IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.51186 OF 2019 (GM-CPC) BETWEEN:
S.R.BHOGESH S/O SANGAM RUDRAPPA, AGED ABOUT 52 YEARS, AGRICULTURIST, KOONABEVU, TURUVANUR HOBLI – 577 517, CHITRADURGA TALUK AND DIST.
(BY SRI. S.C.VIJAYAKUMAR, ADVOCATE) AND:
1 . H.SHANKARAPPA, S/O LATE KANAKAPPA, AGED ABOUT 59 YEARS, 2 . SUHEELAMMA, W/O LATE H.K.THIPPESWAMY, AGED ABOUT 56 YEARS, 3 . SUNIL, S/O LATE H.K.THIPPESWAMY, AGED ABOUT 26 YEARS 4 . H.RUDRAMUNIYAPPA, S/O LATE KANAKAPPA, AGED ABOUT 61 YEARS, 5 . SHIVANNA, S/O LATE KANAKAPPA, AGED ABOUT 66 YEARS, AGRICULTURIST, RESPONDENTS 1 TO 5 ARE AGRICULTURIST, ... PETITIONER R/O KOONABEVU, TURUVANUR HOBLI – 577 517, CHITRADURGA TALUK AND DIST.
... RESPONDENTS (BY SRI. B.M.SIDDAPPA, ADVOCATE FOR C/R-1 TO R-5) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED JUDGMENT PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE CHITRADURGA IN M.A.NO.4/2018 DATED 16.09.2019 AS PER ANNEXURE-F REVERSING THE ORDER PASSED BY THE LEARNED 1ST ADDL. CIVIL JUDGE AND JMFC CHITRADURGA ON I.A.NO.1 FILED U/S 39 RULE 1 AND 2 IN O.S.NO.4/2018 DATED 21.02.2018 AS PER ANNEXURE-E; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.4/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 16.09.2019, a copy whereof is at Annexure-F, whereby the learned II Additional Senior Civil Judge, Chitradurga having favoured respondent-defendant’s appeal in M.A.No.4/2018 has reversed the temporary injunctive relief granted by the learned I Additional Civil Judge of the same town.
2. After service of notice, respondents having entered Caveat through their counsel resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the matter requires remand immediately to the Lower Appellate Court for consideration afresh because:
(a) the learned II Additional Senior Civil Judge, in the impugned order at paragraph 17 at page 5 states that the petitioner-plaintiff has not taken up even one single sentence plea as to the existence of cart track in the land of the defendants whereas the plaint at fag end of para 2 specifically mentions the plea in this regard; thus there is an error apparent on the face of the record; and, (b) the contention of the respondent-defendants that the dimension of the cart track has not been specified in his plaint is too farfetched an argument inasmuch as, the idea of cart track is a matter of common parlance and its dimension need not be in so many words specified since the courts can presume such things.
In the above circumstances, this writ petition succeeds in part; the impugned order having been set aside, the appeal is remanded to the learned II Additional Senior Civil Judge, Chitradurga, for consideration afresh in accordance with law after hearing all the stake holders.
Till such consideration takes place, the interim protection granted by the learned trial Judge shall continue.
No costs.
Sd/- JUDGE DS