Sri Suresh S vs Sri P Lakshminarayana
2023 Latest Caselaw 7352 Kant

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                                                         NC: 2023:KHC:38126
                                                      MFA No. 5403 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 27TH DAY OF OCTOBER, 2023

                                             BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 5403 OF 2023 (CPC)
                   BETWEEN:

                   SRI SURESH S
                   S/O B SHIVAIAH
                   AGED ABOUT 38 YEARS
                   R/O NO. 1579, 7TH CROSS
                   GOVINDARAJA NAGARA
                   CORPORATION COLONY
                   BENGALURU - 560079
                                                                ...APPELLANT
                   (BY SRI. JAI PRAKASH REDDY M., ADVOCATE)

                   AND:

                   1.    SRI P LAKSHMINARAYANA
                         W/O LATE PUTTAPPA
                         AGED ABOUT 49 YEARS.
Digitally signed
by
DHANALAKSHMI       2.    SMT. L V LAKSHMI
MURTHY                   W/O P LAKSHMINARAYANA
Location: High           AGED ABOUT 38 YEARS
Court of
Karnataka                BOTH ARE R/AT NO. 1578
                         7TH CROSS, GOVINDARAJA NAGARA
                         CORPORATION COLONY
                         BENGALURU - 560079
                                                              ...RESPONDENTS
                   (BY SRI.RAGHAVENDRA K., ADVOCATE FOR C/R1 & R2)

                        THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
                   AGAINST THE ORDER DATED 16.06.2023 PASSED ON I.A. NO.1
                   IN O.S.NO. 2456/2023 ON THE FILE OF THE XXXV ADDITIONAL
                   CITY CIVL AND SESSIONS JUDGE, BENGALURU (CCH-36),
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                                            NC: 2023:KHC:38126
                                        MFA No. 5403 of 2023




ALLOWING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
OF CPC.

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

1. This appeal under Order 43 Rule 1(r) of CPC is filed

by the appellant-defendant challenging the order dated

16.6.2023 passed by the XXXV Addl. City Civil and

Sessions Judge, Bengaluru on I.A.No.1 filed under Order

39 Rules 1 and 2 read with Section 151 of CPC in

O.S.No.No.2456/2023, whereby the Trial Court has

allowed the application filed by the plaintiffs.

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

to as per their ranking before the Trial Court.

3. The plaintiffs filed the suit before the Trial Court for

permanent injunction. Along with the suit, the plaintiffs

filed I.A.No.1 under Order 39 Rules 1 and 2 of CPC seeking

an order of temporary injunction restraining the defendant

from putting up further construction in the suit schedule

'B' property by encroaching 'A' schedule property of the

NC: 2023:KHC:38126 MFA No. 5403 of 2023

plaintiffs illegally and damaging the wall and fittings of the

plaintiffs' property as prayed for. On service of suit

summons, defendant appeared through counsel and filed

written statement. After hearing the parties, the Trial

Court by impugned order dated 16.6.2023 has allowed the

application. Being aggrieved by the same, the present

appeal is filed.

4. Heard the learned counsel for the parties and

perused the impugned order.

5. Along with the written statement, the defendant had

produced necessary documents before the Trial Court. By

order dated 23.5.2023, the documents produced by the

defendant were ordered to be kept in safe custody of the

court. The Trial Court while disposing of the application

has given a finding that the defendant has not produced

the original licence and building plan issued by the BBMP.

Infact, in paragraph-17 of the written statement, the

defendant has stated that he has obtained the building

plan and licence from the concerned authorities and

NC: 2023:KHC:38126 MFA No. 5403 of 2023

thereafter started construction and copies of the same

were produced along with the written statement as D4 and

D5, which were ordered to be kept in safe custody of court

by order dated 23.5.2023. While passing the impugned

order, the Trial Court has not considered the same and the

impugned order is passed contrary to the materials

available on record. Hence, the same is unsustainable and

requires to be set aside. Accordingly, the following order

is passed:

ORDER

a) The appeal is allowed.

b) The order dated 16.6.2023 passed by the XXXV

Addl. City Civil and Sessions Judge, Bengaluru on

I.A.No.1 filed by the plaintiffs under Order 39

Rules 1 and 2 read with Section 151 of CPC in

O.S.No.No.2456/2023, is set aside.

c) The matter is remanded to the Trial Court with a

direction to the Trial Court to reconsider the

application i.e., I.A.No.1 filed by the plaintiffs.

NC: 2023:KHC:38126 MFA No. 5403 of 2023

d) Parties are directed to appear before the Trial

Court on 8.11.2023 and make available the copy

of this order before the Trial Court.

e) Till the disposal of the application, the order

dated 16.6.2023 passed by the Trial Court on

I.A.No.1, shall be in operation.

f) The Trial Court is directed to dispose of the

application i.e., I.A.No.1 on or before

17.11.2023 in accordance with law, without

being influenced by any observations made

either by this Court in this order or by the order

dated 16.6.2023 passed on I.A.No.1.

All pending applications, if any, shall stand

disposed of.

Sd/-

JUDGE

DM