IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 374 OF 2016 (INJ) Between:
SMT. LEELAVTHI WIFE OF SRI.G.V.SRINIVAS, 44 YEARS R/A MIG 21, GOPALA EXTN. SHIVAMOGGA - 577 201.
(BY SRI. MOHAN KUMAR. T., ADVOCATE ) And:
THE COMMISSIONER SHIVAMOGGA URBAN DEVELOPMENT AUTHORITY SHIVAMOGGA – 577 201.
... APPELLANT ... RESPONDENT (BY SRI.A.V. GANGADHARAPPA., ADVOCATE ) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 21.09.2015 PASSED IN R.A NO. 139/2014 ON THE FILE OF THE II ADDL. SR. CIVIL JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 21.08.2013 PASSED IN OS NO. 496/2007 ON THE FILE OF THE I ADDL, CIVIL JUDGE AND JMFC., SHIVAMOGGA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed calling in question the judgment and decree dated 21.08.2013 in O.S.No.496/2017 on the file of the I Additional Civil Judge and JMFC, Shivamogga (for short, ‘the civil court’) and the order dated 21.09.2015 in RA No.139/2014 on the file of the II Additional Senior Civil Judge, Shivamogga (for short, ‘the appellate court’).
2. The appellant has filed the suit in O.S.No.496/2017 for permanent injunction against the respondent from interfering with his possession and enjoyment of the immovable property described as measuring 25x50 feet formed in Site No.91/A bearing municipal Katha No.5002/4916/1192/A situated at Swamy Vivekananda extension, ward No.35, Shivamogga City (subject property). This suit is decreed restraining the respondent from interfering with the appellant’s possession of the subject property clarifying that this decree of permanent injunction shall not impede the respondent from initiating the appropriate proceedings under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974. The appellant impugned this judgment in the first appeal in RA No.139/2014 before the appellate Court belatedly by 1 year and 18 days and therefore, filed the application under Section 5 of the Limitation Act, 1963 for condonation of delay. The appellate Court by its impugned order dated 21.09.2015 rejected the delay application and consequentially, the appeal.
3. The learned counsel for the parties do not dispute that after the judgment and decree in O.S.No.496/2007, the respondent initiated proceedings under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, and the appellant impugned such initiation in an appeal in MA No.1/2014 on the file of the II Additional District Judge, Shivamogga. This miscellaneous appeal, which was pending as of the date of the appellate Court’s order, is now disposed of and thereafter, the respondent has initiated a suit in O.S.No.192/2017 for declaration and possession. The respondent has entered appearance in this subsequent suit.
4. In the aforesaid circumstances, there would be no reason for interference in this appeal and especially, as no substantial question of law is canvassed for consideration. The appeal is accordingly disposed of.
Sd/- Judge SA Ct:sr