Karnataka High Court
Sri.B.N. Ravikumar vs Sri. B.N. Gajendra on 23 June, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:21799
MFA No. 1333 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.1333 OF 2023 (CPC)
BETWEEN:
SRI B.N. RAVIKUMAR,
S/O SRI T N NAGALINGAIAH
AGED ABOUT 40 YEARS
R/AT NO 7, 1ST CROSS
RAJAPPA LAYOUT
SUBHASHNAGARA
NELAMANGALA -562123
BENGALURU RURAL DISTRICT
...APPELLANT
(BY SRI. NAGAIAH, ADVOCATE)
Digitally signed
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI. B.N. GAJENDRA,
S/O SRI T N NAGALINGAIAH
AGED ABOUT 36 YEARS
C/O M/S GAJA ELECTRICALS
NO 2119, DEVANGA BEEDI
NELAMANGALA TOWN
NELAMANGALA 562123
BENGALURU RURAL DISTRICT
2. SRI T N NALINGAIAH
S/O LATE NINGAIAH
-2-
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MFA No. 1333 of 2023
AGED ABOUT 64 YEARS
R/AT TUYALAHALLI VILLAE
MAYASANDRA HOBLI
TURUVEKERE TALUK
TUMAKURU DISTRICT
...RESPONDENTS
(BY SRI C M NAGABHUSHAN, ADVOCATE FOR
SRI GANESH H KEMPANNA, ADVOCATE FOR R1;
R2 IS SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151
OF CPC, AGAINST THE ORDER DT. 12.09.2022 PASSED
ON IA NO.1 IN O.S.NO.365/2021 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
NELAMANGALA AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated
12.09.2022 passed on I.A.No.1 in O.S.No.365/2021 on the
file of the I Additional Senior Civil Judge and JMFC,
Nelamangala.
2. This appeal is listed for admission. Heard the
learned counsel appearing for the respective parties.
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MFA No. 1333 of 2023
3. The factual matrix of the case of the plaintiff
before the Trial Court that the property belongs to the
family of the plaintiff and defendants and the plaintiff has
filed the suit for the relief of partition and separate
possession of the suit schedule properties and also filed an
application praying to restrain defendant No.2 from
alienating the suit schedule properties and the Trial Court
at the first instance granted exparte temporary injunction
and thereafter the appellant herein who is defendant No.2
appeared before the Trial Court and filed the written
statement and adopted the same as objection to I.A.No.1
and steps was not taken against defendant No.1 who is
the father of the plaintiff and defendant No.2 hence,
interim order was extended. Thus, an application was filed
in I.A.No.4 under Section 151 of CPC and objections to
I.A.No.4 also filed but the Trial Court passed an order on
I.A.No.1 and hence, the present appeal is filed challenging
the order passed on I.A.No.1.
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MFA No. 1333 of 2023
4. The contention of the counsel of the appellant
that without hearing him on I.A.No.1, the Trial Court has
passed an order on I.A.No.1 and the counsel also brought
to notice of this Court that the Trial Court while passing
the order in paragraph 8 mentioned that heard the counsel
for the plaintiff and order has been passed on I.A.No.1.
The counsel also brought to notice of this Court to the
order sheet wherein an interlocutory application was filed
on 25.08.2022 and same was numbered as I.A.No.4 filed
under Section 151 of CPC and the case was set down for
filing the objections to I.A.No.4 on 29.08.2022 and that on
29.08.2022, the objection was filed and posted the matter
for orders but order has been passed on I.A.No.1 and the
order sheet does not disclose that this appellant or the
plaintiff were heard on I.A.No.1.
5. The counsel for the respondent No.1 would
submits that while passing the order, the Trial Court in
paragraph 11 taken note of the contention of defendant
No.2 that the suit schedule properties are the self-acquired
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MFA No. 1333 of 2023
property acquired out of the income of contract work in
the name and style of Gaja Contractors hence, the counsel
submits that the contention of defendant No.2 was also
considered while passing the order on I.A.No.1 and same
is passed on merits and fairly admits that in the order
sheet, nowhere, it is mentioned that heard on I.A.No.1.
6. Heard the submissions of the respective
counsel. The records discloses that earlier an exparte
temporary injunction has been granted and thereafter
against defendant No.1, suit summons was not served and
steps was not taken hence, the interim order was not
extended. The order sheet also reveals that an application
was filed for extension for interim order but the same was
not extended and I.A.No.4 was filed on 25.08.2022 and
when the case was set down for objection to I.A.No.4,
objection was filed on 29.08.2022 and on the same day,
the Trial Court heard the matter on I.A.No.4 but order was
passed on I.A.No.1 and nowhere in the order sheet it is
mentioned that heard the argument of the plaintiff or
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MFA No. 1333 of 2023
defendant No.2 on I.A.No.1. Hence, the very contention
of the counsel for respondent No.1 that matter was heard
on I.A.No.1 cannot be accepted. Apart from that in
paragraph 8 of the impugned order it is mentioned that
heard the counsel for the plaintiff only and instead of
passing the order on I.A.No.4, passed an order on
I.A.No.1 without giving an opportunity. Hence, the
impugned order has to be set aside and the matter has to
be remanded to the Trial Court to consider I.A.No.1 afresh
by giving an opportunity to the parties and consider the
same on merits without influenced by the observation
made by this Court while considering I.A.No.1 on merits.
7. The counsel for respondent No.1 would submits
that in the meanwhile the appellant herein has sold item
No.2 of the property hence, there must be an order of
status quo. The appellant herein also not disputed the
said fact that he has sold the item No.2 of the property.
When such being the case, it is appropriate to direct the
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MFA No. 1333 of 2023
parties to maintain status quo till consideration of I.A.No.1
on merits by the Trial Court.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is allowed.
The impugned order dated 12.09.2022 passed on
I.A.No.1 in O.S.No.365/2021 is set aside.
The parties are directed to maintain status quo till
consideration of I.A.No.1 on merits by the Trial Court.
The Trial Court is also directed to dispose of I.A.No.1
within a period of one month from today. The respective
counsel appearing for the parties are directed to assist the
Trial Court in disposal of I.A.No.1 within the stipulated
time.
Sd/-
JUDGE
SN
