M D Razak @ Rajjabbali vs Chandrashekar S/O Basappa
2023 Latest Caselaw 1038 Kant

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            IN THE HIGH COURT OF KARNATAKA

                   KALABURAGI BENCH

        DATED THIS THE 18TH DAY OF JANUARY, 2023

                        BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

       WRIT PETITION NO.200109 OF 2023 (GM - CPC)

BETWEEN:

M.D. RAZAK @ RAJJABBALI
S/O. SHAMIDSAB TAMBAKU
AGED ABOUT 70 YEARS
OCC: AGRICULTURE
R/O. KHADARIYA COLONY, MUDGAL VILLAGE
TQ: LINGASUGUR, DIST: RAICHUR - 584125

                                   .... PETITIONER
(BY SRI GANESH S.KALABURAGI, ADVOCATE)

AND:

1.     B.SANGAPPA
       S/O. LATE BASAPPA
       AGED ABOUT: 76 YEARS
       OCC: TAX CONSULTANT & AGRICULTURE
       R/O H.NO.6-1-1906/A-149
       ADARSH COLONY
       SINDHANUR, DIST: RAICHUR-584128

2.     SMT.SHANTA
       W/O. LATE JAMBUNATHA ANGADI
       AGED ABOUT: 65 YEARS
       OCC: AGRICULTURE
       R/O. KAMALAPUR VILLAGE, TQ: HOSPET
       DIST: BELLARY - 583221.
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3.   CHANDRASHEKAR
     S/O. LATE BASAPPA
     AGED ABOUT: 61 YEARS
     OCC: PRIVATE SERVICE
     R/O. C/O. JAMBUNATH
     NO.508, MTB AREA, 20 TH CROSS
     JAYANAGAR, 5TH BLOCK
     BENGALURU - 560 041

4.   ANIL KUMAR
     S/O. LATE BASAPPA
     AGED ABOUT: 57 YEARS
     OCC: AGRICULTURE
     R/O. PATIL COLONY, BAGALKOT ROAD
     MUDGAL, TQ: LINGASUGUR
     DIST: RAICHUR - 584125
                                  ... RESPONDENTS

(BY SRI SHIVANAND PATIL, ADVOCATE FOR C/R1)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED   ORDER   DATED:29.11.2022   ON   I.A.NO.5,
PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC
LINGASUGUR IN O.S. NO.10/2019 VIDE ANNEXURE-E AND
REJECT THE INTERIM APPLICATION NO.5 AND ETC.


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

Heard Sri.Ganesh.S.Kalaburagi, the learned

counsel, appearing for the petitioner and Sri.Shivanand

Patil, learned counsel appearing for caveator/respondent

No.1.

2. The petitioner aggrieved by the order of the

trial Court in O.S.No.10/2019 on the file of Additional

Civil Judge, Lingasugur.

3. In terms of the impugned order the

application filed under Section 151 of Code of Civil

Procedure in O.S.No.10/2019 with a prayer to club the

suit with O.S.No.116/2015, is allowed.

4. Learned counsel for the petitioner would

submit that in the said suit one more application is also

filed at I.A.No.6, wherein the application is filed invoking

Section 10 of Code of Civil Procedure to stay further

proceedings in O.S.No.10/2019. And the same was

rejected. Both the orders are under challenge.

5. On perusal of the averments made in the

petition, same reveal that O.S. No.116/2015 is filed for

relief of permanent injunction. In the said suit counter

claim is filed by the defendant claiming relief of specific

performance of the contract in respect of the property

involved in the said suit.

6. O.S. No.10/2019 is filed for permanent

injunction by the plaintiff in O.S. No.116/2015, along

with other members of the family. Earlier the

O.S.No.116/2015 was filed by only one plaintiff and the

said suit was withdrawn. Though the suit was

withdrawn, the counter claim is pending consideration.

Since the property involved in both counter claim and

the subsequent suit is one and the same, an application

is filed by the defendant who has filed a counter claim,

to club both the cases.

7. The subject matter of the counter claim and

subsequent suit is one and the same and the same is an

admitted fact. The counter claim is filed for specific

performance of contract and another suit is filed for

permanent injunction. However, in the suit for

permanent injunction, there are other family members

of the original plaintiff in O.S.No.116/2015. That is the

only distinguishing factor. Under these circumstances,

the trial Court is of the view that instead of staying the

proceedings in O.S.No.10/2019, it is desirable to club

both the cases and to record common evidence and to

dispose of the counter claim and the subsequent suit by

a common judgment.

8. This Court has perused the impugned order

and this Court does not find any reasons to interfere

with the order passed by the trial Court which has

passed the order keeping in mind the convenience of the

parties as well as the Court in deciding the matter where

the subject matter is common. It also helps to avoid

conflicting views.

9. Under these circumstances, this Court is of

the view that no interference is required in exercise of

powers conferred under Article 227 of the Constitution of

India in the order passed by the trial Court

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

GVP