Karnataka High Court
Smt S Hemavathi vs Sri N. Lakshmipathy on 29 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:43643
MFA No. 1725 of 2024
C/W MFA No. 1722 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.1725 OF 2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.1722 OF 2024 (CPC)
IN MFA No.1725/2024:
BETWEEN:
1. SMT. S. HEMAVATHI,
AGED ABOUT 64 YEARS,
W/O LATE SIDDAIAH,
OLD NO.105, NEW NO.32/1,
5TH CROSS, 5TH MAIN,
RAGHAVENDRA COLONY,
CHAMARAJPET,
BANGALORE-560018.
...APPELLANT
(BY SRI. PRANAV T.M., ADVOCATE FOR
Digitally signed
by DEVIKA M SRI B.R.VISWANATH, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI N. LAKSHMIPATHY,
AGED ABOUT 41 YEARS,
S/O G.P. NARASIMHAREDDY,
NO.E-2588, 7TH CROSS,
13TH MAIN ROAD, 'E' BLOCK,
SAHAKARANAGAR,
BANGALORE-560092.
2. SMT. HEMA Y.P.
AGED ABOUT 43 YEARS,
D/O LATE H. PUTTASWAMY,
W/O NAGARAJAGOWDA K.V,
RESIDING AT NO.51, GROUND FLOOR,
-2-
NC: 2024:KHC:43643
MFA No. 1725 of 2024
C/W MFA No. 1722 of 2024
FIRST CROSS, 4TH MAIN ROAD,
SANKARNAGAR, MAHALAKSHMIPURAM,
BANGALORE-560096.
3. SRI N.B. GURUDEV,
AGED ABOUT 56 YEARS,
S/O H.L. BYREGOWDA,
RESIDING AT NO.4, FI COLONY,
NEAR WATER TANK,
NANDINI LAYOUT,
BANGALORE-560096.
...RESPONDENTS
(BY SRI. CHANDRASHEKARA N., ADVOCATE FOR R1;
VIDE ORDER DATED 22.04.2024,
SRI H.N.VENKATESH, ADVOCATE FOR R2 & R3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 31.10.2023
PASSED ON I.A.NO.1 IN O.S.NO.6741/2018 ON THE FILE OF LX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-61, DISMISSING I.A.NO.1 FILED UNDER ORDER 39 RULE 1
AND 2 OF CPC.
IN MFA NO. 1722/2024:
BETWEEN:
1. SMT. S. HEMAVATHI,
AGED ABOUT 64 YEARS,
W/O LATE SIDDAIAH,
OLD NO.105, NEW NO.32/1,
5TH CROSS, 5TH MAIN,
RAGHAVENDRA COLONY,
CHAMARAJPET,
BANGALORE-560018.
...APPELLANT
(BY SRI. PRANAV T.M., ADVOCATE FOR
SRI B.R. VISWANATH, ADVOCATE)
-3-
NC: 2024:KHC:43643
MFA No. 1725 of 2024
C/W MFA No. 1722 of 2024
AND:
1. SRI N. LAKSHMIPATHY,
AGED ABOUT 41 YEARS,
S/O G.P. NARASIMHAREDDY,
NO.E-2588, 7TH CROSS,
13TH MAIN ROAD, 'E' BLOCK,
SAHAKARANAGAR,
BANGALORE-560092.
2. SMT. HEMA Y.P.,
AGED ABOUT 43 YEARS,
D/O LATE H.PUTTASWAMY,
W/O NAGARAJAGOWDA K.V,
RESIDING AT NO.51, GROUND FLOOR,
FIRST CROSS, 4TH MAIN ROAD,
SANKARNAGAR, MAHALAKSHMIPURAM,
BANGALORE-560096.
3. SRI N.B. GURUDEV,
AGED ABOUT 56 YEARS,
S/O H.L. BYREGOWDA,
RESIDING AT NO.4,
FI COLONY, 1ST FLOOR,
6TH CROSS, NEAR WATER TANK,
NANDINI LAYOUT,
BANGALORE-560096.
...RESPONDENTS
(BY SRI. CHANDRASHEKARA N., ADVOCATE FOR R1;
VIDE ORDER DATED 22.04.2024,
SRI H.N.VENKATESH, ADVOCATE FOR R2 & R3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 31.10.2023 PASSED ON IA
NO.1 IN O.S.NO.6749/2018 ON THE FILE OF THE LX
ADDITIONAL CITY CIVIL AND SESSSIONS JUDGE, BENGALURU,
(CCH-61), DISMISSING IA NO.1 FILED UNDER ORDER 39 RULE
1 AND 2 R/W SECTION 151 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:43643
MFA No. 1725 of 2024
C/W MFA No. 1722 of 2024
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. These two appeals are arising out of the dismissal of
the applications filed before the Trial Court in O.S.No.6741/2018
and O.S.No.6749/2018.
3. The records discloses that the plaintiff is the
appellant in both the appeals and the suits are filed by the
plaintiff for the relief of declaration and injunction and when
both the I.As. are rejected, the present appeals are filed. The
suits are of the year 2018 and almost six years has been
elapsed. Admittedly, the case is set down for leading of
evidence. An application is filed before this Court for
appointment of the Court Commissioner in M.F.A.No.1725/2024.
Instead of appointing Court Commissioner before this Court, if
necessary, application shall be filed before the Trial Court for
appointment of the Court Commissioner and the Trial Court shall
consider whether the appointment of Court Commissioner is
necessary or not and dispose of the same in accordance with
law. It is important to note that the suits are set down for
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evidence and both the suits are of the year 2018. The learned
counsel for the respondents submits that if a time bound
direction is given, both the suits can be disposed of within a
time bound period.
4. Having heard the respective learned counsel, when
the suits are filed for the relief of declaration and permanent
injunction, the title of the parties has to be decided by the Trial
Court. The Trial Court dismissed the applications in coming to
the conclusion that the plaintiff has not made out a prima facie
case and the matter requires trial and comes to the conclusion
that, who is in possession of the schedule property, cannot be
decided upon until and unless the parties establish their title to
the schedule property and temporary injunction cannot be
granted insofar as interference with the plaintiff's peaceful
possession and enjoyment of the schedule property and rejected
the same. When the Trial Court comes to such a conclusion that
injunction cannot be granted, this Court can direct the Trial
Court to dispose of the matter within a time bound period of
nine months having considered the suits are of the year 2018.
The learned counsel for the appellant and the learned counsel
for the respondents and the parties to the respective suits are
directed to assist the Trial Court in disposal of the suit within a
NC: 2024:KHC:43643
time bound period of nine months from the date of receipt of
copy of this order. The respective learned counsel are directed
to place a copy of this order before the Trial Court, forthwith to
enable the Trial Court to dispose of the same within a period of
nine months.
5. Accordingly, both the miscellaneous first appeals are
disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
MD
