IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.56011/2017 (GM-CPC) BETWEEN:
1. Smt.Senamma W/o Late Honnaiha, Aged about 72 years.
2. Smt.Dhanalakshmi, D/o Late Honnaiah, W/o Thimmappa Gowda, Aged about 46 years.
Both are residing at Shanthapura, Hebburru Hobli, Bannikuppe Village, Tumkur Taluk and Tumkur District – 572120.
(By Sri.Kamaleshwara Poojary, Advocate) AND 1. Sri.Nagaraju, S/o Late Honnaiah, Aged about 52 years.
... Petitioners 2. Sri.Gowdappa, S/o Late Honnaiah, Aged about 50 years, Both are residing at Shanthapura, Hebburu Hobli, Bannikuppe Village, Tumkur Taluk and Tumkur District – 572120.
... Respondents (By Sri.Shekar.L.S, Advocate for R1; R2 served) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order passed by the Hon’ble IV Additional Civil Judge and JMFC, Tumkur in O.S.No.99/2017, on IA No.1 under Order 39 Rule 1 and 2 C.P.C dated 24.06.2017 as per Annexure-A and etc.
This Writ Petition is coming on for Preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER Petitioner being the plaintiffs in an injunctive suit in O.S.No.99/2017 are invoking the writ jurisdiction of this Court for assailing the order dated 24.06.2017 a copy whereof is at Annexure –A whereby the learned IV Additional Civil Judge, Tumakuru has deferred consideration of their application filed under Order 39 Rules 1 & 2 of CPC,1908 for grant of ad interim order of temporary injunction on the sole ground that the prayer in the said application and that in the main prayer in the suit are substantially.
2. After service of notice, respondents having entered appearance through their counsel, resist the writ petition inter alia contending that the impugned order is appealable and therefore, this Court ordinarily does not interfere in the matter.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants reprieve to the petitioners since the impugned order does not either allow or reject the said application filed by them but only defers it’s consideration indefinitely which is not justifiable on the ground stated in the impugned order.
In the above circumstances, this writ petition is partly allowed; the impugned order is set at naught, and the matter is remitted to the learned trial Judge for consideration afresh within two months.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE UN