IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION No. 51163/2017 (GM-CPC) BETWEEN :
SMT. SAROJAMMA W/O LATE M.APPAJI GOWDA, R/O UJJANAHALLI VILLAGE, SINGARAJUPURA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT-571 511.
(BY SRI. V. V. GUNJAL., ADVOCATE) AND 1. SMT SUJATHA, W/O K.P.UMESH, R/O WARD NO.30, NEAR IJOOR HILLS AND NAGARAKATTE, IJOOR, RAMANAGARA TOWN, RAMANAGARA DISTRICT-571 511.
2. RUDRA DEVARU S/O SHIVARUDRAIAH, AGED ABOUT 56 YEARS, MALLESHWARA TEMPLE, IJOOR, RAMANAGAR TOWN, RAMANAGARA DISTRICT-571511.
... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 02.08.2017 IN O.S.NO.297/2013 PASSED BY THE PRINCIPAL CIVIL JDUGE AND JMFC RAMANAGARA ON I.A.NO.3 UNDER ORDER 26 RULE 9 R/W SECTION 151 OF C.P.C. VIDE ANNX-A AND DIRECT THE LEARNED CIVIL JUDGE TO EXAMINE THE PLEADINGS AND DISPOSE OFF THE SUIT EXERCISING POWERS UNDER ORDER 12 RULE 6 OF THE CIVIL PROCEDURE CODE.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri. V.V. Gunjal, learned counsel for petitioner.
2. Heard on the question of admission.
3. Taking into account the order, this court deems it proper not to issue notice to the respondents on the application.
4. In this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 05.08.2017 passed on I.A.No.III by which the application preferred by the petitioner under Order XXVI Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as “the Code” for short) has been rejected on the ground that the plaintiff has not pleaded encroachment.
5. The facts giving raise to filing of the application are that the plaintiff has filed O.S.No.297/2013 against the defendants seeking the relief declaration and mandatory injunction, directing the defendant No.1 remove the construction made on the suit schedule property and deliver vacant possession of the suit schedule property to the petitioner. During the course of the suit, the petitioner filed I.A.No.III under Order XXVI Rule 9 of the Code. However, the said application was rejected by the impugned order on 05.08.2017 on the ground that the plaintiff has not pleaded encroachment by the defendant No.1.
6. The learned counsel for petitioner while inviting the attention of this court to Para 6 and 7 of the plaint has submitted that the plaintiff in unequivocal terms has stated that defendant No.1 in collusion with defendant No.2 has raised construction in the suit schedule property belonging to plaintiff/petitioner. Thus, it is evident that the petitioner has pleaded the case incorrectly. However, this aspect of the matter has not been considered by the trial court.
7. In view of the aforestated submission and in view of the fact that in Para 6 and 7 of the plaint, the petitioner has pleaded that defendant No.1 in collusion with defendant No.2 has raised construction in the suit schedule property belonging to plaintiff/petitioner, the case of encroachment was meted by the petitioner. However, the aforesaid pleading has not been considered by the trial court.
8. Therefore, in the facts and circumstances of the case, I deem it proper to dispose of the petition granting liberty to the petitioner to seek review of the order dated 05.08.2017. Needless to state, in case an application seeking review of the order dated 05.08.2017 is filed by the petitioner before the trial court, the trial court shall decide the application in the light of observation made supra by this court, within a period of one month from the date of receipt of certified copy of this order.
9. The petition stands disposed of accordingly.
Np/-
Sd/- JUDGE