Sri M Y Puttappa vs Mr Krishnamurthy
2023 Latest Caselaw 2110 Kant

                                                      -1-
                                                            WP No. 2475 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 31ST DAY OF MARCH, 2023

                                                   BEFORE
                       THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                              WRIT PETITION NO. 2475 OF 2023 (GM-CPC)


                      Between:

                      1.    Sri M.Y.Puttappa
                            Aged about 62 years,
                            S/o. Late Patel M.Yerrappa

                      2.    Mr. M.V.Ravi
                            Aged about 37 years,
                            S/o Late Venkataronappa

                      3.    Mr. Manjunath
                            Aged about 27 years,
                            S/o M.Y.Puttappa

                      4.    Mrs. Rukmanamma
Digitally signed by         Aged about 47 years,
SRIDEVI S
                            D/o M.Y.Puttappa
Location: HIGH
COURT OF
KARNATAKA                   All are Residing at
                            Machavalahalli Village,
                            Kasaba Hobli,
                            Gudibande Taluk-561209
                                                                    ...Petitioners
                      (By Sri P.Mohana Chandra, Advocate)

                      And:

                      Mr. Krishnamurthy
                      Aged about 49 years,
                      S/o. Late Doddajangamaiah
                      R/at Machavalahalli Village,
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                                                   WP No. 2475 of 2023




Kasaba Hobli,
Gudibande Taluk-561209
                                                           ...Respondent

(By Sri Jai Prakash Reddy, Advocate)

      This Writ Petition is filed under Article 226 of the
Constitution of India, praying to quash the impugned order
dated 06.01.2023 passed by the court of Senior Civil Judge,
Gudibande in M.A.No.18/2022 under Order 43 Rule 1 of CPC
vide Annexure-AC and etc.

      This Writ Petition coming on for preliminary hearing,
this day, the court made the following:

                               ORDER

Heard Sri. Mohana Chandra P., learned counsel for

the petitioner and Sri. Jai Prakash Reddy, learned counsel

for the caveator/respondent.

2. The appellants are defendants 1 to 4 in

O.S.63/2020 on the file of Civil Judge and JMFC,

Gudibande. The respondent is the plaintiff in the suit for

permanent injunction in respect of 34 guntas of land

including kharab of 4 guntas in Sy.No.2/2 of

Machavalahalli Village, Kasaba Hobli, Gudibande Taluk,

Chickballapur District. Along with the plaint, the

WP No. 2475 of 2023

respondent filed an application for temporary injunction

under Order 39 Rules 1 and 2 CPC.

3. After hearing both sides, by order dated

13.4.2022, the trial court dismissed I.A.1 under Order 39

Rules 1 and 2 CPC. For dismissing the said application,

the trial court assigns the reasons that though the plaintiff

claims to have purchased the property from Kasturi

Rangachar through sale deed 31.7.2013, the revenue

records still continue in the name of the vendor and the

plaintiff approached the court with unclean hands. The

trial court is of the opinion that there is no proof with

regard to specific allegation that the defendant undertook

construction of the building towards Southern side of the

suit property. To give this finding, the trial court further

held that the Southern boundary of the suit property was

shown as Gramatana land. If really the construction was

undertaken in the southern portion of the suit property,

the Southern boundary should have been shown as the

plaintiff's remaining property. In this view, the trial court

WP No. 2475 of 2023

found that the plaintiff failed to make out a prima facie

case for grant of temporary injunction. Ultimately the trial

court dismissed the application.

4. When the plaintiff appealed to the court of Senior

Civil Judge, the order of the trial court was reversed and

temporary injunction was granted by judgment dated

6.1.2023. If the judgment of the appellate court is read

what appears is that instead of examining whether the

findings of the trial court are correct or not, it has

substituted its own reasons for grant of temporary

injunction. The appellate court has forgotten the fact that

it was deciding an appeal against the order of refusing to

grant an order of temporary injunction and therefore all

that was required was to assess the materials placed

before the appellate court and to give a finding whether

the trial court was justified in rejecting the temporary

injunction. The order appears as if the temporary

injunction has been granted for the first time in the appeal

which is not permitted. Even otherwise it may be stated

WP No. 2475 of 2023

that the reasons given by the appellate court may be a

second opinion that can be formed on the basis of

materials. It is settled principle of law that if two views

are possible and if the trial court is found to have

exercised discretion by taking one view, the appellate

court should not interfere with the view of the trial court

even though other view is possible to be taken. Thus

seen, the judgment of the appellate court suffers from

illegality. It should not have interfered with the

discretionary power properly exercised by the trial court.

Therefore writ petition succeeds. Impugned order in

MA.No.18/2022 is set aside. The order of the trial court

on I.A.1 is restored.

Sd/-

JUDGE

sd