Sri S Srinivasa vs Smt Saraswathi on 8 September, 2020

[Cites 2, Cited by 1]

Karnataka High Court

Sri S Srinivasa vs Smt Saraswathi on 8 September, 2020

Bench: P. B. Bajanthri

                         1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 08TH DAY OF SEPTEMBER, 2020

                       BEFORE

        THE HON'BLE MR.JUSTICE P. B. BAJANTHRI

             M.F.A.NO.1621/2020 (CPC)
BETWEEN

SRI.S.SRINIVASA
S/O SRI KUMAR.P,
AGED ABOUT 34 YEARS,
R/AT NO.480, 1ST C MAIN,
J.P.NAGAR, 4TH PHASE,
BANGALORE-560078
REPRESENTED BY HIS GPA HOLDER
SMT.CHRISTINA.K
W/O KUMAR.P,
AGED ABOUT 35 YEARS,
R/AT NO.273, 4TH 'C' MAIN,
16TH CROSS, J.P.NAGAR,
BANGALORE-560078                        ... APPELLANT

(BY SRI. VENKATARAMI REDDY.E, ADVOCATE FOR
SRI. M.MOHAN KUMAR, ADVOCATE)

AND

SMT.SARASWATHI
W/O CHANDRASHEKAR PRABHU,
AGED ABOUT 44 YEARS,
R/AT NO.13/1-1, 3RD CROSS,
MARIYAPANPALYA, INDUSTRIAL SUBURB AREA,
YESWANTHAPURA,
BANGALORE-560022
                                   ... RESPONDENT
(BY SRI.S.SHAKER SHETTY AND
SRI.ANIL KUMAR SHETTY, ADVOCATE)
                             2



      THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(r)
OF CPC AGAINST THE ORDER DATED 04.02.2020 PASSED
ON I.A. NO.1 IN OS.NO.26505/2019 ON THE FILE OF THE
LXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
M.H.UNIT, BENGALURU (CCH-74), REJECTING THE I.A.
FILED UNDER ORDER 39 RULE 1 AND 2 R/W UNDER
SECTION 151 OF CPC.

     THIS MFA COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCE, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:

                      JUDGMENT

With the consent of both the parties, the matter is taken up for final disposal.

2. In the instant appeal, the appellant has questioned the validity of the order dated 04.02.2020 passed in O.S.No.26505/2019 on I.A. filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC on the file of the LXXIII Additional City Civil and Sessions Judge, Mayo Hall unit, Bengaluru (CCH-74).

3. The plaintiff filed a suit for permanent injunction against the defendant restraining him from interfering with the plaintiff's peaceful possession and 3 enjoyment of the suit schedule property. He had also filed I.A. seeking ex-parte ad-interim injunction against the defendant. He had the benefit of ex-parte injunction. Defendant had appeared through his counsel and filed objection to I.A. and written statement. The trial Court after due examination of records framed points for consideration which are as follows:-

" 1. Does the Plaintiff made out prima-

facie case, further made out a case that if injunction is not granted he will be put to irreparable hardship or injury and balance of convenience is lies in favour of plaintiff?

2. What Order?"

4. The crux of the issue in rejecting the appellant's-plaintiff's I.A. under Order XXXIX Rule 1 and 2 read with Section 151 of CPC and revoking the ex-parte order dated 16.11.2019 and so also holding that I.A. for extension of permanent injunction do not survive for consideration, the plaintiff's land is not 4 identified by assigning site number. The suit schedule property refers to survey No.22. The survey No.22 consists of 1 acre 2 guntas of converted land. Though the plaintiff submitted that he had purchased the site measuring East to West 30 feet, North to South 33.3 feet in all 999 sq.ft arising out of 4,000 sq. ft. bounded by East: Road, West by: Remaining portion of the same, the records do not reveal site number of the appellant-plaintiff so also neither any adjacent property. In the absence of identification of suit property in survey No.22, Nyanappanahalli Village consist of large extent of land. That apart, suit property does not bear khatha number. The trial Court examined the aforesaid issue and discussed in paragraph 14 of the order dated 04.02.2020 and so also cited decision in the case of K.Gopala Reddy (deceased) by L.Rs. V/s. Suryanarayana and others reported in 2004 (1) KCCR 662 wherein it 5 is held that 'to the extent that plaintiff has failed to establish to identify the property, question of granting injunction in his favour does not arise at all.'

5. Faced with these facts and circumstances, appellant has not made out a case so as to interfere with the order dated 04.02.2020 passed in O.S.No.26505/2019 on the file of the LXXIII Additional City Civil and Sessions Judge, Mayo Hall unit, Bengaluru (CCH-74). Accordingly, the appeal stands dismissed.

In view of the disposal of the main petition, I.A.No.2/2020 do not survive for consideration and it stands disposed.

Sd/-

JUDGE KPS

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