IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 9974 OF 2017 (GM-CPC) BETWEEN:
1. SIDDIQUE AKBAR AGED ABOUT 30 YEARS, 2. ABDUL SATHAR, AGED ABOUT 29 YEARS, BOTH ARE SONS OF K HUSSAIN, R/AT KUNDALA HOUSE, KANNUR VILLAGE, P.O. KANNUR, MANGALURU – 575 007.
(BY SRI. M SUDHAKARA PAI, ADVOCATE) AND:
MR. HYDER ALI, S/O LATE S. IDINABBA @ UNHI, AGED ABOUT 58 YEARS, PRESENTLY R/AT NO.701, WEST GATE PRIDE, FALNIR 1ST CROSS, FALNIR, MANGALURU – 575 001(DK) ... PETITIONERS ... RESPONDENT (BY SRI. UDAYA PRAKASH MULIYA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 24.01.2017 ON I.A.NO. 4 IN O.S.NO.772/2014 ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC MANGALURU, DK VIDE ANNEX-H TO THE W.P.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the defendants in an injunctive suit in O.S.No.772/2014 are invoking the writ jurisdiction of this Court for assailing the order dated 24.01.2017, a copy whereof is produced at Annexure-H, whereby their application in I.A.No.4 filed u/s.10 of CPC, 1908 for stay of suit proceedings has been rejected by the learned II Addl. Civil Judge, Mangalore, D.K. After service of notice, the respondent having entered appearance through his counsel resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, some reprieve needs to be granted to the petitioners for the following reasons:
(a) the property in respondent’s injunctive suit in O.S.No.772/2014 happens to be a part of the property in petitioners’ partition suit and that the respondent herein having bought the same anterior to the institution of the suit happens to be the 25th defendant therein;
(b) petitioners’ partition suit in O.S.No.23/2011 having been dismissed, the appeal in R.A.No.13/2013 against thereto having been favoured, the suit is restored to the Board; however, the order in R.A.No.13/2013 having been put in challenge in MSA No.39/2019, the same is stated to have been stayed by this Court;
(c) the interest of the respondent-plaintiff arguably could be subject to outcome of the partition suit subject to just exceptions which this Court is not much deliberating now; it is left to be considered by the Courts below, if and when the occasion arises; in any circumstance, the decree if made in the partition suit would cast a shadow or light on the injunctive suit of the respondent herein since admittedly removal of structures existing on the subject property is sought for by him; in any circumstances, the removal of existing structures in the subject property cannot be permitted when partition suit is pending and admittedly the respondent herein is not in the possession of the said property;
(d) however, the respondent cannot be asked to stall his suit proceedings indefinitely till after petitioners’ partition suit is disposed off since MSA No.39/2019 is pending on the civil side of this Court wherein an interim order of stay is said to have been granted; therefore, justice can be meted out to both the sides by permitting the trial and disposal of respondent’s suit in O.S. No.772/2014 subject to the rider that the decree to be passed therein shall not be given effect to or executed or enforced till after petitioners’ partition suit is disposed off.
In the above circumstances, this writ petition is disposed off with the following directions:
The suit in O.S.No.772/2014 filed by the respondent shall go on as usual; however, the judgment and decree if made in the suit shall not be put in execution or otherwise enforced or otherwise acted upon till after petitioners suit in O.S.No.23/2011 is tried and disposed of and subject to its result.
Sd/- JUDGE Snb/