Karnataka High Court
Shankargouda S/O Siddanagouda Patil vs M/S G.N. Kakhandaki on 1 September, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2023:KHC-K:6999
WP No. 201004 of 2021
C/W WP No. 201240 of 2023
®
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 201004 OF 2021 (GM-CPC)
C/W
WRIT PETITION NO. 201240 OF 2023 (GM-CPC)
IN W.P.NO. 201004/2021
BETWEEN:
SHANKARGOUDA
S/O SIDDANAGOUDA PATIL
AGED: 59 YEARS
OCC: AGRICULTURE AND BUSINESS
R/O. K.H.B. COLONY PLOT NO.147,
SOLAPUR ROAD, VIJAYAPUR-586103.
...PETITIONER
(BY SRI. DHARWADKAR SUBODH TIRUPATI, ADVOCATE)
Digitally signed AND:
by
NARAYANAPPA 1. M/S G.N. KAKHANDAKI
LAKSHMAMMA REGISTERED PARTNERSHIP FIRM
Location: HIGH BY ITS PARTNERS
COURT OF GURULINGAPPA
KARNATAKA
S/O NINGAPPA KAKHANDAKI
AGE. 72 YEARS OCC. BUSINESS
O.C. APMC YARD SY.NO. 1765
PLOT NO. 107 B, APMC YARD
INDI ROAD, VIJAYAPUR
2. GURULINGAPPA
S/O NINGAPPA KAKHANDAKI
AGE: 72 YEARS
OCC. BUSINESS
O.C. APMC YARD SY.NO. 1765, PLOT NO,. 107 B,
-2-
NC: 2023:KHC-K:6999
WP No. 201004 of 2021
C/W WP No. 201240 of 2023
APMC YARD, INDI ROAD, VIJAYAPURA,
AND ALSO R.O AKKAMAHADEVI MAIN ROAD,
NEAR ANAND HOSPITAL
VIJAYAPUR-586101.
3. BASAVARAJ
S/O MALLIKARJUN KAKHANDAKI
OCC. BUSINESS
O.C. APMC YARD SY.NO. 1765, PLOT NO,. 107 B,
APMC YARD, INDI ROAD, VIJAYAPURA
AND ALSO R.O AKKAMAHADEVI MAIN ROAD,
NEAR ANAND HOSPITAL
VIJAYAPURA-586101.
...RESPONDENTS
( BY SRI. DEEPAK V. BARAD., ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION
QUASHING ANNEXURE-A & B AND SETTING ASIDE THE IMPUGNED
JUDGMENT IN M.A.NO.39/2018, DATED 20.7.2020, PASSED BY THE
HON'BLE PRINCIPAL SENIOR CIVIL JUDGE, VIJAYAPURA & CJM
FURTHER, BE PLEASE TO SET-ASIDE THE IMPUGNED ORDER
ALLOWING I.A.NO.1, DATED 17.9.2018, PASSE BY THE HON'BLE II
ADDL. CIVIL JUDGE, VIJAYAPURA, BY DISMISSING I.A.NO.I IN
O.S.NO.759/2017 PENDING BEFORE II ADDL. CIVIL JUDGE,
VIJAYAPURA.
*****
IN W.P.NO. 201240/2023
BETWEEN:
1. M/S G.N. KAKHANDAKI
REGISTERED PARTNERSHIP FIRM
BY ITS PARTNERS
GURULINGAPPA
S/O NINGAPPA KAKHANDAKI
AGE. 72 YEARS OCC. BUSINESS
O/C. APMC YARD SY.NO. 1765
PLOT NO. 107 B, APMC YARD
INDI ROAD, VIJAYAPUR
2. GURULINGAPPA
S/O NINGAPPA KAKHANDAKI
AGE: 72 YEARS
-3-
NC: 2023:KHC-K:6999
WP No. 201004 of 2021
C/W WP No. 201240 of 2023
OCC. BUSINESS
O/C. APMC YARD SY.NO. 1765,
PLOT NO,. 107 B,
APMC YARD, INDI ROAD,
VIJAYAPURA-586101
AND ALSO R/O AKKAMAHADEVI MAIN ROAD,
NEAR ANAND HOSPITAL
VIJAYAPUR-586101.
3. BASAVARAJ
S/O MALLIKARJUN KAKHANDAKI
AGE. 35 YEARS
OCC. BUSINESS
O.C. APMC YARD SY.NO. 1765,
PLOT NO,. 107 B,
APMC YARD, INDI ROAD,
VIJAYAPURA -586101
AND ALSO R/O AKKAMAHADEVI MAIN ROAD,
NEAR ANAND HOSPITAL
VIJAYAPURA-586101.
...PETITIONERS
(BY SRI. DEEPAK V. BARAD., ADVOCATE)
AND:
SHANKARGOUDA
S/O SIDDANAGOUDA PATIL
AGED: 63 YEARS
OCC: AGRICULTURE AND BUSINESS
R/O. K.H.B. COLONY PLOT NO.147,
SOLAPUR ROAD, VIJAYAPUR-586103.
...RESPONDENT
(BY SRI. DHARWADKAR SUBODH TIRUPATI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI THEREBY QUASHING THE IMPUGNED
ORDER DATED 13.03.2023 PASSED BY THE IIIRD ADDL., SENIOR
CIVIL JUDGE & J.M.F.C., AT VIJAYAPURA IN O.S.NO.29/2018 AS AT
ANNEXURE-G TO THIS WRIT PETITION, TO THE EXTENT OF
REJECTION OF PROPOSED AMENDMENT AT PARA 9(C) OF THE
-4-
NC: 2023:KHC-K:6999
WP No. 201004 of 2021
C/W WP No. 201240 of 2023
WRITTEN STATEMENT AND ALLOW THE I.A.NO.XVIII IN IT'S
ENTIRETY, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 21.08.2023, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. In WP No.201004/2021, the petitioner claims to be the landowner is before this Court seeking for the following reliefs:
"Wherefore, the petitioner respectfully pray that the Hon'ble Court be please to allow the Writ Petition quashing Annexure-A & B and setting aside the impugned judgment in M.A.No.39/2018, dated 20.7.2020, passed by the Hon'ble Principal Senior Civil Judge, Vijayapura & CJM further, be please to set-aside the impugned order allowing I.A.No.1, dated 17.9.2018, passe by the Hon'ble II Addl. Civil Judge, Vijayapura, by dismissing I.A.No.I in O.S.No.759/2017 pending before II Addl. Civil Judge, Vijayapura".
2. In WP 201240/2022, the petitioner initially claimed to be tenant but subsequently claiming to be part owners are before this Court seeking for the following reliefs:
i. Issue a writ in the nature of certiorari thereby quashing the impugned order dated 13.03.2023 passed by the IIIrd Addl., Senior Civil Judge & J.M.F.C., at Vijayapura in O.S.No.29/2018 as at Annexure-G to this writ petition, to the extent of rejection of proposed amendment at para 9(C) of -5- NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 the written statement and allow the I.A.No.XVIII in it's entirety, in the interest of justice and equity. ii. Issue any other order, writ of direction as this Hon'ble Court deems fit in view of the facts and circumstances of the case stated above in the interest of justice and equity.
3. The facts leading upto the above petitions are as under:
3.1. The tenants had filed a suit in OS No.759/2017 seeking for injunction restraining the landowners from dispossessing the tenants. In the said suit an interlocutory application in IA 1/2001 was filed under Order 39 Rule 1 and 2, where an order of injunction was granted by the trial Court restraining the landowner from interfering with the peaceful possession of the tenants.
3.2. Subsequent thereto, the landowner filed a suit in OS No.29/2018 on 9.2.2018 seeking for a decree directing the tenant to quit and deliver the vacant possession of the suit schedule property as also for arrears of accumulated -6- NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 rentals amounting to Rs.50,10,000/- with future damages at the rate of Rs.10 lahks per year till the handover of the possession as also for certain injunctions.
3.3. Thereafter another suit came to be filed by the tenant in OS No.242/2018 seeking for partition and separate possession of their alleged half share in the suit schedule property.
3.4. In the meanwhile, a Misc. Appeal was filed by the landowner challenging the orders passed in IA No.1 in OS No.759/2017 and the First Appellate Court vide its order dated 20.7.2020 partly allowed the Misc. Appeal and modified the order of trial Court on IA No.1 in OS No.759/2017 by restraining the landowner from dispossessing the tenant till taking possession of the suit schedule property with due process of law in OS No.29/2018. It is aggrieved by the same that the landowner had filed WP -7- NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 No.201004/2021 seeking for the aforesaid reliefs.
3.5. In the meanwhile, the tenant having filed an application in Order 6 Rule 17 in IA No.18 in OS No.29/2018 seeking to bring on record certain averments contenting that the suit is pre-mature on account of due notice not having been issued in terms of Section 106 read with Section 111 of the Transfer of Property Act.
The said application having been partly allowed vide order dated 30.3.2023, the tenant is before this Court in WP No. 201240/2023 seeking for the aforesaid reliefs. 3.6. By way of that order, the amendment sought for as regards no cause of action being allowed and rest of the averments sought to be brought on record by way of amendment came to be dismissed.
-8-
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023
4. Sri. Dharwadkar Subodh Tirupati., learned counsel for the landowners would submit that; 4.1. The tenant has abused the process of the Court in as much as the suit in OS No.759/2017 filed by the tenant was for protection of dispossession of the entire property, on the ground that he was a tenant.
4.2. Whereas, in OS No.242/2018 post the suit filed by landowners for eviction, the tenant is now seeking for partition of the property on the ground that the tenant owns half share in the property.
4.3. These aspects ought to have been taken into consideration by the First Appellate Court while passing the impugned order in MA No.39/2018 in as much as the tenant not having come to Court with clean hands having taken dishonest contentions would not be entitled for any -9- NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 equitable reliefs as such the injunction which had been granted in OS No.759/2017 ought to have been vacated by the First Appellate Court in Misc.Appeal No.39/2018.
4.4. In this regard he relies upon the decision of the Hon'ble Apex Court in East India Hotels Ltd. v. Syndicate Bank1 more particularly para 45 thereof, which is reproduced hereunder for easy reference:
45. In Amirudin case [ILR (1891) 15 Bom 685] the facts were that Amirudin, plaintiff filed the suit to recover a room from the defendant when he was dispossessed on June 3, 1890. The defendant pleaded that he had been in possession and that the plaintiff trespassed into it by excluding him from the room and put a padlock on the door. He had removed the padlock and resumed possession. The plea, therefore, was that the plaintiff was a rank trespasser and the defendant resumed possession in his assertion as an owner, and as such, the plaintiff was not entitled to relief under Section 9 of the old Act. The trial court accepted that plea and held that the plaintiff was a trespasser. Under those circumstances, the court held that he was not entitled to possession. That ratio has no application to the facts. In Chandu Lal case [AIR 1978 Del 174 : ILR (1978) 1 Del 292 :
1978 Raj LR 278] no doubt the ratio therein 1 1992 (2) SCC 29 (supp)
- 10 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 is in favour of the appellant but it is difficult to approve of it. The licensee in settled possession is entitled to the remedy under Section 6. But each case has to be considered in the light of its own facts. 4.5. He relies upon the decision in Rajesh D. Darbar vs. Narasingaro Krishnaji Kulkarni & Ors.2 dated 6.8.2003, more particularly unnumbered para of the judgment, which are reproduced hereunder for easy reference:
178) and a fresh suit by him would be so barred by limitation."
These aspects were highlighted by this Court in Rameshwar and Ors. vs. Jot Ram and Ors. (AIR 1976 SC 49). The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focussed. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a 2 Civil Appeal No.5568-07/2003
- 11 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and Ors. vs. Tarapada Dey and Ors. (1987 (4) SCC 4.6. By relying on the above he submits that the First Appellate Court ought to have taken into consideration the subsequent events in as much the pleadings filed in OS No.242/2018 and taking into account the dishonest intention on part of the tenant ought to have vacated the interim order of injunction.
4.7. He refers to and relies upon the decision of the Hon'ble Apex Court in Shaikh Ali Hossain & Ors vs. S.K.Showkat Ali and Another3 dated 24.7.2014, more particularly unnumbered last two paras of the judgment, which are reproduced hereunder for easy reference;
It is evident from the findings of the Trial Court, the first Appellate Court and a very detailed and painstaking consideration of 3 Civil Appeal No.3650/2008
- 12 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 various aspects to which Raveendran, J. has adverted in the order passed by His Lordship, that the plaintiffs-respondents herein have a claim to only 6.5 decimals of land comprising premises No.108, Dr. G.S. Basu Road, Calcutta and described in Schedule 5 'B' to the plaint. The plaintiffs claim, in relation to a similar parcel of land out of what remains and is marked as schedule 'A' property comprising premises No.108A, Dr. G.S. Basu Road, Calcutta, is, in our opinion, un- supported by any documentary or other evidence to justify any injunction against the defendants-appellants restraining use of the said property. We, therefore, concur with the view taken by Raveendran, J. and allow the appeal filed by the appellants herein and set aside the order passed by the High Court. We make it clear that the observations made by this Court in this order or those made in the two dissenting judgments delivered earlier or any observations made by the Trial Court and the first Appellate Court on the subject shall not prejudice the parties at the final hearing. These observations shall be deemed to have been made only for the limited purpose of determining whether a case for grant of temporary injunction; has or has not been made out by the plaintiffs. Since the matter has been languishing before the Trial Court for a long time, we direct the Trial Court to expedite the hearing and disposal of the same as early as possible. Needless to say that the appellants shall not interfere with the possession or title of the plaintiff- respondents in regard to land measuring 6.5 decimals situated and 6 comprising premises No.108 Dr. G.S. Basu Road, Calcutta, as directed by the Courts below and as conceded even before us by the learned counsel for the defendants, who claim no right , title or interest in the said parcel of land.
- 13 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 4.8. The tenant has filed amendment application on three earlier occasions only to protract the proceedings and these applications have been filed only after the matter is posted for evidence and the landowner having led his evidence matter was posted for cross- examination. Thus, the amendment application being post-trial amendment the requirements of proviso to Rule 17 Order 6 has not been complied with by the tenant and as such on this ground also the application is required to be dismissed.
4.9. The trial Court has rightly rejected the amendment sought for by the tenant, who is a defendant in OS No.29/2018. Apart therefrom, he submits that any contention which has been taken in respect of notice is a point of law which requires no pleading to that effect and a litigant cannot be allowed to plead law in his
- 14 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 written statement more so by way of amendment.
4.10. On these grounds he submits that WP No.201004/2021 is required to be allowed and WP No.201240/2023 is required to be dismissed.
5. Sri. Deepak V. Barad., learned counsel appearing for the tenant would submit that;
5.1. The suit in OS No.759/2017 was filed due to exigency in urgency the aspect relating to the tenant being the co-owner of the property was not mentioned and it is only thereafter, on a suit for eviction being filed in OS No.29/2018. A counterclaim having been filed, and the tenant being directed to file a fresh suit, a fresh suit in OS No.242/2018 came to be filed and as such at the first available opportunity, the tenant has taken up the contention of co-
- 15 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 ownership of the property in the counterclaim filed in OS No.29/2018. Thus, he submits that the tenant has acted in a proper manner. 5.2. The possession being vested with tenant, he submits that the possession is required to be protected and preserved and if the order of injunction is vacated, there is a likelihood of the landowner dispossessing the tenant as such, he submits that the WP No.201004/2021 is required to be dismissed.
5.3. In so far as WP No.201240/2023 is concerned, he submits that the aspect of whether the notice having been issued properly or not under Section 106 Transfer of Property Act is required to be determined by the trial Court and the period of notice being circumscribed by Section 111 of Transfer of Property Act on the basis of whether the tenancy is monthly, half-yearly or yearly. The period of notice being prescribed
- 16 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 the same is what is sought to be bought on record by way of an amendment and the trial Court ought to have allowed the said application. On these grounds he submits that WP No.201240/2023 is required to be allowed.
6. The matter having been reserved for judgment and listed for pronouncement on 04.08.2023, Sri.Deepak V.Barad, learned counsel for the tenants made a submission that insofar as W.P.No.200015/2022, which had been disposed holding it to be infructuous, he would be filing a recall/review application. It is in that background that pronouncement of the judgment was not made on 04.08.2023 and the matter was adjourned to 21.08.2023.
7. On 21.08.2023, Sri.Deepak V.Barad, learned counsel submitted that he would not be filing a recall/review application but intended to rely upon two judgments in this matter.
- 17 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 7.1. He relies upon the decision of this Court in the case of Iranagouda Basanagouda Biradar and another vs. Basanagouda Veeranagouda Biradar4 more particularly, Paras 2 and 3 thereof, which are reproduced hereunder for easy reference:-
2. The short ground on which the appeal was dismissed was that the defendants did not prefer a petition to vacate the interim injunction before the trial Court itself as required under Order 39 Rule 4 of C.P.C.
Order 39 Rule 4 of C.P.C. states that any order of injunction may be discharged or varied or set aside by the Court on an application made thereto by any party dissatisfied with the order, and the appeal was to be preferred under Order 43 Rule 1(r) of C.P.C. This Court has taken the view that unless there is an application made by the aggrieved party to vacate the order or modify the order of temporary injunction granted by the trial Court, no appeal shall lie.
3. The learned Counsel for the defendant relied on a Judgment reported in AIR 1982 Kar 105 [Parijatha v. Kamalaksha Nayaka] , wherein this Court has held that no appeal lies against an exparte order of injunction under Order 39 Rules 1 and 2 of CPC and the remedy for the aggrieved person even if he is a stranger is to move the trial Court of the first instance. A similar view has been taken in the case of Vokkaligara Sangha v. Pradeep [ILR 1994 Kar 1653.] , where this Court has held that order in the nature of mandatory injunction will not lose its character though 4 1996 (1) Kar.L.J. 318
- 18 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 the order is passed by invoking Order 39 Rules 1 and 2 of C.P.C. and therefore the only remedy to the appellants is to approach the jurisdictional Court and file an application for setting aside the order under Order 39 Rule 4. Without invoking such a procedure, if any appeal is filed, it is not maintainable. The learned Counsel for the defendant also relied on case of Gopal Ahuja and Another v. Sanman Distributors (P) Ltd. Bangalore and Others.
7.2. By relying on the above, he submits that whenever an order of injunction is passed under Order XXXIX Rule 1 and 2, the only remedy which is available for the defendant is to file an application under Order XXXIX Rule 4 and the defendant could not file a Miscellaneous Appeal in relation thereto.
7.3. He also relies upon another decision of Co-
ordinate Bench of this Court in the case of Kaveramma and another vs. Pillamma5 more particularly Para 3 thereof, which is reproduced hereunder for easy reference:-
3. I have perused the citation and it is clear from the very reading of the judgment that 5 2005 (5) Kar.L.J. 81
- 19 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 such exercise of power by the Appellate Court in receiving additional evidence at the appellate stage, even while considering an appeal challenging an interim order of temporary injunction could be exercised. In the given facts and circumstances, it is for this Court to decide whether such an exercise of power is warranted. The present case before me it is to be noticed that the defendants have not produced any documents before the Trial Court. The challenge to the impugned order is to consider whether the Trial Court has committed any error in exercising its jurisdiction or it has failed to exercise jurisdiction vested in it or acted arbitrarily or capriciously in exercising its jurisdiction. It cannot be gain said that the impugned order reflects any such infirmity. It is to be farther noticed that in the event the appellants did not have the documents, which they seek to rely upon, at the time of hearing of the application for temporary injunction, they would have been well within their right to file an application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 and to seek indulgence of the Court to entertain such additional documents that they may want to rely upon and to reconsider the order passed in the application filed under order XXXIX Rules 1 and 2 of CPC. The appellants have not chosen to exercise this right available to them.
7.4. Relying on the above, he submits that the remedy which had been available to the landlord was only filing an application under Order XXXIX Rule 4 and Miscellaneous Appeal could not have been filed. On these grounds,
- 20 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 he submits that W.P.No.201004/2021 would have to be dismissed.
8. Heard Sri.Dharwadhkar Subodh Tirupati., learned counsel appearing for the landlord and Sri.Deepak V. Barad., learned counsel appearing for Tenant. Perused papers.
9. The points that would arise for determination are:
1. Whether a plaintiff taking a different stand in a subsequent suit would be entitled for an order of injunction in the first suit. Consequently, whether the impugned order challenged in WP No.201004/2021 is required to be interfered with?
2. Whether the impugned order passed in WP No.201240/2022 is required to be interfered with insofar as the rejection of a portion of an amendment sought for by the tenant?
3. Whether once an order is passed under Order XXXIX Rule 1 and 2, the only remedy available to the defendant is to file an application under Order XXXIX 39 Rule 4 or could a Miscellaneous appeal be filed?
- 21 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023
4. What order?
10. I answer the above points as under:
11. Answer to point No.1: Whether a plaintiff taking a different stand in a subsequent suit would be entitled for an order of injunction in the first suit. Consequently, whether the impugned order challenged in WP No.201004/2021 is required to be interfered with?
11.1. The tenant having filed OS No.759/2017, the trial Court had granted an order of injunction. On appeal being filed in MA No.39/2018, the First Appellate Court restricted the order of injunction till the landlord obtains possession in the suit filed by the landlord in OS No.242/2018. It is this order which is under challenge by the landlord.
11.2. When the tenant had approached the trial Court in OS No.759/2017, it is categorically stated that the plaintiff was the tenant and defendant-landlord was trying to dispossess the
- 22 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 tenant. It is in that background that the trial Court granted an order of injunction. 11.3. When the said suit was pending the land owner filed OS No.29/2018 seeking for a direction to the tenant to quit and deliver vacant possession of the suit schedule property as also to make payment of accumulated rentals and future damages.
11.4. It is thereafter that the tenant filed a suit in OS No.242/2018 seeking for partition and separate possession alleging that the tenant had contributed half the amount to purchase the property in the 1960s to the father of the landlord and as such, the tenant has half share in the property.
11.5. The above would indicate that initially the tenant in OS No.759/2017 had claimed as the tenant of the entire property. However, after
- 23 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 the suit for eviction was filed by landowner, the tenant filed another suit in OS No.242/2018 seeking for partition of the property. Thus, the stand taken in the OS No.759/2017 and that taken in OS No.242/2018 are diametrically opposite to each other, in as much as now the tenant is claiming to be owner of half of the property. Such a stand, in my considered opinion, is an abuse of process of Court. No party can be permitted to take up such diametrically opposite contention and waste valuable time of the Court. The party who comes to Court must come with clean hands and must have done equity to claim any equitable reliefs, an order of injunction being equitable one.
11.6. A tenant now claiming to be owner of the property makes such tenant disentitled from any equitable relief. The tenant having taken up diametrically opposite contentions with an
- 24 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 intension to protract the proceedings as also continue his possession, in my considered opinion, is not entitled to any equitable consideration.
11.7. The First Appellate Court by considering the suit filed by the landowner had modified the order of injunction making it subject to the landowner to obtain possession in OS No.29/2018, in my considered opinion, the First Appellate Court ought to have by taking into account the opposite and contradictory claim made by the tenant in OS No.242/2018 allowed the appeal in its entirety by setting aside the order of injunction.
11.8. These aspects have not even been considered by the First Appellate Court to determine whether the person who has sought for an equitable relief has approached the Court with clean hands, has done equity and he is
- 25 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 therefore entitled to an order of injunction or not. If these facts had been taken into account, I am of the considered opinion that the First Appellate Court would have allowed the appeal in its entirety.
11.9. It is lastly urged that if the interim order is vacated there is a possibility of the landlord interfering with the possession of the tenant, that would be no reason for this court to hold its hands, in as much as if credence is given to such an argument the contradictory stands adopted by the tenant would be given a complete go by and the abuse of the process of the court resorted to by the tenant would be condoned. In so far as an order of injunction is concerned the conduct of the party seeking such an order of injunction would go a long way in determining whether such party is entitled to protection at the hands of the courts. A party
- 26 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 whose conduct has been improper and who has not come to court with clean hands cannot despite the same seek for protection at the hands of the court.
11.10. Hence, I answer Point No.1 by holding that a plaintiff taking a different stand in a subsequent suit would not be entitled for an order of injunction in the first suit, the tenant /plaintiff having done so in the present matter the impugned order challenged in WP No.201004/2021 is required to be interfered with.
12. Answer to point No.2: Whether the impugned order passed in WP No.201240/2022 is required to be interfered with insofar as the rejection of portion of an amendment sought for by the tenant?
12.1. The factual averments sought for by amendment have been allowed by the trial Court. However, the legal arguments sought to be brought on record insofar as the application
- 27 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 under Section 111 of the Transfer of Property Act has been rejected. This in my considered opinion is a proper order to have been passed by the trial Court in as much as there cannot be pleading of law but only pleading of facts. Issues of law would have to be argued in a Court and not required to be pleaded. 12.2. Furthermore, the application which had been filed is a post-trial amendment application, in as much as the evidence of the plaintiff had commenced and matter was posted for cross- examination. It was for the defendants- applicant to satisfy the requirements of the proviso to Rule 17 of Order VI and establish due diligence which has not been done, in absence thereof, even the portion of the application which has been allowed could not have been allowed since. However, the same is not challenged by the landlord, hence there is
- 28 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 no need for this Court to interfere with that order.
12.3. Hence, I answer point No.2 by holding that the impugned order passed in WP No.201240/2022 is proper and correct and does not require to be interfered with insofar as the rejection of portion of an amendment sought for by the tenant for pleading the effect of law.
13. Answer to Point No.3: Whether once an order is passed under Order XXXIX Rule 1 and 2, the only remedy available to the defendant is to file an application under Order XXXIX Rule 4 or could a Miscellaneous Appeal be filed? 13.1. There are two stages in which orders could be passed under Order XXXIX Rule 1 and 2. The first is at exparte stage and the second is after arguments are heard of both the sides. 13.2. Whenever an exparte order of injunction has been passed, the defendant on appearance could either file an objection to the application
- 29 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 under Order XXXIX Rule 1 and 2 or could file an application under Order XXXIX Rule 4 for vacating the interim order or file both objections and application under Order XXXIX Rule 4. Depending upon the choice of the defendant, necessary orders would have to be passed by the Court seized of the matter. 13.3. That is to say, if only objections are filed to an application under Order XXXIX Rule 1 and 2, the said application could be considered and orders passed. If application were to be filed under Order XXXIX Rule 4, the said application would have to be considered and orders passed on the application under Order XXXIX Rule 4. If both objections to Order XXXIX Rule 1 and 2 as also application under Order XXXIX Rule 4 were to be filed, the Court would have to pass orders on both the applications.
- 30 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 13.4. The question that arises is if objections to Order XXXIX Rule 1 and 2 applications were to be filed, the matter argued and the injunction order confirmed, could an application under Order XXXIX Rule 4 be filed thereafter. I am of the considered opinion that it is only when an exparte order of injunction is passed that an application under Order XXXIX Rule 4 can be filed. If an order has been passed on merits after hearing both the sides, then the question of filing an application under Order XXXIX Rule 4 does not arise as a matter of course but can only be filed in changed circumstances by the applicant establishing such changed circumstances seeking for modification of an order passed on an application under Order XXXIX Rule 1 and 2. Thus, unless there is a change in circumstances, an application under Order XXXIX Rule 4 cannot be filed after an
- 31 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 order on merits has been passed on an application under Order XXXIX Rule 1 and 2. 13.5. The judgment relied upon by Sri.Deepak V.Barad, learned counsel in Iranagouda's case was one where an application had been filed for temporary injunction. Since the defendant did not file their objections, a temporary injunction was granted by the Munisiff, which resulted in filing of a Miscellaneous Appeal. It is in that background that this Court came to a conclusion that an application under Order XXXIX Rule 4 ought to have been filed before filing a Miscellaneous Appeal. The said order of injunction was not passed after hearing the parties but was passed on the ground that the defendant did not file his objections. Thus, the order not being on merits, this Court held that instead of filing an appeal, an application under Order XXXIX Rule 4 ought to have been filed.
- 32 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 13.6. In Kaveramma's case, when an order of status-quo had been passed, an appeal having been filed, certain new documents were sought to be produced to indicate that the identity of the property itself was in dispute and as such, the order of status-quo is required to be vacated. It is in that background that this Court held that an application ought to have been filed under Order XXXIX Rule 4 instead of an appeal. That was a situation where certain new documents were sought to be produced which would indicate changed circumstances. Thus, it is on account of changed circumstances and new evidence that the interim order was sought to be varied or set aside, which could have been done by filing an application under Order XXXIX Rule 4.
13.7. In the present matter, neither of those two situations arises inasmuch as the orders on the application under Order XXXIX Rule 1 and 2 in
- 33 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 O.S.No.759/2017 was passed after hearing both the parties on I.A.No.1 which was filed under Order XXXIX Rule 1 and 2. Thus, the order which was challenged in Misc.Appeal No.39/2018 was an order passed on merits on an application under Order XXXIX Rule 1 and 2 and not an exparte order and as such, I am of the considered opinion that both the decisions relied upon by Sri.Deepak V.Barad, counsel would not be applicable to the present case and that the appeal filed by the landlord was proper and maintainable.
13.8. I answer Point No.3 by holding that in all cases, where an order is passed under Order XXXIX Rule 1 and 2, application under Order XXXIX Rule 4 is not the remedy. It is only if there is an exparte order of injunction passed and/or if there are changed circumstances that an application under Order XXXIX Rule 4 could be filed for setting aside, varying or modifying the order of injunction. If an order on an application under Order XXXIX Rule 1 and 2 has
- 34 -
NC: 2023:KHC-K:6999 WP No. 201004 of 2021 C/W WP No. 201240 of 2023 been passed on merits after hearing both the parties, then an application under Order XXXIX Rule 4 cannot be filed before the same Court but a Miscellaneous Appeal would have to be filed.
14. Answer to Point No.4: What order?
14.1. WP No.201004/2021 is allowed the impugned judgment in M.A.No.39/2018, dated 20.7.2020, passed by the Principal Senior Civil Judge, Vijayapura & CJM is quashed and the order allowing I.A.No.1, dated 17.9.2018, passed by the II Addl. Civil Judge, Vijayapura in O.S.No.759/2017 is set aside, IA No.1 is dismissed.
14.2. WP No.201240/2023 stands dismissed.
Sd/-
JUDGE SR/PRS List No.: 19 Sl No.: 1