No.II, is set aside.
Sd/-
JUDGE
HA
