IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.3046 OF 2019 (CPC) BETWEEN:
Sri. Thimmarayappa, Son of Late Muniyappa, Aged about 61 years, Residing at No.217, 5th Cross, 4th Main, Bhuvaneshwari Nagar, BSK 3rd Stage, 3rd Phase, Bengaluru-560085.
(By Sri. N.R.Naik, Advocate) AND:
The Commissioner Bengaluru Development Authority, Kumarapark West, Bengaluru.
…Appellant ... Respondent This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 25.02.2019 passed on I.A.No.2 in O.S.No.5663/2017 on the file of the LXI Additional City Civil Judge, Bengaluru (CCH.62), Dismissing I.A.No.2 filed under Order 39 Rules 1 & 2 read with Section 151 of CPC, This MFA coming on for admission this day, the Court made the following:
ORDER The plaintiff in O.S.No.5663/2017 has preferred this appeal. In the suit he applied for temporary injunction by making an application under Order 39 Rules 1 and 2 CPC. On 25.02.2019, the trial Court dismissed the said application and holding that the suit was not maintainable, the trial Court dismissed the suit also. This appeal is filed challenging the order of dismissing the application filed under Order 39 Rules 1 and 2 CPC.
2. Learned counsel for the appellant submits that questioning the dismissal of the suit, the plaintiff/appellant has preferred Regular First Appeal. Therefore, I am of the opinion that when the suit itself is not pending, this Miscellaneous First Appeal is not maintainable. In the Regular First Appeal itself, the appellant/plaintiff can seek for an order of temporary injunction if the facts and circumstances require an order of temporary injunction to be granted. With these observations this appeal stands disposed of.
KMV/-
Sd/- JUDGE