IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.32106 OF 2018 (GM - CPC) BETWEEN:
SRI.EJAS PASHA, S/O SRI.SYED AMINUDDIN, AGED ABOUT 52 YEARS, R/AT NO.50, 3RD CROSS, KRISHNAMMA GARDEN, BENSON TOWN POST, BENGALURU – 560 046.
(BY SRI.R.B.SADASIVAPPA, ADV.,) AND:
SRI.C.N.SUDARSHANA, S/O LATE SRI.C.L.NARAYANAMURTHY, MAJOR, R/AT NO.14/2, JHANAVI RESIDENCY, FLAT NO.302, HMT MAIN ROAD, DIVANARAPALYA, MATTIKERE, BENGALURU – 560 054.
… PETITIONER … RESPONDENT (BY MR.VIJAYAKUMAR K.O., ADV., FOR C/R (ABSENT)) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.06.2018 PASSED BY THE 1ST ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU ON IA NO.3 IN O.S.NO.542/2011 VIDE ANNEXURE – E ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. R.B.Sadashivappa, learned counsel for the petitioner.
None for respondent.
The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 23/06/2018 passed by trial Court by which, the application filed by the petitioner under Section 151 of CPC, seeking relief of restoration of possession has been rejected.
3. The facts giving rise to filing of this petition briefly stated are that the plaintiff filed the suit seeking relief of permanent injunction. The defendant was in possession of the suit land and an order of status quo was initially granted in favour of the plaintiff, which was continued from time to time. However, the order of status quo was not continued subsequently.
4. It is the case of the defendant that the plaintiff taking advantage of the aforesaid situation, has dispossessed the plaintiff from the site in question. The defendant therefore filed an application under Section 151 of the CPC. However, the aforesaid application has been rejected by the trial Court by impugned order dated 23/06/2018.
5. Learned counsel for the petitioner submitted that the trial Court has grossly erred in holding that the remedy of the petitioner is to file an application under Section 6 of the Specific Relief Act and since the application has been filed one year after dispossession, the same cannot be entertained.
6. I have considered the submissions made by learned counsel for the petitioner and perused the records.
7. Admittedly, as per the averments made by the petitioner/defendant in the application, the petitioner has been dispossessed during the pendency of the suit. The Court has exercised powers under Section 151 of the CPC to direct maintenance of status quo anti. However, the aforesaid aspect of the matter has not been appreciated by the trial Court and the application filed by the petitioner under Section 151 of the CPC has not been dealt with on merits. The impugned order suffers from the jurisdictional infirmity as well as error apparent on the face of record. The impugned order therefore cannot be sustained in the eye of law.
8. The trial Court is directed to decide the application filed by the petitioner afresh after affording an opportunity of hearing to the parties by a speaking order within a period of one month from the date of receipt of a copy of this order.
9. Accordingly, the writ petition is disposed of.
Sd/- JUDGE Msu