IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT *PETITION No.34021 OF 2014 *(GM-CPC) BETWEEN:
1. SRI B.MALLIKARJUNAPPA S/O MALLAPPA AGED ABOUT 53 YEARS RESIDING AT DWARALLI VILLAGE MALLAPURA POST ANAVATII HOBLI, SORABA TALUK SHIVAMOGGA DISTRICT 2. SRI B.CHANNAPPA S/O MALLAPPA AGED ABOUT 55 YEARS ASSISTANT RFO HAVERI RANGE, HAVERI HAVERI DISTRICT …PETITIONERS (BY SRI S.SHIVAMURTHY, ADVOCATE) AND 1. SRI B.BASAVANTHAPPA S/O NINGAPPA AGED ABOUT 61 YEARS AGRICULTURIST R/O DWARALLI VILLAGE MALLAPURA POST ANAVATTI HOBLI SORABA TALUK SHIVAMOGGA DISTRICT – 577 429 2. SRI B.SURENDRAPPA S/O NINGAPPA AGRICULTURIST R/O DWARALLI VILLAGE MALLAPURA POST ANAVATTI HOBLI SORABA TALUK SHIVAMOGGA DISTRICT – 577 429 *Corrected Vide Chamber Order Dated 23.07.2019.
3. SRI B.SHIVAPPA S/O NINGAPPA AGED ABOUT 58 YEARS AGRICULTURIST R/O DWARALLI VILLAGE MALLAPURA POST ANAVATTI HOBLI SORABA TALUK SHIVAMOGGA DISTRICT – 577 429 4. SRI B.SHEKHARAPPA S/O NINGAPPA AGED ABOUT 55 YEARS AGRICULTURIST R/O DWARALLI VILLAGE MALLAPURA POST ANAVATTI HOBLI SORABA TALUK SHIVAMOGGA DISTRICT – 577 429 … RESPONDENTS (BY SRI S.V.PRAKASH, ADVOCATE FOR R1 TO R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records and quash the impugned order at Annex-A dated 26.03.2014 in M.A.No.2/2014 on the file of the Civil Judge (Sr.Dn.) and JMFC, at Soraba and allow the petition and etc.
This Writ Petition coming on for Preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioners being the defendants in a title suit in O.S.No.11/2013 filed by the respondents herein are invoking writ jurisdiction of this Court for assailing the order dated 26.03.2014, a copy whereof is at Annexure – A, whereby the learned Senior Civil Judge, Soraba, having reversed the order of the trial court and having allowed respondents’ M.A.No.2/2014, has granted injunctive relief in favour of the respondents herein. After service of notice, the respondents having entered appearance through their counsel, resist the writ petition.
2. Learned counsel for the petitioners submits that the trial court having considered all aspects of the matter, had denied injunctive relief to the respondents; that being so, the lower Appellate Court could not have upset the order of the trial court in M.A.No.2/2014 filed by the respondents, having adopted a very casual approach. He further complains that the lower Appellate Court has not adverted to the relevant points urged by the petitioners. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the respondents, per contra contends that the impugned order is not vulnerable either in law or on facts; the same has been in operation since March 2014 and now that we are in 2019; the trial of the suit itself is coming to an end, now that matter having been posted for cross examination of the witnesses; thus, regardless of irregularity in the impugned order, the indulgence of this court is not warranted at this length of time. So contending, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the parties and I have perused the petition papers; I have also perused the statement of objections; this Court declines to grant indulgence in the matter for the following reasons:
a). The suit is of the year 2013; the trial Court having denied relief to the respondents; the learned Senior Civil Judge in respondents Appeal in M.A.No.2/2014 has granted injunctive relief after considering all aspects of the matter which the Court below had not appreciated; now that more than 5 years have lapsed since passing of the impugned order, no purpose would be served by setting it aside, especially when the trial of a suit is half a through in the Court below;
b) the parties are related to each other; the father of the petitioners namely Mallappa having gone in adoption vide registered Adoption Deed dated 15.02.1935, is not much in dispute; if that be so, what rights the petitioners can urge is bit difficult to appreciate, in the subject property; the registered Partition Deed dated 6.5.2002 is also not much in dispute; in any event, one half share of the respondent/plaintiff is not in dispute at all, the other one half needing adjudication; keeping all these things in view, the lower Appellate Court has made the impugned order; justice of the case does not warrant setting aside of the impugned order.
In the above circumstances, this writ petition stands dismissed.
The observations herein above made being confined to disposal of the writ petition, shall not influence the decision making in the suit.
No costs.
Sd/- JUDGE KTY