Sri H B Santhosh Kumar Jain vs Smt K Nirmala
2023 Latest Caselaw 1811 Kant

                                                      -1-
                                                             MFA No. 8555 of 2022




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 13TH DAY OF MARCH, 2023

                                                    BEFORE
                           THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                        MISCELLANEOUS FIRST APPEAL NO. 8555 OF 2022 (CPC)


                   BETWEEN:

                   1.     SRI H B SANTHOSH KUMAR JAIN
                          S/O H BAHUBALI,
                          AGED ABOUT 58 YEARS

                   2.     SMT CHAYA SANTHOSH KUMAR H
                          W/O H.B. SANTHOSH KUMAR JAIN,
                          AGED ABOUT 54 YEARS,

                          BOTH ARE R/ATNO.72/15,
                          4TH CROSS ROAD, AJADNAGARA,
                          CHAMARAJPETE,
                          BENGALURU-560018.
                                                                     ...APPELLANTS
                   (BY SRI. S.S. NAGANAND, SENIOR ADVOCATE FOR
Digitally signed       SRI. SAGAR B B., ADVOCATE)
by CHANDANA
BM
Location: High     AND:
Court of
Karnataka          1.     SMT K NIRMALA
                          W/O K RAGHAVA RAO,
                          AGED ABOUT 52 YEARS,

                   2.     MR ASHOK KUMAR
                          S/O K.RAGHAVA RAO,
                          AGED ABOUT 30 YEARS,

                          BOTH ARE R/ AT NO.4321,
                          VBHBCS LAYOUT,
                          4TH PHASE, GIRINAGAR,
                                  -2-
                                            MFA No. 8555 of 2022




    BANASHANKARI 3RD STAGE,
    BENGALURU-560085.
                                                    ...RESPONDENTS
(BY SRI. PRAKASH M H., ADVOCATE FOR R1 & R2)

      THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 13.12.2022 PASSED ON I.A. NO.1/2022       IN O.S.NO.
7417/2022 ON THE FILE OF THE     XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, REJECTING I.A. NO.1 FILED UNDER
ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

      THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                              JUDGMENT

This appeal by the plaintiff is directed against the impugned

order dated 13.12.2022 passed on I.A.No.1/2022 filed under Order

XXXIX Rules 1 and 2 r/w Section 151 of CPC for injunction, in

O.S.No.7417/2022 pending on the file of the XXXIV Addl. City Civil

and Sessions Judge Court at Bengaluru.

2. I have heard the learned Senior counsel for the

appellants and learned counsel for the respondents perused the

materials placed on record.

3. The material on record discloses that the appellants-

plaintiffs instituted the aforesaid suit for permanent injunction and

other reliefs in relation to the suit schedule immoveable properties

MFA No. 8555 of 2022

by describing the same as vacant site bearing Nos.3652/238/1/02

& 03 in Ward No.160 of BBMP of Rajarajeshwari Nagar, Sub-

division, situated at Halagevaderahalli Village, Kengeri Hobli,

Bengaluru South Taluk.

4. The said suit is being contested by the respondents-

defendants who claim their right, title, interest and possession over

the sites described as Nos.384 and 385 situated in the 5 th phase of

Vishwabharathi Housing Complex Layout, BBMP Ward No.160,

Sachidananda Nagar, Halagevadeyarahalli, Kengeri Hobli,

Bangalore South Taluk, Bangalore, by tracing their title to the sale

deeds dated 30.07.1997 said to have been executed by the

Vishwabharathi House Building /Co-operative Society in favour of

their vendors, who are alleged to have executed sale deeds in

favour of the defendants on 30.05.2016. After hearing the parties,

the Trial Court proceeded to pass the impugned order dismissing

I.A.No.1/2022, aggrieved by which, the appellants-plaintiffs are

before this Court by way of the present appeal.

5. A perusal of the impugned order passed by the Trial

Court would indicate that the same is a cryptic, unreasoned, non-

speaking and laconic order passed by the trial court without

MFA No. 8555 of 2022

application of mind and not properly considering or appreciating the

pleadings and documents produced by both sides. Further, the trial

court failed to consider and appreciate that there was a dispute

regarding location and identity of the plaint schedule property

claimed by the appellants and the written statement schedule 'A'

and 'B' properties claimed by the respondents. It is also relevant to

note that the impugned order indicates that well settled principles

governing consideration of an application for temporary injunction

have not been taken into account by the trial court, which has

resulted in erroneous conclusion. Under these circumstances,

without expressing any opinion on the merits / demerits of the rival

contentions, I deem it just and appropriate to set aside the

impugned order and remit the matter back to the trial court for

reconsideration of I.A.No.1/2022 afresh in accordance with law.

6. In the result, I pass the following:-

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned order dated 13.12.2022 passed on

I.A.No.1/2022 filed under Order XXXIX Rules 1 and 2 r/w Section

151 of CPC in O.S.No.7417/2022 pending on the file of the XXXIV

MFA No. 8555 of 2022

Addl. City Civil and Sessions Judge Court, Bengaluru, is hereby set

aside.

(iii) The matter is remitted back to the trial court for

reconsideration of I.A.No.1/2022 afresh in accordance with law

bearing in mind the observations made in this order within a period

of fifteen days from the next date of hearing of the suit which is

posted on 20.03.2023 before the trial court.

Sd/-

JUDGE

KLY/SRL