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Karnataka High Court

Sri. Rama Rao @ Ramacharya vs Sri Krishna Rao S/O Vijayarao Kulkarni & ... on 31 January, 2013

Author: N.Kumar

Bench: N.Kumar

        IN THE HIGH COURT OF KARNATAKA,
           CIRCUIT BENCH AT GULBARGA

     DATED THIS THE 31ST DAY OF JANUARY 2013

                      BEFORE

         THE HON'BLE MR.JUSTICE N.KUMAR

       WRIT PETITON NO.87101/2012 (GM-CPC)

BETWEEN:

Sri Rama Rao @ Ramacharya,
Aged: 67 years,
S/o Hanumantharao,
R/o Chikalparvi Village,
Manvi Taluk 584123
Raichur District.                  ... PETITIONER

(By Sri: S.K.Purohit, Advocate)

AND

1.    Sri Krishna Rao
      Aged about 74 years,
      S/o Vijayarao Kulkarni.

2.    Sri Sripad,
      Aged about 24 years,
      S/o Vijayarao Kulkarni,

      Both resident of
      Chikalparvi Village,
      Manvi Taluk-584123,
      Raichur District.           ... RESPONDENTS

(By Sri Ameet Kumar Deshapande, Adv)
                                2


     This Writ Petition is filed under Article 226 and
 of the Constitution of India praying to pass an order
to quash by issue of certiorari the order dated
6.12.2012 passed by the Civil Judge (Jr.Dn) Manvi,
Raichur district in I.A.No.8 in O.S.No.196/2012 filed by
the plaintiff/respondents seeking correction of order
dated 23.11.2012 under section 152 of the Civil
Procedure, 1908 as per Annexure -A.

      This petition is coming on for Orders in B group,
this day, this Court made the following

                          ORDER

This Writ Petition is filed challenging the order on application filed under section 152 of Code of Civil Procedure, Order XXXIX Rule 1 read with section 151 of Code of Civil Procedure for discharge, viaration or cancellation of order and I.A.No. XII under order XXXIX Rule 1 restrain nominated poojari and his men from performing the poojas.

2. The trial court after hearing both the parties, by a detailed order dated 23rd November 2012 has passed an order. The operative portion of which reads as under;

I.A.No.I u/o 39 R.1 r/w 151 of CPC filed by the plaintiffs for ad interim order of injunction, IA III u/o 39 R.4 for vacating of injunction order and IA No.IV u/o 39 R 1 and 2 filed by the defendant for grant of temporary injunction are allowed in part and consequently both parties are order to maintain status quo in the suit property as on date till disposal of the suit. The present Archaka nominated by the Raghavednra Swamy Math Mantralaya is permitted to perform pooja till disposal of the suit. However, both parties are at liberty to participate in the Aradhana and other ritual pooja ceremonies in peaceful manner. No order as to costs."

3. It is thereafter an application filed I.A.No. VIII, IX and XII. The trial court has passed the following:

ORDER IA No.VIII u/s 152 of CPC filed by the plaintiffs for correction of interim order dated 23.11.2012, IA No. X u/o 39 R1 R/W 151 of 4 CPC for discharge, variation or cancellation of order and I.A.No.XII U/O 39 R.1 of CPC to restrain nominated Poojari/Archaka and his men or servants till disposal of the suit are allowed. Consequently, the order dated 23.11.2012 is altered by discharging operative order of permitting the present Archaka/Poojari of Raghavendra Swamy Mata to perform poojs in the temple of the suit property and he is hereby restrained from interfering the suit property. No Order as to costs.

4. As it is clear from the orders it cannot be construed as on order under section 151 of Code of Civil Procedure. There is no clerical or arithmetical mistakes in the judgements, decrees or orders or errors arising threin from any accidental slip or omission. Order XXXIX Rule 4 provides for discharge, variations or set aside the order passed under order XXXIX Rule 1, such application is maintainable only if a party has knowingly made false or misleading statements in relation to material brought and the injunction was 5 granted without giving notice to the opposite party, then the said order could be varied, discharged or set aside. If an order is passed after giving opportunity to the opposite party, the said order shall not be discharged, varied or set aside except where such discharge, variations or set aside has been necessitated by a change in the circumstances or only the Court to satisfy that the order is undue hardship to the parties. The present case do not fall under order XXXIX Rule 4. Virtually the trial court has set aside the earlier order and passed just opposite order which is not permissible in law. Therefore, the said order require to be set aside. Hence, I pass the following:

ORDER The Writ Petition is allowed. The impugned order is set aside. However, the liberty is reserved to the respondents to challenge the original order by way of an appeal. 6

Though the impugned order is order passed on 03 I.As., the petitioner in the Writ Petition filed an application for amendment, now they are seeking to challenge all 03 orders. The amendment is allowed only to the extent of challenge the 03 orders. All other allegations in the applications are expunged as it is wholly unnecessary for this proceedings. Accordingly, I.A.No.02/2013 is allowed.

I.A.No. 01/2013 does not survive for consideration, hence it is dismissed.

Sd/-

JUDGE *MK