Karnataka High Court
Sri Thyagaraju L vs Sri. L Ramamurthy on 3 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 5704 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 5704 OF 2022 (CPC)
BETWEEN:
SRI. THYAGARAJU L.,
S/O LATE M.S. LAKSHMANA GOWDA,
AGED ABOUT 62 YEARS,
R/O LAKKUR VILLAGE AND HOBLI,
MALUR TALUK, KOLAR DISTRICT.
...APPELLANT
(BY SRI. SHIVARAMU H.C., ADVOCATE)
AND:
1. SRI. L. RAMAMURTHY,
S/O M.S. LAKSHMAN GOWDA,
AGED ABOUT 72 YEARS,
R/O SHYAMALA NURSERY
Digitally signed by LALBAGH SIDDAPURA, JAYANAGAR 1ST BLOCK,
GEETHAKUMARI
PARLATTAYA S BANGALORE SOUTH 560 011.
Location: High
Court of Karnataka
2. SRI. SRINIVASA GOWDA L.,
S/O LATE M.S. LAKSHMAN GOWDA,
AGED ABOUT 67 YEARS.
3. SRI. SHIVA PRASAD L.,
S/O LATE M.S. LAKSHMAN GOWDA,
AGED ABOUT 65 YEARS.
RESPONDENTS 2 AND 3 ARE
R/AT LAKKUR VILLAGE AND HOBLI,
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MFA No. 5704 of 2022
MALUR TALUK,
KOLAR DISTRICT.
4. SMT. L. AMBUJA
W/O K.N. NARENDRANATH,
AGED ABOUT 61 YEARS,
R/O NO. 17/1,
PAPAIAH ROAD,
DODDAMAVALLI,
BENGALURU - 560 004.
5. SMT. L. UMADEVI
W/O B.V. KRISHNAN,
AGED ABOUT 59 YEARS
R/O BIDDARAGUPPE VILLAGE,
ATTIBELE HOBLI,
ANEKAL TALUK,
BENGALURU URBAN DISTRICT.
6. SMT. L. SUDHA
W/O D. MANOHAR,
AGED ABOUT 55 YEARS,
R/O NO.5/12, NAIDU LAYOUT,
HOPE FARM, WHITE FIELD,
BENGALURU - 560 066.
...RESPONDENTS
(BY SRI. VISWANATHA N.S., ADVOCATE FOR R1;
SRI. D.V. VENKATESH, ADVOCATE FOR R2 TO R6)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 26.07.2022 PASSED ON
I.A.NO.II IN OS.NO.408/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MALUR, ALLOWING I.A.NO.II FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 5704 of 2022
JUDGMENT
This appeal is filed against order dated 26.07.2022
passed by the learned Senior Civil Judge and JMFC, Malur in
O.S.no.408/2022 on I.A.II filed by plaintiff under Order XXXIX
Rules 1 and 2 read with Section 151 CPC.
2. Sri H.C.Shivaramu, learned counsel for appellant
submitted that appeal was by defendant no.3 in
O.S.no.408/2022 filed by respondent no.1 herein for partition
and separate possession. In said suit, application - I.A.II was
filed by plaintiff under Order XXXIX Rules 1 and 2 of CPC for
temporary injunction restraining defendants no.1 to 3 from
putting up any further construction on suit schedule item no.16
during pendency of suit, which was allowed under order
impugned herein. It was submitted that this Court had granted
an interim order of stay of said order and in meanwhile,
defendant no.3 has completed construction and was residing
therein. In view of above, counsel for appellant seeks for
disposal of appeal by passing appropriate orders.
3. Counsel for respondent no.1, plaintiff in suit, would
submit due to pendency of appeal, trial Court was not
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proceeding with suit and as plaintiff was a septugenarian,
appeal may be disposed of by observing that construction so
put up would be subject to outcome of suit and defendant no.3
shall not claim any equity in case plaintiff succeeds in suit. He
further submits that a direction may also be issued to trial
Court for expeditious disposal of suit.
4. Heard learned counsels on both sides and considered
their submissions.
5. In view of the above submissions, instead of testing the
impugned order on merits and fact that defendant no.3,
appellant herein, has completed construction, it would suffice to
dispose of appeal by holding that construction put up would be
subject to outcome of suit and defendant no.3 would not be
entitled to claim equity, in case plaintiff succeeds in suit. As
already submitted by learned counsel for plaintiff that due to
pendency of this appeal, trial Court has not proceeded and
framed issues. Therefore, trial Court is directed to expedite
disposal of suit preferably within outer limit of ten months by
setting specific timeline for each stage of suit. Further, both
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parties are directed to co-operate without seeking unnecessary
adjournments.
6. All contentions of both parties are kept open and
observations and conclusions by Trial Court at time of passing
impugned order shall be confined to interim stage and shall not
come in way of Trial Court passing appropriate judgment on
basis of evidence adduced during trial.
Appeal is disposed of with aforesaid observations.
Sd/-
JUDGE
rs
