Karnataka High Court
K M Thippeswamy S/O Late Muregappa, ... vs Sri Rajappa on 8 September, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 16699 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16699 OF 2025 (GM-CPC)
BETWEEN:
K M THIPPESWAMY
S/O LATE MUREGAPPA,
SINCE DEAD BY HIS LRS
1. K.T. RUDRAMMA
W/O JAYAPPA,
D/O LATE THIPPESWAMY,
AGED ABOUT 69 YEARS,
R/O SIDDAVVANA DURGA VILLAGE,
TUVUVANUR HOBLI,
CHITRADURGA TALUK 577 501
2. SHARADAMMA
W/O SIDDANNA GOWDARU
D/O LATE THIPPESWAMY,
Digitally AGED ABOUT 66 YEARS,
signed by R/O ESHWARAI EXTENSION,
NAGAVENI TAMATAKALLU ROAD,
Location: CHITRADURGA TOWN 577 501
High Court
of Karnataka
3. REVAMMA
W/O UMAPATHI,
D/O LATE THIPPESWAMY,
AGED ABOUT 63 YEARS,
R/O BIDARAKERE VILLAGE,
JAGALORE TALUK 530 068.
4. SAKAMMA
W/O UMAPATHI,
D/O LATE THIPPESWAMY,
AGED ABOUT 61 YEARS,
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WP No. 16699 of 2025
HC-KAR
R/O GUDALU VILLAGE,
DAVANAGERE TALUK 577 001.
5. VIJAYAMMA
W/O PRAKASH,
D/O LATE THIPPESWAMY,
AGED ABOUT 58 YEARS,
R/O GUDALU VILLAGE,
DAVANAGERE TALUK 577 001
6. JYOTHIRLINGA K.T.
S/O LATE THIPPESWAMY,
AGED ABOUT 46 YEARS
R/O MUDDAPURA VILLAGE
CHITRADURGA TALUK 577501
...PETITIONERS
(BY SRI. KANTHARAJAPPA M G., ADVOCATE)
AND:
1. SRI RAJAPPA
S/O KALLALPPA
AGED ABOUT 54 YEARS
OCC . AGRICULTURIST,
R/O MUDDAPURA VILLAGE
CHITRADURGA TALUK 577501
2. PANCHAYATH DEVELOPMENT OFFICER
MUDDAPURA GRAMA PANCHAYATH OFFICER,
MUDDAPURA VILLAGE,
CHITRADURGA TALUK 577501
...RESPONDENTS
(BY SRI. K. MURTHY, ADVOCATE FOR R1)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ORDER PASSED
BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND JMFC AT
CHITRADURGA IN MA NO. 07/2024 DATED 27.02.2025
PRODUCED AS ANNEXURE -H AND LEARNED I ADDL. CIVIL
JUDGE AND JMFC AT CHITRADURGA IN OS NO. 495/2022 ON
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WP No. 16699 of 2025
HC-KAR
IA NO. 5 DATED 01.03.2024 PRODUCED AS ANNEXURE -F TO
THE WP.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an order of the First Appellate Court, which confirms the order of grant of an injunction under Order XXXIX Rules 1 and 2 of the CPC in favour of the defendant.
2. Heard the learned counsel Sri.Kantharajappa M.G., appearing for the petitioners and the learned counsel Sri.K.Murthy, appearing for respondent No.1.
3. Facts in brief, germane, are as follows:
A suit for injunction is instituted by the petitioners in O.S.No.495/2022, in which, a counterclaim is also registered.
The suit, in which, the petitioner institutes, an application is filed under Order XXXIX Rules 1 and 2 of the CPC, which is not granted. The defendant also had filed identical application in -4- NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR the counterclaim that was so registered. Qua the counterclaim schedule property, injunction was granted. This is challenged by the petitioners-plaintiffs before the First Appellate Court. the First Appellate Court rejects the same.
4. Learned counsel appearing for the petitioners is before the Court calling in question the order of the Trial Court and that of the First Appellate Court granting injunction in favour of defendant qua the suit schedule property.
5. Learned counsel appearing for the petitioners seeks to place reliance upon the judgement of the Division Bench in the case of SMT. SHANKUNTHALAMMA AND OTHERS V. SMT. KANTHAMMA AND OTHERS1 to buttress his submission that a defendant cannot maintain an application under Order XXXIX Rules 1 and 2 of the CPC against the plaintiffs and would submit that the order of grant of injunction and its confirmation both are contrary to law.
6. Learned counsel appearing for the respondents would submit that respondents had preferred a counterclaim 1 ILR 2014 KAR 6025 -5- NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR qua the counterclaim schedule property injunction is granted, they are entirely different. Therefore, the petitioners as is projecting a ground that is a very big ground to maintain the subject petition.
7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. In the suit, the application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC is not granted, but the injunction is granted qua the counterclaim schedule property. The order of the concerned Court granting relief in favour of the counterclaim schedule property reads as follows:
COUNTER CLAIM SCHEDULE Vacant site property bearing panchayath katha and assessment No. 183, East-West 19.80 meters and North-South 23 meters, total measuring 455.40 meters, situated at Muddapura village, Turuvanuru Hobli, Chitradurga Taluk and District, bounded as under:
East by : Property of L.K.Manjunatha
West by : Property of L.K Shivakumara
North by : Property of L.K.Rajanna (defendant No.1)
South by : Property of Gowdru Basappa
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2. In the affidavit filed along with the I.A.No.5, defendant No.1 submits that, he has filed counter claim in the present case and that, he is lawful owner in possession of the counter claim property and that, the counter claim schedule property is ancestral property of defendant's family and the same was partitioned as per partition deed dated: 12.07.2017 and the counter claim schedule property was allotted to his share. It is submitted that, the plaintiff is not having any legal right, title or possession over the counter claim schedule property and is not having any relationship with defendant No.1 and his family members and he is causing interference with the possession and enjoyment of the defendant No:1 over the counter claim schedule property. Hence, the present application is filed. With all these contentions, prays to allow the application.
3. The plaintiff has filed objections to the I.A.No.5 by denying the averments of the application and has contended that, the application is not maintainable either in law or on facts and that, the averments of the affidavit filed by the defendant are all false and that the defendants have not made out any grounds for injunction against the plaintiff and that, the plaintiff is aged person and entire family is depending on the suit schedule property and that, defendant has no right to claim the relief of specific performance of contract on the bogus document. It is submitted that, the plaintiff is the owner and in possession of the suit schedule property and that, the defendant has filed the application only on concocted and created documents and if the temporary injunction is granted, much hardship will be caused to the plaintiff. With all these contentions, prays to dismiss the I.A.No.5.
4. I have heard the arguments advanced by advocate for plaintiff and defendant No.1. Perused the materials on record.-7-
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5. From the above materials, the points that arise for consideration of this Court are as follows;
1. Whether the defendant No.1 has made out a prima facie case?
2. Whether the balance of convenience lies in favour of the defendant No.1?
3. Whether the defendant No.1 will be put to irreparable loss and injury which cannot be compensated in any terms, if the temporary injunction is not granted?
4. What order?
6. This Court answers the above points as follows:-
Point No.1: Affirmative Point No.2: Affirmative Point No.3:Affirmative Point No.4: As per the order for the following:
:REASONS:
7. Point No.1: The I.A. No.5 is filed by the defendant seeking relief of temporary injunction against the plaintiff in respect of counter claim schedule property.
8. The plaintiff has filed the present suit for the relief of permanent injunction and mandatory injunction in respect of suit schedule property and the defendant No.1 has filed counter claim for the relief of permanent injunction in respect of counter claim property.
9. It is the case of defendant No.1 that counter claim schedule property was allotted to his share by virtue of partition deed dated: 12.07.2017 and he is in possession and enjoyment of counter claim schedule property. To show the said fact, defendant No.1 has produced copy of partition deed dated: 12.07.2017 and -8- NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR it shows that defendant No.1 and his brothers have partitioned their family properties and the page No.2 of said partition deed shows that counter claim schedule property is allotted to the share of defendant No.1. Further, the defendant No.1 has produced form No.9 pertaining to counter claim schedule property and it shows that defendant No.1 is the owner in possession of counter claim schedule property as per partition deed. The said documents show the rights and possession of defendant No.1 over counter claim schedule property.
10. On the other hand, plaintiff has produced tax demand extract pertaining to property bearing assessment No.56/977 and mahazar drawn by the surveyor pertaining to property I.D.No.1151000203100400080 and copy of unreadable sale deed dated: 09.04.1909. The documents produced by the plaintiffs are not pertaining to counter claim schedule property and that, the said documents are pertaining to suit schedule property and they do not show that defendant No.1 is not in possession of counter claim schedule property. On the other hand, documents produced by defendant No.1 shows his title and possession over the counter claim schedule property.
11. Further, the boundaries mentioned by the plaintiff in respect of suit schedule property towards east, west and North do not tally with the boundaries of the counter claim schedule property and that, the plaintiff has not produced any documents pertaining to suit schedule property in between 1909 to 2015 in respect of suit schedule property, hence at this stage the version of plaintiff that defendants have filed false application does not inspires confidence. Hence, considering that the partition deed dated: 12.07.2017 through which the defendant property is a registered document and considering that plaintiff No.1 is claiming to be in possession of counter claim schedule has not produced any documents pertaining to the counter claim schedule -9- NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR property and considering the differences in respect of boundaries of the suit schedule property and counter claim schedule property, this Court is of the view that defendant No.1 has made out prima facie case regarding his possession over suit schedule property.
12. In respect of interference, the contention taken by the plaintiff in his written statement/rejoinder filed to the counter claim of defendant No.1 denying the title and possession of defendant No.1 over counter claim schedule property is sufficient to hold that the plaintiff is interfering with possession of defendant No.1 over the counter claim claim schedule property. Hence, at this stage, defendant No.1 has made prima facie case in respect of interference by the plaintiff.
13. Further, considering the pleadings of both the parties, claiming their rights over their respective properties and denying the rights of each other over their respective properties shows that there is a triable issue and that, there are prima facie materials to go for trial. Hence, for the reasons stated above, at this stage considering the documents produced by the defendant No,1 this Court is of the view that the defendant No.1 has made out prima facie case. Accordingly, the point No.1 is answered in affirmative.
14. Reasons for point No.2 and 3: Since both the points are interlinked with each other, in order to avoid repetition of facts and discussions, they are taken up together for common discussion.
15. For the reasons stated while answering point No.1, defendant No.1 has made out prima facie case and as the defendant No.1 has shown his rights and possession over the counter claim schedule property and interference by the plaintiff, if the temporary injunction as sought by the defendant No. 1 is not granted, the rights of the defendant No.1 over the suit schedule property will be defeated and the purpose of filing the counter claim will also be defeated and that, defendant
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NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR No.1 may not able to get the benefits from the counter claim schedule property even after having rights over the same. Hence, the balance of convenience lies in favour of the defendant No.1.
16. Considering that there are no materials on record to show that the defendant No.1 is not in possession of counter claim schedule property and considering the documents produced by the defendant No.1 in support of his rights over the counter claim schedule property, at this stage, if the relief of temporary injunction is not granted, then the plaintiff might interfere with the possession of defendant No.1 over the counter claim property and by the said act defendant No.1 will be put to irreparable loss and injury which cannot be compensated in any terms. On the other hand, as the boundaries and property numbers of suit schedule property and counter claim schedule property are different, plaintiff will not be put to inconvenience. On the other hand considering the right of defendant No.1 over counter claim schedule property, it is the defendant No.1 who will be put to more hardship compared to the plaintiff. Hence, for the reasons stated above, the defendant No.1 has made out sufficient grounds to allow the application. Accordingly, this Court answers point No.2 and 3 in the affirmative.
17. Reasons for point No.4:- For the reasons stated above, this Court proceeds to pass the following:
:ORDER:
The I.A.No.5 filed by the defendant No.1 under Order XXXIX Rule 1 and 2 r/w Sec.151 of C.P.C is hereby allowed.
The plaintiff is hereby restrained by an Order of temporary injunction from interfering with the possession and enjoyment of the counter claim schedule property by the defendant No.1 till disposal of the suit."
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9. This is called in question by the present plaintiffs before the First Appellate Court. The First Appellate Court, by the order, considering the submissions made by the respective learned counsel thereon, rejects the appeal by the following order:
"POINT NO.1:- It is the case of plaintiffs that he is the owner and possessor of the suit schedule property by virtue of sale deed in favor of his father dated 09.04.1909. After death of his father he is in peaceful possession and enjoyment over the said property and became absolute owner and possessor of the suit schedule property and enjoying without interference by any one. It is alleged that defendant No.1 without having any right, title or interest is interfering in the peaceful possession and enjoyment of plaintiff over the suit schedule property. Defendant No.1 filed written statement along with counter claim denying claim of plaintiff and alleged that in fact plaintiff is interfering in his peaceful possession over counter claim property and sought for relief of temporary injunction against plaintiff.
12. Plaintiff to prove his case along with the plaint produced katha extract and tax paid receipts of the suit schedule property along with registered sale deed dated 09.04.1909, whereas defendant no.1 produced partition deed and tax paid receipts and documents pertaining to counter claim property. It is vehemently argued by plaintiff counsel that defendant No.1 cannot seek relief of permanent injunction in the suit filed by plaintiff and therefore trial court erred in granting the said relief. Therefore pray for allowing this appeal by setting aside the order of the trial court.
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13. Whereas defendant No.1 counsel submitted that he has rightly sought for counter claim against plaintiff with respect to counter claim property and trial court not committed any error in granting the said relief as claimed. Defendant no.1 can file counter claim in the suit filed by plaintiff with respect to same property or different property. Defendant no.1 is also having right to claim the relief of temporary injunction against plaintiff. Therefore there is no interference required by this court in the order passed by trial court which is in accordance law. Hence pray for dismissal of appeal by confirming the order of trial court.
14. Plaintiff is seeking relief of permanent injunction with respect the property panchayath No.561977 measuring to an extent of 30x30 feet. Whereas in the same suit defendant No.1 also sought for counter claim against plaintiff with respect the property bearing No. 183 measuring to an extent of 19.80 x 23 meters. Admittedly both the properties of plaintiff and defendant No.1 are not one and the same. Both are claiming their respective right over the said properties by virtue of sale deed as well as registered partition deed. The suit filed by plaintiff as well as counter claim sought by defendant No.1 are for the relief of bare injunction. They both are not disputing each others title over the suit schedule property and counter claim property.
15. It is vehemently argued by plaintiff counsel that defendant cannot seek for the relief of injunction against plaintiff in the suit filed by plaintiff. The said right is only available to plaintiff. To substantiate his argument plaintiff relied upon judgment of Hon'ble High Court of Karnataka ILR 2014 Karnataka 6025 Smt.Shankuntalamma and others Vs. Smt.Kantamma and others wherein it is held that plaintiff and defendant can maintain an application U/Sec.39 rule 1(a) of CPC for the relief set out in the said provisions but in so far as relief under U/Sec.1(b) and (c) is concerned such
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NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR relief is available only to plaintiff and not to defendant in a suit filed against defendant, irrespective of fact that his right to such relief arises to either from the cause of action or cause of action that arises subsequently filing of the suit. However it is upon to defendant to maintain separate suit against plaintiff and seek relief provided U/sec.39 Rule 1(b) and (c) CPC.
16. In the present case in hand defendant No.1 has not filed an application seeking relief of temporary injunction order U/sec.39 rule 1(a) in the suit filed by plaintiff but defendant No.1 filed his written statement along with counter claim and sought for the relief of temporary injunction against counter claim property. He paid Court fee and for the counter claim and sought the relief of temporary injunction against plaintiff with respect to counter claim property and not with respect to suit property. For the said counter claim plaintiff has also submitted his rejoinder denying claim of defendant No. 1.
17. In the suit for the relief of permanent injunction defendant can file counter claim for seeing an injunction concerned to defendant's property if the cause of action arise out of the same transaction or series of transaction. If defendant filed counter claim regarding different property and seek temporary injunction it is very much maintainable if he establish prima facie case, irreparable injury and balance convenience.
18. Counter claim is not same as the suit but it has to be treated like a separate suit within the same proceedings. If plaintiff withdraw the suit even then counter claim can still continue as an independent case. Such being the case in such situation or a temporary injunction sought by defendant in counter claim against plaintiff with respect to the counter claim property is maintainable because defendant can seek relief of temporary injunction against plaintiff with respect the
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NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR counter claim property U/order 39 rule 1(a). The counter claim is treated as suit under order 8 rule 6 (a) CPC. Defendant assumes position of plaintiff in counter claim. Since plaintiff in suit can seek temporary injunction so defendant can also seek injunction with respect counter claim in U/o 39 rule 1(a) CPC.
19. In the present case as defendant no.1 has sought temporary injunction with respect the counter claim he stepped into the shoe of 'plaintiff' and can also seek for the relief of temporary injunction against plaintiff with respect to the counter claim property. In this regard defendant no.1 counsel relied upon judgment of Hon'ble Supre Court in AIR 1996 Supreme Court 2222 Sri. Jagmohan Charla and another Vs. Radhaswamy Sathsang and others wherein similar facts arose between parties and Hon'ble Supreme Court of India held that whether in suit for injunction counter claim for injunction with respect of the same or different property are maintainable. It is held that in a suit for injunction counter claim with respect of different property is also maintainable and defendant can claim any right by way of counter claim in respect of any cause of action that has accrued him even though it is independent cause of action averred by plaintiff.
20. In the present case in hand plaintiff deposed that for him cause of action arose in the month of first week October 2022. Whereas defendant no.1 also stated that cause of action arose for him in the first week of October 2022. Both the suit property and counter claim property are different from one and another. Hence in view of the discussion made above the argument canvassed by plaintiff counsel that the petition for temporary injunction not maintainable in the suit filed by plaintiff cannot be accepted in this case in view of the reasons stated above.
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21. The trial court by considering material available on record came to conclusion that defendant no.1 has established prima facie case and there are sufficient documentary evidence produced on record to establish his possession over the counter claim property. Further there is no material placed by plaintiff to discard documentary evidence adduced by defendant No.1 with respect counter claim property. Hence trial court believing case of defendant No. 1 granted the relief of temporary injunction. Further trial court held that defendant no.1 established prima facie case and irreparable loss would be caused to him, if the relief of temporary injunction as prayed is not granted in his favour. Further it is held that defendant No.1 established by balance of convenience in his favor and he is entitled to the relief of temporary injunction as prayed.
22. The appellate court can not interfer in the order of trial court unless it is established by appellant that trial court misinterpreted and misapplied the law or there is incorrect application of statutory provision. There is no case made out by plaintiff/appellant counsel that trial court misinterpreted the law. Further there is nothing brought on record that trial court decision is based on no evidence or irrelevant evidence. The findings given by the trial court are not contrary to the settled position of law. There is nothing brought on record to show that order passed by trial court is ill- logical or perverse. Further there is no error caused by trial court or irregularity miscarriage of justice mad eout by the appellant.
23. Further it is settled principle of law that appeal cannot be allowed merely because appellate court has different opinion from that of trial court. The Appellate court to interfere in the order passed by trial court must show legal, factual or procedural error by trial court order. Only if trial court passed an order which is perverse against settled principle of law then
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NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR appellate court can interfere in the order passed by trial court, but having different opinion or view the appellant court can not be ground for interference and setting aside trial court order. Appellant counsel failed establish that trial court committed an error by granting the relief of temporary injunction in favor of defendant No.1 by allowing I.A.No.5. I find no reasons to allow this appeal. Accordingly I answer No.1 in Negative.
24. POINT NO.2: For the reasons stated above I proceed to pass the following:
ORDER Appeal filed by the appellants/plaintiffs under Order 43 Rule 1 R/w. Sec.96 of CPC is hereby dismissed.
Consequently order passed on IA No.5, dated: 01.03.2024 by the learned I Addl. Civil Judge and JMFC, Chitradurga in OS No.495/2022 is hereby confirmed.
Office is hereby directed to send the copy of the Judgment to the trial Court."
10. It is trite law that even in an injunction suit, a counterclaim would become maintainable in the light of the judgment rendered by the Apex Court in the case of GURBACHAN SINGH V. BHAG SINGH AND OTHERS2, wherein the Apex Court has held as follows:
"2. The contention raised in the courts below was that in a suit for perpetual injunction, the respondents could not lay 2 AIR 1996 SUPREME COURT 1087
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NC: 2025:KHC:35520 WP No. 16699 of 2025 HC-KAR any counter-claim for possession. Order 8, Rule 6(A)(1) of the CPC, 1908 as amended in 1976 reads thus:
"A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court."
3. It is true that Rule 6-A(a) was introduced by the Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter-claim or set-off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceedings, right to the defendants to raise the plea of set- off in addition to a counter-claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter-claim or set-off had accrued to the defendant either before or after the filing of the suit. The limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time-limit for delivering the written statement has expired, whether such counter- claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying the counter-claim, pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter-claim beyond its pecuniary jurisdiction. Thus considered, we hold that in a suit for injunction, the counter- claim for possession also could be entertained, by operation of Order 8, Rule 6(A)(1) of the CPC.
4. It is sought to be contended that the counter-claim was not filed within the time given for laying the same. It would appear from the list of the dates given by the petitioner himself that the counter-claim was filed within two months from the date of the suit itself.
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5. Under these circumstances, the special leave petition is dismissed."
11. Therefore, the contention of the learned counsel appearing for the petitioners that in an injunction suit, counterclaim is not maintainable is contrary to law enunciated by the Apex Court.
12. What remains is the grant of an injunction.
Injunction is not granted against the plaintiffs but qua the counterclaim schedule property as is noticed hereinabove.
Therefore, there is no warrant of interference with both the orders passed by the Trial Court and that of the First Appellate Court.
13. The Petition lacking in merit, stands rejected.
Sd/-
(M.NAGAPRASANNA) JUDGE SJK List No.: 2 Sl No.: 2