Karnataka High Court
C Muniyappa vs Smt B Revathi on 6 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL No. 3761/2017(CPC)
BETWEEN:
C. MUNIYAPPA,
S/O LATE CHIKKAPPAIAH,
AGED ABOUT 53 YEARS,
'KANAKA', VINAYAKA STREET,
4TH CROSS, SHANTHI LAYOUT,
BENGALURU-560 016.
... APPELLANT
(BY SRI GANGADHARAPPA A. V., ADVOCATE)
AND:
SMT. B. REVATHI,
W/O BABOO BHARATH,
AGED ABOUT 63 YEARS
RESIDING AT NO.54/4
DHOOPANAHALLI, HAL 2ND STAGE,
BENGALURU-560 008.
... RESPONDENT
(BY SRI NAGABHUSHAN, ADVOCATE FOR
SRI K. S. NARAYANA SWAMY, ADVOCATE FOR C/R)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 04.02.2017
PASSED ON I.A.NO.1 IN O.S.NO. 6694/2016 ON THE FILE OF
THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY (CCH-66), ALLOWING I.A.NO.1 FILED UNDER
ORDER XXXIX RULE 1 AND 2 OF CPC.
2
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The defendant filed the present appeal against the order dated 04.02.2017 allowing I.A.No.1 filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure in O.S.No.6694/2016 on the file of the LXV Addl. City Civil and Sessions Judge, Bengaluru.
2. The respondent/plaintiff filed O.S.No.6694/2016 for permanent injunction against the defendant contending that she is the absolute owner in possession and enjoyment of the house property bearing site No.47, K.R.Puram CMC katha No.1996 situated at Kowdenahalli village, K.R.Puram Hobli, Bengaluru East Taluk. He further contended that the defendant knowing fully well that he has no manner of right, title and interest in the suit schedule property, tried to interfere with the possession of the same and therefore 3 filed the suit. The defendant filed written statement as well as counter claim, denied the entire plaint averments and contended that he is the owner of large part of the suit schedule property bearing site No.47 measuring East to West 40 feet and North to South 40 feet includes suit schedule property, therefore he is in possession etc., sought for dismissal of the suit.
3. Plaintiff filed I.A.No.1 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure reiterating the plaint averments. The same was resisted by the defendant by filing objections. The defendant while filing written statement, on 21.10.2016, also filed an application under Order XXXIX Rule 1 r/w Section 151 of Code of Civil Procedure to restrain the plaintiff from interfering with the counter claim property till disposal of the counter claim reiterating the averments made in the written statement/counter claim. The said application was resisted by the plaintiff by filing objection. The 4 Trial Court proceeded to consider only I.A.No.1 filed by the plaintiff and granted injunction by the impugned order dated 04.02.2017. Hence the present appeal is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri A.V.Gangadharappa, learned counsel for the appellant/defendant contended that when the plaintiff filed suit for permanent injunction, same was denied by the defendant by filing counter claim in respect of large extent of property including suit schedule property and also filed application for temporary injunction. The Trial Court, without considering the application for temporary injunction filed by the appellant/defendant along with the counter claim, has proceeded to consider only the application filed by the plaintiff which is immpermissible and liable to be set-aside. Learned counsel further contended that as soon as counter 5 claim is filed, it is nothing but regular suit. The application filed by the defendant will be stepping into shoes of the plaintiff. The Trial Court ought to have considered both the applications filed by plaintiff and defendant. It cannot proceed on the application of the plaintiff ignoring the application filed by the defendant which is on record. On that ground alone, the impugned order is liable to be set-aside. Learned counsel also contended that, in all fairness the Trial Court ought to have considered both the applications together. Since the same has not been done. Therefore, he sought to set-aside the impugned order.
6. Per contra, Sri Nagabhushan, for Sri K.S. Narayana Swamy, learned counsel for the caveator/ respondent-plaintiff sought to justify the impugned order and contended that the application filed by the defendant for temporary injunction under Order XXXIX Rule 1(b) and (c) of Code of Civil Procedure is only 6 academic and cannot be considered and the Trial Court has rightly considered the plaintiffs application which is in accordance with law, in view of the dictum of this Court, in the case of Smt.Shakunthalamma and others vs. Smt. Kanthamma and others reported in ILR 2014 KAR 6025. Therefore sought to dismiss the present appeal.
7. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration is:
"Whether the Trial Court is justified in granting injunction in favour of the plaintiff while considering I.A.No.1 for temporary injunction without considering the application filed by the defendant along with counter claim for temporary injunction, in the facts and circumstances of the present case?"
8. It is an undisputed fact that the plaintiff filed suit for permanent injunction claiming that she is the owner of site No.47 measuring East to West 40 feet and North to South 40 feet morefully described in the plaint. The 7 defendant filed written statement, denied the averments made in the plaint and also filed counter claim contending that he is the owner of the counter claim property measuring 29.14 guntas morefully described in the counter claim. According to the defendant, the suit schedule property is part and parcel of the counter claim property.
9. The Trial Court while considering the application for temporary injunction, in all fairness, should have considered both the applications filed by the plaintiff and defendant. There is no quarrel with the dictum of this court in the case of Shakunthalamma's case (supra), the Division Bench of this Court, while considering the provisions of Order XXXIX Rule 1 of Code of Civil Procedure has held that the defendant can take recourse to make an application under Order XXXIX Rule 1(a) of Code of Civil Procedure and he cannot invoke clause (b) and (c) of Rule 1 Order XXXIX, 8 but, that should be under Rule 2. Whether the application is filed under Order XXXIX Rule 1(b) and (c) or Rule 1(a) has to be decided with reference to the pleadings and objections filed by both the parties in the application. The same has not been in the present case. In view of the same, the impugned order passed by the Trial Court allowing I.A.No.1 is contrary to the material on record. On that short ground alone, the impugned order is liable to be set-aside.
10. In view of the peculiar facts and circumstances of the case, it is suffice to direct the Trial Court to consider the applications filed by plaintiff and defendant under Order XXXIX Rule 1 and 2 of Code of Civil Procedure and pass orders in accordance with law. Therefore, the point raised for consideration in the present appeal has to be answered in the negative holding that the Trial Court is not justified in granting injunction in favour of the plaintiff, without considering the application for 9 temporary injunction filed by the defendant along with the written statement-counter claim.
11. For the reasons stated above, the appeal is allowed. The impugned order dated 04.02.2017 in O.S.No.6694/2016 allowing I.A.No.1 on the file of the LXV Addl. City Civil and Sessions Judge, Bengaluru, is set-aside. The matter is remanded to the Trial Court to reconsider both the applications filed by the plaintiff and defendant for temporary injunction. All the contentions of both the parties are kept open. The Trial Court shall consider both the applications and decide the same within a period of three months from the date of receipt of copy of this order, subject to cooperation by both the parties. In the meanwhile, parties are directed to maintain status quo as on today, till the applications are decided by the Trial Court.
10
In view of disposal of the appeal itself, I.A.Nos.1 and 2/2017 filed in the present appeal are dismissed as they do not survive for consideration.
Sd/-
JUDGE Kcm