IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.2145 OF 2018 (CPC) BETWEEN:
1. SRI RAVI @ S.RAVI, S/O. LATE SUBRAMIANI, AGED ABOUT 45 YEARS.
2. SMT. JAYA, W/O S.RAVI, AGED ABOUT 39 YEARS. APPELLANTS BOTH APPELLANTS ARE RESIDING AT NO.862, GROUND FLOOR, KALIDASANAGAR, HOSAKEREHALLI, VILLAGE, 2ND CROSS, 7TH BLOCK, 4TH MAIN, BSK 3RD STAGE, BENGALURU – 85 (BY SRI.KAMALESHWARA POOJARY, ADVOCATE) AND:
1. SMT.CHANDRAKALA, W/O.LATE SURESH, AGED ABOUT 47 YEARS.
2. SMT.MANGALA PRIYA, W/O.SUDHAKARA, AGED ABOUT 30 YEARS. ...RESPONDENTS (BY SRI G.A.SRIKANTE GOWDA, ADVOCATE FOR R1 AND R2) DEFENDANTS NO.1 AND 2 ARE RESIDING AT NO.862, FIRST FLOOR, KALIDASANAGAR, HOSAKEREHALLI VILLAGE, 2ND CROSS, 7TH BLOCK, 4TH MAIN, BSK 3RD STAGE, BENGALURU – 85.
**** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC AGAINST THE ORDER DATED 16.02.2018 PASSED ON I.A.NO.1 IN O.S.NO.7462/2011 ON THE FILE OF THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-26), DISMISSING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred for setting aside the order dated 16.02.2018 passed by the X Additional City Civil & Sessions Judge, Bengaluru (CCH-26) in O.S. No.7462/2011 on I.A. No.1 filed under Order 39 Rule 1 and 2 of CPC.
2. The facts leading to this appeal are that the plaintiffs /appellants had filed a suit for permanent injunction against the defendants restraining them from interfering with the lawful possession of the plaintiffs in respect of the suit schedule property. The suit was resisted by the defendants on several grounds. It is contended that originally, the suit schedule property was allotted in the name of Chinnappa i.e., the ancestor of the plaintiffs as well as the defendants and after his death, the Bangalore Development Authority has executed a Sale Deed dated 12.08.2008 in favour of defendant No.2. Thus, the defendants became the absolute owners of the property and they are in possession of the suit schedule property.
3. The plaintiffs had initially filed the suit for partition in O.S. No.4170/2002 and the same was dismissed for non-prosecution. Thereafter, Miscellaneous Petition No.508/2006 was filed, which also came to be dismissed for non-prosecution. Suppressing all these facts, the plaintiffs have filed a suit for permanent injunction. The defendants are in peaceful possession and enjoyment of the schedule property by virtue of the Sale Deed executed by Bangalore Development Authority in the name of defendant No.2. The plaintiffs are not entitled for any interim orders and no temporary injunction can be granted.
4. The present suit was filed in the year 2011.
Even though, I.A. No.1 was filed under Order 39 Rule 1 and 2 of CPC by the plaintiffs along with the plaint, the said interlocutory application was not heard and no orders were passed till 16.02.2018. The main contention of the plaintiffs is that their possession was not disturbed by the defendants, as such, they had not pressed that application till the year 2018. It is only when the defendants started obstructing their possession, the plaintiffs were compelled to seek orders on I.A. No.1 to safeguard their interest and possession of suit schedule property.
5. The interlocutory application was rejected by the court below only on the basis of the admission said to have been made in the cross examination of PW1, which reads as under:
“It is true to suggest that, myself and plaintiff No.2 and children residing in the 2nd floor of property bearing No.904”.
6. Even though the trial court considering exhibits-P1 to P8 has observed that photographs marked at exhibits-P4 to P8, shows that the plaintiffs are in possession, but has failed to grant the interim order, which has resulted in miscarriage of justice.
7. In view of the submission made by both learned counsels, it is evident that both parties namely plaintiffs and defendants have led their evidence before the trial court and it is at the stage of arguments. It is pertinent to note that no interim orders were operating against the defendants from the date of filing of the suit till dismissal of I.A. No.1 filed under Order 39 Rule 1 and 2 of CPC. It is submitted that, the matter before trial court is at the stage of arguments. Hence, the parties may seek the relief based on the oral and documentary evidence placed on record. As such, there are no valid grounds to interfere with the orders passed by the court below on interlocutory application.
8. Considering the submissions of both counsels, the matter may be remanded to the trial court to enable the parties to seek orders on merits.
9. This court is of the opinion that dispute could be resolved by directing expeditious disposal of the suit pending in O.S. No.7462/2011 pending before the jurisdictional court. Ends of justice would require that the parties be made known of their rights at the earliest in order to prevent multiplicity of proceedings.
10. For the aforesaid reasons, the Miscellaneous First Appeal is disposed of with a direction the parties to appear before the trial court.
Sd/- JUDGE SJ