IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.53577/2017 AND WRIT PETITION NO.54128/2017(GM-CPC) BETWEEN:
SMT. L. A. JAYALAKSHMI, W/O. E. B. VIJAYAKUMAR, D/O. LATE. LAKSHMAIAH, AGED ABOUT 51 YEARS, RESIDING AT NO. 56, 4TH MAIN, LAKSHMAIAH BLOCK, GANGANAGAR, BANGALORE – 560032.
... PETITIONER (BY SRI NARAYANA SWAMY P. M., ADVOCATE) AND:
1. SRI CHIKKAREVANNA, S/O. AJJAPPA, AGED ABOUT 40 YEARS, RESIDING AT NO. 255/N, III BLOCK, BHANASHANKARI VI PHASE, BANGALORE 560062.
2. SRI. S. GOPAL, S/O. LATE. SHAMANNA, AGED ABOUT 59 YEARS, RESIDING AT NO. 1098, POORNA PRAJANA SCHOOL ROAD, HAL II STAGE, NEW THIPPASANDRA, BANGALORE 560015.
... RESPONDENTS …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDERS DATED 8.11.2017 ON IA NO.1 AND IA NO.II FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ORDER DATED 18.11.2017 ON IA NO.1 AND II FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AS ANNEXURE-A, IN O.S.NO.7450/2017 PASSED BY THE XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These writ petitions are filed against the order dated 08.11.2017 made in O.S.No.7450/2017 issuing suit summons and emergent notice of I.A.No.1 to the defendants and order dated 18.11.2017 retaining the order passed on I.A.Nos.1 and 2.
2. The petitioner/plaintiff filed suit in O.S.No.7450 of 2017 for declaration and permanent injunction in respect of suit schedule property. The Trial Court, considering the pleadings in the plaint and the averments made in the application, by order dated 08.11.2017, issued suit summons and emergent notice of I.A.No.1 filed by the plaintiff under Order XXXIX Rule 1 and 2 of Code of Civil Procedure observing that, ‘there is absurdity by the side of the plaintiff in order to grant exparte temporary injunction, since there is no prima facie case and balance of convenience in favour of the plaintiff’. Subsequently, on the advancement application filed by the learned counsel for the plaintiff, the matter was listed on 18.11.2017 and on that day, the Trial Court observed that, ‘at this juncture again reconsideration of I.A.Nos.1 and 2 does not arise for consideration when the suit is filed by the plaintiff by paying insufficient court fee and the valuation made is improper. Therefore, the order passed on I.A.No.1 and 2 stands as it when the Court has passed order on 08.11.2017’. In substance, no adverse order is passed against the plaintiff and no prejudice is caused to the plaintiff.
3. Therefore, the petitioner has not made out any ground to interfere with the impugned order passed by the Trial Court, in exercise of powers under Article 227 of the Constitution of India.
4. For the reasons stated above, writ petitions are dismissed. It is open for the petitioner to approach the Trial Court and pursue the application for temporary injunction, in accordance with law.
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JUDGE kcm