Sri. Ramappa vs Sri. Shanakarappa
2023 Latest Caselaw 9312 Kant

Citation : 2023 Latest Caselaw 9312 Kant
Judgement Date : 5 December, 2023

Karnataka High Court

Sri. Ramappa vs Sri. Shanakarappa on 5 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                            NC: 2023:KHC:43936
                                                          WP No. 21228 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                           BEFORE

                           THE HON'BLE MR JUSTICE S.G.PANDIT

                        WRIT PETITION NO. 21228 OF 2023 (GM-CPC)

                   BETWEEN:

                   SRI. RAMAPPA
                   S/O LATE BAJJAPPA,
                   AGED ABOUT 58 YEARS,
                   R/O KURUBAVANDLAPALLI VILLAGE,
                   CHELUR HOBLI,
                   BAGEPALLI TALUK,
                   CHIKKABALLAPUR DISTRICT-561207.
                                                                  ...PETITIONER
                   (BY SRI. MANMOHAN P. N., ADV.)

                   AND:

                   1.   SRI. SHANAKARAPPA
Digitally signed        S/O LATE AVULAAA CHIKKA NANJAPPA,
by A K                  AGED ABOUT 55 YEARS,
CHANDRIKA
                        R/O KURUBAVANDLAPALLI VILLAGE,
Location: High
Court Of                CHELUR HOBLI,
Karnataka               BAGEPALLI TALUK,
                        CHIKKABALLAPUR DISTRICT-561207.

                   2.   SRI CHIKKARAVANAPPA
                        S/O LATE AVULAAA CHIKKA NANJAPPA,
                        AGED ABOUT 53 YEARS,
                        R/O KURUBAVANDLAPALLI VILLAGE,
                        CHELUR HOBLI, BAGEPALLI TALUK,
                        CHIKKABALLAPUR DISTRICT-561207.
                                                               ...RESPONDENTS
                   (BY SRI.KALYAN R., ADV. FOR R1 & R2)
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                                              NC: 2023:KHC:43936
                                          WP No. 21228 of 2023




     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 05.06.2023 PASSED ON IA NO.1/2023 FILED
U/O 39 RULE 1 AND 2 RWS 151 IF CPC PASSED BY THE CIVIL
JUDGE AND JMFC AT BAGEPALLI IN OS NO. 129/2023
(PRODUCED AS ANNX-P) AND CONSEQUENTLY ALLOW IA
NO.1/2023 FILED BY THE PETITIONER UNDER ORDER 39 RULE
1 AND 2 OF CPC AS PRAYED FOR AND ETC.

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

                               ORDER

The petitioner, plaintiff in O.S.No.129/2023 on the

file of Civil Judge and JMFC, Bagepalli and appellant in

M.A.No.29/2023 on the file of Senior Civil Judge, Bagepalli

is before this Court, questioning the order dated

05.06.2023 rejecting I.A.No.1/2023 filed under Order

XXXIX Rules 1 and 2 of CPC and confirmed in M.A. under

judgment dated 11.08.2023.

2. Heard learned counsel Sri.P.N.Manmohan for

petitioner and learned counsel Sri.R.Kalyan for

respondents. Perused the writ petition papers.

3. Learned counsel for the petitioner/plaintiff would

submit that the suit of the petitioner/plaintiff is one for

NC: 2023:KHC:43936

permanent injunction in respect of the suit schedule

property. Along with the suit, I.A.No.1 is filed under Order

XXXIX Rules 1 and 2 of CPC with a prayer to restrain the

defendants i.e. respondents herein from interfering with

the construction of petitioner/plaintiff in the application

schedule property. The trial Court rejected the said

application and the same was confirmed by the Appellate

Court, against which, the present writ petition is filed.

4. On 23.09.2023, this Court passed a detailed interim

order directing the respondents not to interfere with the

construction of house by the petitioner in schedule "B"

property till the next date of hearing. The interim order

makes it clear that the construction of the petitioner's

building is subject to the outcome of the present writ

petition and the petitioner shall not claim any equity. The

said interim order is continued from time to time.

5. The petitioner has filed an affidavit dated

05.12.2023. Paragraphs 2 and 3 of the said affidavit

reads as follows:

NC: 2023:KHC:43936

"2. I state that this Hon'ble Court vide order dated 23.09.2023 granted interim order directing he respondents not to interfere with the construction of house by the petitioner in the schedule "B" property till next date of hearing. I state that as per order of this Hon'ble Court, I am constructing house in the schedule "B"

property.

3. I state that subject to outcome of suit in O.S.No.129/2023 pending before Civil Judge & JMFC at Bagepalli, I will not claim any equity on the house constructed in the schedule "B" property."

The petitioner/plaintiff has undertaken that he would not

claim any equity on the house constructed in schedule "B"

property.

6. Learned counsel Sri.R.Kalyan for respondents No.1

and 2 would submit that in case, this Court is inclined to

accept the affidavit and permit the petitioner to proceed

with the construction, he prays for a direction to the trial

Court to dispose of the suit in an expeditious manner.

NC: 2023:KHC:43936

7. The suit is one for permanent injunction. The

petitioner has already commenced the construction in a

portion of the suit schedule property. This Court, by