IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.14434 OF 2019 (GM-CPC) BETWEEN:
SRI AFSAR PASHA S/O MOHAMMED ISMAIL AGED ABOUT 47 YEARS R/O MAIN ROAD-577 101 RAMANHALLI, CHIKKAMAGALURU ... PETITIONER (BY SRI VIGNESHWAR S SHASTRI, ADV.) AND:
SRI S.R.KUMAR S/O REVANASIDDAPPA AGED ABOUT 44 YEARS BUSINESSMAN R/A BEHIND KENCHARAYA SWAMY TEMPLE, RAMANAHALLI EXTENSION CHIKKAMAGALURU TOWN-577 101 …RESPONDENT (BY SRI PRAVEEN KUMAR RAIKOTE FOR SRI S.K.KALLEGOWDA, ADVOCATES FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.03.2019 PASSED ON I.A. NO.VII IN O.S.NO.237/2017 ON THE FILE OF III ADDITIONAL CIVIL JUDGE & JMFC, CHIKKAMAGALURU AS PER ANNEXURE-E AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The defendant has filed the present writ petition against the order dated 13.03.2019 passed on I.A. No.7 in O.S. No.237/2017 dismissing the application filed by the defendant under Section 10 of Code of Civil Procedure.
2. The respondent, who is the plaintiff, has filed the suit in O.S. No.237/2017 for possession of plant ‘B’ schedule property and for damages for causing obstruction to make construction over the plaint ‘A’ schedule property and etc. Written statement has been filed by the petitioner herein denying the plaint averments and sought for dismissal of the suit.
3. When the matter was posted for evidence, at that stage, present petitioner-defendant filed an application under Section 10 of Code of Civil Procedure to stay the present suit till the final disposal of appeal in R.S.A. No.2007/2016 pending before this Court reiterating the averments made in the written statement. The same was opposed by the plaintiff by filing objections. The trial Court considering the application and objections, by the impugned order dated 13.03.2019 dismissed the application. Hence, the present writ petition has been filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Vigneshwara S. Shastri, learned counsel for the petitioner contended that the impugned order passed by the trial Court dismissing the application filed by the defendant under Section 10 of Code of Civil Procedure is erroneous and contrary to the material on record. The trial Court ought to have stayed the proceedings by allowing the application. He further contended that the impugned order passed by the trial Court cannot be sustained and sought to allow the writ petition.
6. Per contra, Sri S.K.Kallegowda, learned counsel for respondent sought to justify the impugned order and contended that application filed by the defendant is not maintainable. He would further contend that in fact, this Court in R.S.A. No.2007/2016 dated 03.07.2018 has clarified that the Principal Civil Judge in O.S. No.237 may proceed with the suit and record evidence. Therefore, the application filed under Section 10 of Code of Civil Procedure is not sustainable and the trial Court has rightly dismissed the application. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel appearing for the parties, it is not in dispute that the plaintiff filed suit for possession in respect of schedule ‘B’ property raising various contentions and the same is disputed by the defendant. It is also not in dispute that R.S.A. No.2007/2016 arising out of O.S. No.49/2013 is pending before this Court between the same parties. This Court by considering the rival contentions by the order dated 13.07.2018 has recorded a finding as follows:
The learned counsel appearing for respondents submits that O.S. No.49/2013 was filed by the appellant herein for a declaration that he has perfected his title by way of adverse possession and for a decree of permanent injunction. Subsequently, the respondent No.5 herein has filed O.S. No.237/2017 against the appellant herein for recovery of possession and permanent injunction.
It is submitted by the learned counsel for respondents that the order of status-quo granted in this appeal is coming in the way of proceedings of O.S. No.237/2017. It is hereby clarified that the Principal Civil Judge and J.M.F.C. Chikkamagaluru may proceed with O.S. No.237/2017 and record evidence.
8. In view of the above, the application filed by the defendant under Section 10 of Code of Civil Procedure was subsequent to the order passed by this Court in R.S.A. No.2007/2016 and the very application filed for stay the proceedings is not maintainable. Therefore, the trial Court is justified in dismissing the application and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/-
JUDGE BS