Karnataka High Court
Sri K V Rajendra vs Sri K V Shivashankar on 27 October, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 3221 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 3221 OF 2020 (CPC)
BETWEEN:
SRI. K.V. RAJENDRA,
S/O LATE K.R. VENKUSA,
AGED ABOUT 67 YEARS,
NO.6/1, SHANKARA DEVARA
MATTADAGALLI, MANVARTHIPET,
BENGALURU - 560 053.
...APPELLANT
(BY SRI. KRISHNAMURTHY M.R, ADVOCATE)
AND:
1. SRI. K.V. SHIVASHANKAR,
S/O LATE K.R. VENKUSA,
AGED ABOUT 52 YEARS,
NO.11/1, SHANKARA DEVARA
MATTADAGALLI, MANAVARTHIPET,
BENGALURU - 560 053.
2. THE COMMISSIONER,
BRUHATH BENGALURU MAHANAGARA PALIKE,
HUDSON CIRCLE, BENGALURU - 560 009.
Digitally signed
by GURURAJ D 3. THE ASSISTANT EXECUTIVE ENGINEER,
Location: HIGH BRUHATH BENGALURU MAHANAGARA PALIKE,
COURT OF
KARNATAKA COTTON PET SUB DIVISION, MAGADI ROAD,
4TH CROSS, BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. D.N. RAMACHANDRAPPA, ADVOCATE FOR R1;
NOTICE TO R2 & R3 IS DISPENSED WITH)
THIS MFA FILED U/O 43 RULE 1(r) OF CPC AGAINST THE
ORDER DATED 24.02.2020 PASSED ON I.A.NOS.II AND IV IN
OS.NO.8285/2018 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU SCCH-32, DISMISSING THE
I.A.NO.II FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151
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MFA No. 3221 of 2020
OF CPC, AND ALLOWING THE I.A.NO.IV FILED UNDER ORDER 39
RULE 4 R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 24.02.2020 passed by XX Additional City Civil and Sessions Judge, Bengaluru (CCH-32) in O.S.no.8285/2015 on I.A.no.II filed under Order XXXIX Rule 1 and 2 of CPC and I.A.no.IV filed under Order XXXIX Rule 4 of CPC, this appeal is filed.
2. Appellant herein was plaintiff, while respondents herein were defendants respectively. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
3. In plaint, it was stated that I.A.no.II was filed by plaintiff for restraining defendant no.1 from carrying out any construction over suit schedule property. On said application, an ad-interim order of temporary injunction was granted. For vacating said order defendant no.1 filed I.A.no.IV.
4. It is submitted that during pendency of suit defendant no.1 has completed construction and therefore -3- MFA No. 3221 of 2020 application has been rendered infructuous. He however submits that while passing impugned order, trial Court has observed that plaintiff had not challenged building permission granted to defendant no.1. It is further submitted that plaintiff's case before trial Court is that defendant no.1 is not carrying out construction in terms of sanctioned plan and that he had no grievance against sanctioned plan, suit could be proceeded without challenging building licence. He further submits that though appeal may have become infructuous, but observation of trial Court may prejudice plaintiff in trial and seeks for direction that trial Court should not decide suit under said impression.
5. Learned counsel for respondents opposes submission and submits that in view of completion of construction, I.A.no.II has been rendered infructuous and clarification is not necessary as it is only prima facie in nature and same would not bind the Court while passing final judgment.
6. Heard learned counsel. Perused impugned order and record.
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7. Since admittedly, construction is completed, I.A.no.II would become infructuous. Consequently, appeal would not survive. However, it is clarified that observations of trial Court while passing impugned order would not bind it while passing final judgment.
With above observations, appeal is disposed of. Consequently, I.A.no.1/2020 would not survive for consideration. Both parties are directed to cooperate for early disposal of suit.
Sd/-
JUDGE GRD