Karnataka High Court
Smt. B. N. Manjula vs The Aircraft Employees Housing ... on 21 September, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:34216
MFA No. 5874 of 2023
C/W MFA No. 5832 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5874 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5832 OF 2023(CPC)
IN MFA 5874/2023
BETWEEN:
SMT. B. N. MANJULA
W/O LATE K P MADHAVA REDDY
AGED ABOUT 55 YEARS
R/AT NO 9,JAKKASANDRA
KORAMANGALA 1ST BLOCK
BENGALURU-560034.
...APPELLANT
(BY SRI. KAMALADHAR G., ADVOCATE FOR
SRI.Y V PRAKASH, ADVOCATE)
Digitally signed AND:
by
DHANALAKSHMI
MURTHY THE AIRCRAFT EMPLOYEES
Location: High
Court of HOUSING BUILDING CO-OPERATIVE
Karnataka SOCIETY LTD.,
NO 15, 1ST CROSS, CKC GARDEN
OPP HCG HOSPITAL, K H ROAD
DOUBLE ROAD, BENGALURU-560027
REPRESENTED BY ITS PRESIDENT
...RESPONDENT
(BY SRI.R.A. DEVANAND., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED: 04.08.2023 PASSED ON I.A.
NOs. 2 AND 3 IN O.S.NO. 7957/2022 ON THE FILE OF THE V
-2-
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MFA No. 5874 of 2023
C/W MFA No. 5832 of 2023
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-13), ALLOWING THE I.A. NO.3 FILED UNDER
ORDER XXXIX RULE 4 READ WITH SECTION 151 OF CPC,
REJECTING I.A.NO. 2 FILED UNDER ORDER XXXIX RULE 1 AND
2 READ WITH SECTION 151 OF CPC.
IN MFA 5832/2023
BETWEEN:
1. SMT. B. N. MANJULA
W/O LATE K P MADHAVA REDDY
AGED ABOUT 55 YEARS
2. SRI. JASWANTH M M
S/O LATE K P MADHAVA REDDY
AGED 30 YEARS
BOTH ARE RESIDING AT #9
JAKKASANDRA
KORMANGALA 1ST BLOCK
BENGALURU-560 034.
3. SRI SUKESH K
S/O MR GANAPA BARIGER
AGED 46 YEARS
RESIDING AT #320/3
NEAR BHAGYA KUTEERA
BOMMANAHALLI
BANGALORE-560 068.
...APPELLANTS
(BY SRI. KAMALADHAR G., ADVOCATE FOR
SRI.Y V PRAKASH, ADVOCATE)
AND:
THE AIRCRAFT EMPLOYEES
HOUSING BUILDING CO-OPERATIVE
SOCIETY LTD.,
NO 15, 1ST CROSS, CKC GARDEN
-3-
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MFA No. 5874 of 2023
C/W MFA No. 5832 of 2023
OPP HCG HOSPITAL, K H ROAD
DOUBLE ROAD, BENGALURU-560027
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
SRI B H BALAJI.
...RESPONDENT
(BY SRI.R.A. DEVANAND., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED: 04.08.2023 PASSED ON I.A.
NOs. 2 AND 3 IN O.S.NO. 7957/2022 ON THE FILE OF THE V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-13), ALLOWING THE I.A. NO.3 FILED
UNDER ORDER XXXIX RULE 4 READ WITH SECTION 151 OF
CPC, REJECTING I.A.NO. 2 FILED UNDER ORDER XXXIX RULE
1 AND 2 READ WITH SECTION 151 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA No.5874/2023 under Order XLIII Rule 1 (r) of
the CPC by the plaintiff challenging the order dated
04.08.2022 passed by the V Additional City Civil Judge,
Bengaluru City (CCH-13) in O.S.No.7957/2022 on
I.A.Nos.2 and 3 whereby I.A.No.2 filed by the plaintiff
under Order XXXIX Rules 1 and 2 read with Section 151 of
CPC has been rejected and I.A.No.3 filed by the defendant
under Order XXXIX Rule 4 read with Section 151 of CPC
has been allowed.
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2. MFA No.5832/2023 under Order XLIII Rule 1 (r) of
the CPC by the defendants challenging the order dated
04.08.2022 passed by the I Additional City Civil & Sessions
Judge, Bengaluru (CCH No.2) in O.S.No.7633/2022 on
I.A.Nos.1 and 2 whereby I.A.No.1 filed by the plaintiff
under Order XXXIX Rules 1 and 2 has been partly allowed
and I.A.No.2 filed by the defendants under Order XXXIX
Rule 4 read with Section 151 of CPC has been rejected.
3. Since the parties in both the cases are one and the
same, the matters are clubbed together and a common
order is passed.
4. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
5. The plaintiff in both the cases have filed the suits for
injunction in respect of respective suit schedule property.
Along with the suit, applications under Order XXXIX Rules
1 and 2 of CPC have been filed in both the suits. On
service of summons, the defendants in both the appeals
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appeared through their counsel and filed the written
statement and also filed the applications under Order
XXXIX Rule 4 of CPC. The trial Court by impugned order
dated 04.08.2023 has partly allowed application filed by
the plaintiff and rejected the application filed by the
defendants in O.S.No.7633/2022 and directed both the
parties to maintain status-quo, till disposal of the said suit.
The trial Court also by impugned order dated 04.08.2023
has allowed the application filed by the defendant and
rejected the application filed by the plaintiff in
O.S.No.7957/2022.
6. Both suits are between the same parties seeking for
relief of injunction. Now the suits are set down for framing
issues and for adducing evidence of the parties. Therefore,
the matters are required to be clubbed together and has to
be tried by a single Court since both the parties are
disputing regarding encroachment of suit schedule
property.
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MFA No. 5874 of 2023
C/W MFA No. 5832 of 2023
7. Under these circumstances and in the interest of
justice, the matters are required to be remitted back to
the trial Court with a direction to club both the suits and
decide the same in accordance with law reserving liberty
to the parties to file an application for appointment of the
Commissioner for conducting survey and to submit a
report. If such application is filed, the trial Court is
directed to allow the application. After obtaining the report
from the Commissioner, the trial Court shall decide the
matters as expeditiously as possible.
8. Hence, I pass the following order:
ORDER
a. The appeals are disposed of.
b. The order dated 04.08.2022 passed by the
V Additional City Civil Judge, Bengaluru
City (CCH-13) in O.S.No.7957/2022 on
I.A.Nos.2 and 3 and the order 04.08.2022
passed by the I Additional City Civil &
Sessions Judge, Bengaluru (CCH No.2) in
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O.S.No.7633/2022 on I.A.Nos.1 and 2 are
hereby modified.
c. It is ordered that O.S.No.7957/2022
pending on the file of V Additional City Civil
Judge, Bengaluru City (CCH No.13) is
hereby transferred to I Additional City Civil
& Sessions Judge, Bengaluru (CCH No.2).
d. I Additional City Civil & Sessions Judge,
Bengaluru (CCH No.2) is directed to club
O.S.No.7957/2022 with O.S.No.7633/2022
and decide together, in accordance with
law.
e. The plaintiff in O.S.No.7957/2022 and
defendants in O.S.No.7633/2022 are
permitted to put up construction in the suit
schedule property. However, they shall not
create any third party interest over the suit
schedule property and they shall not claim
any equity.
f. The trial Court is directed to dispose of the
suits as expeditiously as possible but not
later than six months from the date of
receipt of certified copy of this order.
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g. The parties are directed to cooperate for
early disposal of the suits.
9. In view of disposal of the main appeals, all pending
applications do not survive for consideration. Hence, the
same are also disposed of.
Sd/-
JUDGE
HA
