Karnataka High Court
The Hubli Dharwad Municipal ... vs Lrs Of S M Horadi on 29 October, 2024
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NC: 2024:KHC-D:15790
MFA No. 100706 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100706 OF 2018 (CPC)
BETWEEN:
THE HUBLI DHARWAD
MUNICIPAL CORPORATION,
REPRESENTED BY ITS
COMMISSIONER DHARWAD.
...APPELLANT
(BY SRI G. I. GACHCHINMATH, ADVOCTE)
AND:
SMT. GOURAMMA W/O. SHYAMKUMAR @
SHAMBU HORADI,
AGE: 63 YEARS, OCCU:HOUSEHOLD,
R/O: SANMATI ROAD, NOW RESIDING
AT C/O: PATILS BUILDING,
KIDB LAYOUT NEHARU NAGAR,
DHARWAD.
Digitally signed ...RESPONDENT
by SAROJA
HANGARAKI
Location: High
Court of
Karnataka THIS MFA IS FILED UNDER ORDER 43 RULE 1 SUB CL (t) R/W
U/S 9 CL(IV) KARNATAKA HIGH COURT ACT 1961, AGAINST
JUDGMENT AND ORDER DATED 31.10.2017 PASSED IN MISC.
APPLICATION NO.5/2012 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (SR.DN.) AND CJM., DHARWAD FILED U/O.41 R 18A AND 19
OF CPC R/W 151 CPC FOR RESTORATION OF APPEAL AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2024:KHC-D:15790
MFA No. 100706 of 2018
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed challenging the order
dated 31.10.2017 passed in Miscellaneous Petition
No.5/2017 by the Principal Civil Judge (Sr.Dn) and CJM
Dharwad1.
2. The relevant facts necessary for
consideration of the present appeal are that one
Shyamkumar @ Shambu Horadi instituted a suit in
O.S.No.331/2006 in the Court of the Principal Civil Judge
(Jr.Dn) and Principal JMFC, Dharwad2 for permanent
injunction. The appellant herein was arrayed as defendant
in the said suit. The Trial Court vide its judgment and
decree dated 01.09.2007 decreed the suit and passed the
following order:
"The suit of the plaintiff is hereby
decreed.
Hereinafter referred to as "the First Appellate Court"
Hereinafter referred to as "the Trial Court"
NC: 2024:KHC-D:15790
The defendant-corporation and its
agents are restrained from interfering with
the peaceful possession and wahivat of the
suit property by the plaintiff unless and
until the plaintiff is evicted with due
process of law."
3. Being aggrieved, the appellant-corporation
preferred R.A.No.99/2007 before the First Appellate Court.
The said appeal having been dismissed for non-
prosecution, the appellant preferred Misc.Petition
No.5/2012. In the meanwhile, during the pendency of the
litigation, the original plaintiff having deceased, his legal
representatives were brought on record, who are arrayed
as respondents in the present appeal as also respondents
in the Misc.Petition No.5/2012. The First Appellate Court
vide order dated 31.10.2017 dismissed the said
miscellaneous petition. Being aggrieved, the present
appeal is filed.
4. The learned counsel Sri. Gurudev
Gachchinamath, assailing the order of the First Appellate
NC: 2024:KHC-D:15790
Court, vehemently contends that an opportunity is
required to be accorded to the appellant to contest the
appeal on merits and hence, seeks for allowing the present
appeal.
5. However, it is forthcoming that the suit in
O.S.No.331/2006 was filed by the plaintiff contending,
inter alia, that he was in peaceful possession of the suit
property bearing CTS No.128 as a lessee under the
appellant-Corporation. The Trial Court, while granting
injunction, had restrained the corporation from interfering
with his peaceful possession of the suit property until the
plaintiff is evicted by due process of law.
6. The learned counsel for the appellant
submits that the lease period has expired. In view of the
same, the judgment dated 01.09.2007 passed in
O.S.No.331/2006 will not in any manner come in the way
of the appellant-corporation to institute appropriate
proceedings in accordance with law against the
NC: 2024:KHC-D:15790
respondents for possession of the property, which is in
their occupation.
7. Having regard to the admitted position as
noticed above, no useful purpose will be served in
considering the present appeal on its merits.
8. In view of the aforementioned, the above
appeal is disposed off subject to observations as noticed
above.
SD/-
(C.M. POONACHA)
JUDGE
YAN
CT-ASC
