IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR M. F. A. NO.2319 OF 2012 (CPC) BETWEEN :
SRI M. NARASAPPA @ CHIKKANNA S/O. LATE MUNIYELLAPPA AGED ABOUT 45 YEARS R/AT NO.5, VADDARAPALYA HORAMAVU AGARA VILLAGE, BENGALURU - 560 043.
(BY SRI V. CHANDRAPPA, ADVOCATE - ABSENT) AND :
... APPELLANT 1. D. V. R. LAYOUT RESIDENTS WELFARE ASSOCIATION REP. BY ITS SECRETARY, SRI H. R. NARAYANA SWAMY S/O. K. H. GOWDA AGED ABOUT 46 YEARS, NO.16, I CROSS, BEHIND DVR LAYOUT, NEAR NAGA PARADISE, BABASABARAPALYA KALYAN NAGAR POST BENGALURU - 46 2. SRI RAMAKRISHNA REDDY S/O. LATE RAMASWAMY REDDY AGED ABOUT 72 YEARS, R/AT NO.108, AMBEDKAR COLONY BABASABARAPALYA KALYAN NAGAR POST BENGALURU - 560 043 3. THE COMMISSONIER B.B.M.P.
CORPORATION BUIDLNIG, J. C. ROAD, BENGALURU 560 002 4. THE JOINT COMMISSIONER B.B.M.P.
MAHADEVAPURA BENGALURU.
(BY SRI LOKANATH T. V., ADVOCATE FOR R1;
... RESPONDENTS SRI KEMPANNA, ADVOCATE FOR R3 AND R4 – ABSENT; R2 - SERVED) THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(R) OF CPC, AGAINST THE ORDER DATED:20.1.2012 ON IA.NO.3 PASSED IN O.S.NO.27280/2011 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL, BENGALURU, ALLOWING THE APPLICATION FILED UNDER ORDER XXXIX RULES 1 & 2 OF CPC.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT Counsel for the appellant absent. No representation.
2. In the present case considering the submission of the counsel for the appellant about the possibility of settlement, several adjournments were granted but on previous two occasions the counsel for the appellant has not appeared. Hence, this matter was posted for admission as last chance. But there is no representation by counsel for the appellant.
3. This appeal is filed for setting aside the order dated 21.01.2012 on I.A. No.III under Order XXXIX Rule 1 and 2 of C.P.C. in O.S. No.27280 of 2011 passed by XXVIII Additional City Civil Judge, Mayohalli, Bengaluru (CCH No.29).
4. The grounds stated in the appeal are that the appellant purchased the site bearing No.20/A katha No.282/366/1 in property No.58 of Babasabarapalya from second respondent Ramakrishna Reddy through registered sale deed. The appellant had put up a shed on the said property. The first respondent – Association filed a suit in O.S. No.27280 of 2011 wherein I.A. No.II was filed under Order I Rule 8 clause (2) of C.P.C. and I.A. No.III was filed under Order XXXIX Rule 1 and 2 of C.P.C. The trial Court was pleased to hear the arguments on I.A. No.III under Order XXXIX Rule 1 and 2 of C.P.C. by keeping I.As. No.I and II pending. Thereafter the trial Court was pleased to allow the application filed by plaintiff (first respondent) under Order XXXIX Rule 1 and 2 of C.P.C. Being aggrieved by the said order, this appeal is filed.
5. The averments made in the appeal disclose that as per the agreement dated 19.05.2001 there was a Government road shown in Sy. No.58 upto the property of first defendant. The said common road is 40ft. wide and it is situated between site Nos.20 and 21 which is left for use of residents of Babasabarapalya. The main grievance of the appellant is that the order on I.A. No.III should have been passed after inviting the general public and without hearing the general public, even though I.A. No.II has been filed by the plaintiff to issue public notice.
6. This Court had no opportunity to hear the submissions of the counsel for the appellant. As could be seen from the records, no interim orders are passed in this appeal to stay the interim order passed by the trial Court in O.S. No.27280 of 2011. There is no assistance by the counsel to prove the legal right of the appellant or to show that legal requirement was mandatory but the same was not followed.
7. For the foregoing reasons, there are no valid grounds to admit the appeal. Accordingly, appeal is dismissed.
Sd/- JUDGE hnm