Mr. Nanditha V vs Sree 1008 Jagadguru Chandrashekara ...
2023 Latest Caselaw 8498 Kant

Citation : 2023 Latest Caselaw 8498 Kant
Judgement Date : 27 November, 2023

Karnataka High Court

Mr. Nanditha V vs Sree 1008 Jagadguru Chandrashekara ... on 27 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                             -1-
                                                          NC: 2023:KHC:42648
                                                        MFA No. 5786 of 2023




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                          BEFORE
                     THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 5786 OF 2023 (CPC)
                   BETWEEN:

                   MS. NANDITHA V
                   D/O VENKATARAMANI,
                   W/O N S RAGHAVENDRA,
                   AGED ABOUT 45 YEARS,
                   R/O NO.101
                   SAGARI APARTMENTS
                   NO.25, 6TH MAIN ROAD,
                   BETWEEN 8th AND 9th CROSS,
                   MALLESHWARAM
                   BENGALURU 560003.

                   ALSO AT R/AT 18631
                   EAST SWAN DRIVE, QUEEN CREEK,
                   ARIZONA-85142,
Digitally signed
by                 UNITED STATES OF AMERICA,
DHANALAKSHMI
MURTHY             REPD. BY SPA HOLDER,
Location: High
Court of           H.V.RAJANNA,
Karnataka
                   S/O VENKATACHALAPPA,
                   AGED ABOUT 53 YEARS,
                   R/AT NO.75/4,
                   3RD MAIN ROAD, UTTARAHALLI,
                   BENGALURU-560 061.


                                                                ...APPELLANT
                   (BY SRI. VENUGOPAL M S., ADVOCATE)
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                                         NC: 2023:KHC:42648
                                       MFA No. 5786 of 2023




AND:

1.     SREE 1008 JAGADGURU CHANDRASHEKARA
       SHIVACHARYA MAHASWAMI
       AT VARANASI (KASI)

       ALSO AT NO.158/1, G M REJOYZ,
       8TH MAIN , 8TH CROSS,
       MALLESHWARAM
       BENGALURU 560003.

2.   KARMIKARA RAITHRA VASATHI NIRMANA SAHAKARA
     SANGHA LIMITED
     HAVING ITS OFFIE AT
     NO.92, 1ST FLOOR,
     BULL TEMPLE ROAD,
     CHAMARAJAPET,
     BENGALURU 560018.
     REPRESENTED BY ITS SECRETARY
                                       ...RESPONDENTS
(BY SRI. P. H. VIRUPAKSHAIAH, ADVOCATE FOR C/R1)

       MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 15.07.2023 PASSED ON I.A.NO.1
IN O.S.NO.5985/2019 ON THE FILE OF THE LVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.57),
REJECTING I.A. NO.1 FILED UNDER ORDER XXXIX RULE 1 AND
2 OF CPC.

       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                          NC: 2023:KHC:42648
                                        MFA No. 5786 of 2023




                        JUDGMENT

1. This appeal under Order XLIII Rule 1 (r) of the CPC

has been filed by the plaintiff challenging the order dated

15.07.2023 passed by the LVI Additional City Civil &

Sessions Judge, Bengaluru (CCH 57) on I.A.No.1 in

O.S.No.5985/2019 whereby the trial Court has rejected

the application filed by the plaintiff under XXXIX Rule 1

and 2 of CPC.

2. For the sake of the convenience, the parties are

referred to as per their ranking before the Trial Court.

3. The plaintiff has filed a suit for bare injunction. Along

with the plaint, he has filed I.A.No.1 under Order XXXIX

Rule 1 and 2 of CPC, seeking for temporary injunction

restraining the defendant No.1 and his henchmen, agents,

assignees, administers and coolie workers, etc from any

way of interfering with peaceful possession of the plaintiff

over the suit schedule property.

NC: 2023:KHC:42648

4. After service of summons, defendant No.1 appeared

through his counsel and filed written statement. After

hearing the parties, the trial Court has rejected the

application filed by the plaintiff under Order XXXIX Rule 1

and 2 of CPC. Being aggrieved by the same, the plaintiff

is before this Court in this appeal.

5. The suit before the trial Court is now set down for

consideration of the application filed by the parties. Under

this circumstance, after going through the order passed by

the trial Court, I am of the opinion that the only relief that

can be granted by this Court in this appeal is to permit

defendant No.1 to put up construction in the suit schedule

property, in accordance with law, subject to the condition

that he has to undertake by filing an affidavit before the

trial Court that he will not claim any equity, if the plaintiff

succeeds in the suit.

6. Accordingly, I pass the following order:

NC: 2023:KHC:42648

ORDER

a) The appeal is disposed of.

b) The order dated 15.07.2023 passed by the

trial Court in O.S.No.5985/2019 on I.A.No.1 is

hereby modified.

c) Defendant No.1 is permitted to put up

construction over the suit schedule property,

subject to the condition that he has to file an

affidavit before the trial Court that he will not

claim any equity, in case if he is unsuccessful.

d) Defendant No.1 has to file the said affidavit

within a period of two weeks from the date of

receipt of certified copy of this order.

e) It is also made clear that if the plaintiff files

any fresh application for amendment, the trial

Court is directed to consider the same, in

accordance with law.

NC: 2023:KHC:42648

f) Disposal of this appeal will not come in the

way of trial Court considering the application for

amendment, if any, to be filed by the plaintiff.

g) The trial Court is directed to dispose of the

suit, as expeditiously as possible, not later than

one year from the date of receipt of copy of this

order.

h) Both the parties are directed to cooperate for

early disposal.

i) All the contentions of the parties are left

open.