Maiboob S/O. Rahimansab ... vs M/S.V.R.Patil Vividh Vidyuth ...
2023 Latest Caselaw 1839 Kant

                                               -1-
                                                       WP No. 103993 of 2021




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                            DATED THIS THE 14TH DAY OF MARCH, 2023
                                             BEFORE
                        THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
                           WRIT PETITION NO. 103993 OF 2021 (GM-CPC)
                   BETWEEN:
                         MAIBOOB S/O. RAHIMANSAB NADAGOUDA
                         AGE :42 YEARS, OCC: AGRICULTURE,
                         R/O. VIDYA NAGAR KASAB,
                         TAVARGERA, PIN-583221
                         TQ: KUSHTAGI, DIST: KOPPAL
                                                                ...PETITIONER
                   (BY SRI. D. L. LADKHAN, ADVOCATE)
                   AND:
                   1.    M/S. V.R.PATIL VIVIDH VIDYUTH NIRMAN
                         PRIVATE LTD.,
                         HAVING ITS REGISTERED OFFICE,
                         AT HOSALINGAPURA MUNIRABAD-583233.

                   2.    KARNATAKA POWER TRANSMISSION
                         CORPORATION LTD.,
                         REPRESENTED BY ITS EXECUTIVE ENGINEER,
Digitally signed
by JAGADISH T R          MAJOR WORKS DIVISION KOPPAL.
Location: High
Court of                 DISTRICT: KOPPAL.
Karnataka,
Dharwad                                                       ...RESPONDENTS
                   (BY SRI. B.S. KAMATE, ADVOCATE FOR C/R2)
                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
                   227 OF CONSTITUTION OF INDIA PRAYING TO BE PLEASED TO
                   ISSUE WRIT OF CERTIORARI QUASHING THE ORDER PASSED BY
                   LEARNED SENIOR CIVIL JUDGE, KUSHTAGI IN RA.NO.8/2018,
                   DATED 07-08-2021, PRODUCED AT ANNEXURE-C, TO THE WRIT
                   PETITION; BE PLEASED TO ISSUE ANY ORDER OR WRIT OR
                   DIRECTION TO RESPONDENTS NOT TO ENCROACH UPON THE
                   SUIT PROPERTY OF PLAINTIFF, TILL THE DISPOSAL OF R.A.NO.
                   8/2020 ON THE FILE OF SENIOR CIVIL JUDGE, KUSHTAGI, IN THE
                   INTEREST OF JUSTICE.
                                       -2-
                                                    WP No. 103993 of 2021




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

                                   ORDER

The captioned writ petition is filed by the plaintiff

feeling aggrieved by the order passed by the Appellate Court

on an application filed under Order XLI Rule 5 of the Code of

Civil Procedure, 1908, (for short "CPC") wherein the

Appellate Court has rejected the application and declined to

grant stay of execution and operation of the judgment and

decree passed by the Court at the first instance.

2. The plaintiff instituted a suit for injunction

simplicitor against the Karnataka Power Transmission

Corporation Limited. The said suit is dismissed. Feeling

aggrieved by the said judgment and decree of the Trial

Court, the plaintiff preferred an appeal. In appeal, the

Appellate Court while considering the application filed in

I.A.No.1 has exhaustively dealt with the grievance referring

to the judgments rendered by this Court in the case of

B.H.Narayan Vs. The KPTCL and others1 and the

ILR 2010 KAR 336

WP No. 103993 of 2021

judgment in W.P.No.101921-922/2018 and provisions of

Indian Telegraph Act, 1985. The Appellate Court was not

inclined to grant interim order taking cognizance of the

investment made by the Corporation. The Appellate Court

was of the view that if a stay is granted at this juncture, the

public at large will be put to irreparable loss and therefore,

I.A. No.1 was rejected and the matter was ordered to be

listed on 25.08.2021 to address arguments on main appeal.

3. This Court is not inclined to interfere with the

order passed by the Court below. Though it is a trite law that

an appeal under Section 96 of CPC is statutory appeal and

appellant is entitled to seek redressal of all points which

were urged before the Court at the first instance, both on

question of facts and on question of law, but however, in the

present case on hand, this Court is of the view that the said

principles are not applicable to the present case on hand.

The dictum laid down by the Apex Court in the Mool Chand

Yadav and another Vs. Raza Buland Sugar Company

Limited, Ramapur and others2 is not applicable to the

(1982) 3 SCC 484

WP No. 103993 of 2021

present case on hand. If a bare suit for injunction is

dismissed, the plaintiff could not have moved an application

under Order XLI Rule 5 of CPC. Be that as it may. If the

Appellate Court is insisting the plaintiff to go on with the

arguments on main appeal vide its order dated 25.08.2021,

this Court is unable to understand as to why the plaintiff is

not prosecuting the appeal on merits. It would be rather

advisable for plaintiff to prosecute the appeal as this Court is

not inclined to interfere with the order under challenge and

hence, the writ petition being devoid of merits, stands

dismissed.

4. In view of disposal of the petition, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

SD/-

JUDGE

YAN/CT-MCK