IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 22706 OF 2016 (GM-CPC) BETWEEN:
1. SRI C O KRISHNA, S/O LATE S.B. OBANNA, AGED ABOUT 40 YEARS, 2. SMT. PUTTAVENKATAMMA, W/O LATE S.B. OBANNA, AGED ABOUT 67 YEARS, BOTH ARE RESIDING AT "THIRUPATHI THIRUMALA NILAYA" BEHIND VHP SCHOOL ROAD, CHAMARAJANAGAR TOWN.
(BY SMT. VANITHA DEVI V, ADVOCATE) AND:
SRI C O SRINIVASA, S/O LATE S.P. OBANNA, AGED ABOUT 44 YEARS, R/AT 1ST CROSS, K.P. MOHALA, BEHIND KSRTC BUS STAND, CHAMARAJANAGAR TOWN.
… PETITIONERS … RESPONDENT (BY SRI. SOMASHEKHAR KASHIMATH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 15.03.2016 PASSED IN M.A.31/2015 ON THE FILE OF THE COURT OF CIVIL JUDGE SR. DIVISION AND CJM CHAMARAJANAGARA AT ANNEX-A CONSEQUENTLY SET ASIDE THE ORDER DATED 07.08.2015 ON I.A.1 UNDER ORDER 39 RULE 1 AND 2 OF CPC PASSED IN O.S.293/2013 BY ADDL. CIVIL JUDGE (JR. DVN)., AND JMFC AT CHAMARAJANAGARA AT ANNEX-B.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in a money suit filed by the respondent in O.S.No.293/2013 are invoking the writ jurisdiction of this Court seeking to lay a challenge to the order dated 15.03.2016, a copy whereof is at Annexure-A whereby the learned Civil Judge, Senior Division, Chamarajanagara having dismissed petitionerss’ MA No.31/2015 has confirmed the order dated 07.08.2015 made by the learned Additional Civil Judge, allowing the respondent’s application in IA No.1 filed under Order XXXIX Rules 1 & 2 of CPC, 1908.
2. After service of notice, respondent-plaintiff having entered appearance through his counsel, strongly opposes the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to interfere in the matter for the following reasons:
a) both the learned trial judge in O.S.No.293/2013 and the learned appellate judge in M.A. No.31/2015 having exercised their discretion in their accumulated wisdom have granted the interim relief to the respondent;
it is a settled position of law that the orders which are the product of exercise of discretion ordinarily do not merit deeper scrutiny at the hands of this Court exercising the writ jurisdiction under Article 227 of the Constitution of India, as held by the Apex Court in the case of TRIMBAK GANGADHAR TELANG & ANOTHER VS. RAMCHANDRA GANESH BHIDE & OTHERS, AIR 1977 SC 1222;
b) the findings prima facie recorded by the Courts below being concurrent, the writ court ordinarily do not interfere in the absence of an error apparent on the face of the record that goes to the root of the matter; it again is a settled position of law that a mere error of law or fact howsoever apparent on the face of record does not warrant indulgence of writ Court in the absence of the prejudice occasioned thereby; and, c) the contentions of the petitioners that the provisions of Order XXXIX Rules 1 & 2 of CPC,1908 do not provide for the kind of order made by the learned trial judge and therefore the same ought to have been set at naught by the learned appellate judge appears to be too farfetched an argument; once it is shown that the civil courts have such jurisdiction and power which is coextensive with requirement of doing justice between the parties in the given circumstances regardless of the wrong provision of law quoted.
In the above circumstances, the writ petition being devoid of merits, stands dismissed.
No costs.
Sd/- JUDGE Bsv