Karnataka High Court
Sangappa S/O Mallappa Nandeshwar vs Smt. Chandrawwa W/O. Bhimappa ... on 26 November, 2024
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NC: 2024:KHC-D:17309
MFA No. 100541 of 2021
C/W MFA No. 100542 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100541 OF 2021 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100542 OF 2021
IN M.F.A.NO.100541/2021:
BETWEEN:
SANGAPPA S/O. MALLAPPA NANDESHWAR,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: REDDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
...APPELLANT
(BY SMT. SURABHI KULKARNI, ADVOCATE)
AND:
1. SMT. CHANDRAWWA
W/O. BHIMAPPA NANDESHWAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: REDDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
Digitally signed
by SAROJA
2. GIRISH S/O. BHIMAPPA NANDESHWAR,
HANGARAKI AGE: 40 YEARS, OCC: AGRICULTURE,
Location: High
Court of
Karnataka
R/O: REDDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
3. SMT. MAHADEVI W/O. BASAPPA AWATI,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: SATTI - 591 240, TQ: ATHANI,
DIST: BELAGAVI.
4. SMT. IJAVVA W/O. RAMAPPA AWATI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MADABHAVI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
5. MURIGEPPA S/O. ANNAPPA GALAGALI,
AGE: 50 YEARS, OCC: AGRICULTURE,
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NC: 2024:KHC-D:17309
MFA No. 100541 of 2021
C/W MFA No. 100542 of 2021
R/O: RADDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
6. THE MANAGING DIRECTOR,
UGAR SUGARS WORKS LTD.,
UGAR KHURD - 591 316,
TQ: ATHANI, DIST: BELAGAVI.
7. THE MANAGING DIRECTOR,
ATHANI FARMERS SUGARS FACTORY LTD.,
KEMPAWAD, NAVLIHAL - 591 234,
TQ: ATHANI, DIST: BELAGAVI.
8. SMT. GOURAVVA W/O. SHIVAPPA AWATI,
AGE: 70 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: SATTI - 591 240, TQ: ATHANI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI RAMACHANDRA A.MALI, ADVOCATE FOR R5;
SRI SANJAY S. KATAGERI, ADVOCATE FOR R7;
NOTICE TO R1 TO R3, R6, R8 ARE SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF THE
CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE ORDER
DATED 31.5.2021 ON I.A.NO.I IN O.S. NO.57/2016 ON THE FILE OF
PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
IN M.F.A.NO.100542/2021:
BETWEEN:
SANGAPPA S/O. MALLAPPA NANDESHWAR,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: REDDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
...APPELLANT
(BY SMT. SURABHI KULKARNI, ADVOCATE)
AND:
1. SMT. CHANDRAWWA
W/O. BHIMAPPA NANDESHWAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: REDDERAHATTI - 591 240,
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NC: 2024:KHC-D:17309
MFA No. 100541 of 2021
C/W MFA No. 100542 of 2021
TQ: ATHANI, DIST: BELAGAVI.
2. GIRISH S/O. BHIMAPPA NANDESHWAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: REDDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
3. SMT. MAHADEVI W/O. BASAPPA AWATI,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: SATTI - 591 240, TQ: ATHANI,
DIST: BELAGAVI.
4. SMT. IJAVVA W/O. RAMAPPA AWATI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MADABHAVI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
5. MURIGEPPA S/O. ANNAPPA GALAGALI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: RADDERAHATTI - 591 240,
TQ: ATHANI, DIST: BELAGAVI.
6. THE MANAGING DIRECTOR,
UGAR SUGARS WORKS LTD.,
UGAR KHURD - 591 316,
TQ: ATHANI, DIST: BELAGAVI.
7. THE MANAGING DIRECTOR,
ATHANI FARMERS SUGARS FACTORY LTD.,
KEMPAWAD, NAVLIHAL - 591 234,
TQ: ATHANI, DIST: BELAGAVI.
8. SMT. GOURAVVA W/O. SHIVAPPA AWATI,
AGE: 70 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: SATTI - 591 240, TQ: ATHANI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI RAMACHANDRA A.MALI, ADVOCATE FOR R5;
R1 TO R4 AND R6 TO R8 ARE SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF THE
CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE ORDER
DATED 31.5.2021 ON I.A.NO.VII IN O.S. NO.57/2016 ON THE FILE
OF PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
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NC: 2024:KHC-D:17309
MFA No. 100541 of 2021
C/W MFA No. 100542 of 2021
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) MFA No.100541/2021 is filed challenging the order dated 31.05.2021 passed on I.A.No.1 in O.S.No.57/2016 by the Principal Senior Civil Judge, Athani1 and MFA No.100542/2021 is filed challenging the order dated 31.05.2021 passed on I.A.No.7 in O.S.No.57/2016 by the Trial Court.
2. Both the above appeals are filed by the plaintiff under Order XLIII Rule 1 read with Section 151 of the Code of Civil Procedure, 19082 challenging the common order dated 31.05.2021 passed by the Trial Court. Hence, both the appeals are taken up for consideration together.
3. The relevant facts leading to the present appeals are that the appellant-plaintiff instituted a suit in O.S.No.57/2016 for partition and separate possession claiming ½ share in the suit property. The property, which is subject 1 Hereinafter referred to as "the Trial Court" 2
Hereinafter referred to as "CPC"-5-
NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021 matter of the suit is the southern portion to an extent of 4 acres 31 guntas (including 5HP motor) out of total extent of 9 acres 21 guntas of land in R.S.No.512/1A situated at Satti village of Athani Taluk3.
4. The respondents herein have been arrayed as defendants in the suit. The plaintiff and defendants 1 to 4 are the members of a family. The defendant No.5 is the owner of R.S.No.530/9 measuring 1 acre 14 guntas and R.S.No.530/6 measuring 1 acre 13 guntas, which are situated adjacent to the suit property. The defendants 6 and 7 are the sugar factories, which the plaintiff alleges that the sugarcane grown by the defendant No.1 has been supplied through defendant No.5 to defendants 6 and 7.
5. Along with the suit, the plaintiff filed I.A.No.1 under Order XXXIX Rule 1 and 2 of CPC, wherein the plaintiff has sought for the following reliefs:
"Herein the application submitted on behalf of the applicant-plaintiff is as under.3
Hereinafter referred to as "the suit property"-6-
NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021 For the reasons to in the accompanying affidavit it is most humbly prayed that, an ex-parte ad-interim temporary injunction order may kindly be issued against the defendant no.5, his agents servants or any persons acting on his behalf restraining them from receiving the sugarcane bill from the defendants no.6 and 7 pending disposal of the suit, in the intersect of justice and equity."
6. The Trial Court by an ex-parte order of temporary injunction on I.A.No.1 dated 01.04.2016 has granted ex-parte injunction as sought for in I.A.No.1. Subsequently, the defendant No.5 filed I.A.No.7 under Order XXXIX Rule 4 of CPC seeking for the following reliefs:
"Herein the application submitted on behalf of the applicant-Defendant No.5 as under.
For the reasons stated in the accompanying affidavit it is most humbly prayed that, an ad- interim ex parte Temporary Injunction granted by this Hon'ble Court on I.A.No.1 may kindly be discharged or varied or set-aside by this Hon'ble Court, in the interest of justice and equity."
7. The Trial Court by its order dated 31.05.2021 rejected I.A.No.1 and allowed I.A.No.7 and vacated the ex- parte order of temporary injunction granted on 01.04.2016. Being aggrieved, the present appeals are filed. -7-
NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021
8. Heard submissions of learned counsel Smt. Surabhi Kulakarni for the appellants/plaintiffs and learned counsel Sri. Ramachandra A Mali for respondent No.5/defendant No.5 and learned counsel Sri. Sanjay S Katageri for respondent No.7/defendant No.7.
9. Learned counsel for the petitioner assailing the order of the Trial Court contends that the material placed on record would indicate that defendant No.5, who was admittedly growing sugarcane of variety of 86032 has also supplied 265 variety, which is admittedly grown in the suit property. Hence, it is contended that the relief sought for in I.A.No.1 is required to be granted. Hence, the learned counsel for the petitioner seeks for allowing the above appeals granting the relief sought for.
10. Per contra, learned counsel for respondent No.5/defendant No.5 opposing the above appeals contends that the defendant No.5 is a stranger to the suit property and to the family of plaintiff and defendants 1 to 4, and being a neighbour he has been dragged into the present litigation. It is further contended that the order of the Trial Court is just and proper -8- NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021 and ought not to be interfered with by this Court in the present appeals. However, it is pointed out by the learned counsel for respondent No.5/defendant No.5 that the cane weighment slip dated 29.02.2016 pertaining to the harvesting order relied upon by the plaintiff would disclose that the sugarcane varieties that is supplied by defendant No.5 to defendant No.7 is only that of 86032 variety.
11. The submissions of the learned counsels have been considered and the materials on record have been perused.
12. The Trial Court while considering I.A.No.1 and 7 has recorded the following findings:
"7. As per the documents produced by the defendant No.6, the defendant No.5 has raised sugarcane crop of 86032 variety in the lands bearing RS No.530/9 and 530/6 during the year 2014- 15. The defendant No.6 has also produced documents to show that the defendant No.5 has transported sugarcane crops of 86032 and 265 variety during the year 2013. It is the case of the plaintiff that the cause of action for the suit arose on 17.3.2016 when he came to know that the defendant No.1 has transported the sugarcane in the name of defendant -9- NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021 No.5. Therefore, it is clear that the defendant No.5 has not transported sugarcane crop of 265 variety to the sugar factories of defendants No.6 and 7 during the year 2015-16. Therefore, I am of the view that plaintiff has not made out a prima facie case, the balance of convenience not lies in his favour. If the temporary injunction is not vacated the defendant No.5 would be put to irreparable loss and injury rather than the plaintiff. Accordingly, points No.1 to 3 are answered in the negative and point No.4 in the affirmative."
(Emphasis supplied)
13. It is forthcoming that the Trial Court has recorded a finding that the sugarcane of 86032 variety and 265 variety transported by defendant No.5 was during the year 2013 and that in the suit, the cause of action averred by the plaintiff is alleged to have arose on 17.03.2016 and hence, recorded a finding that defendant No.5 has not transported sugarcane crop of 265 variety to the sugar factories of respondents 6 and 7 during the year 2015-16. Hence, the Trial Court has refused the injunction as sought for by the plaintiff.
14. Learned counsel for the appellant places reliance on a harvesting order dated 29.02.2016 issued by respondent No.6, which discloses that defendant No.5 has
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NC: 2024:KHC-D:17309 MFA No. 100541 of 2021 C/W MFA No. 100542 of 2021 supplied sugarcane of 86032 variety as well as 265 mix of variety. It is further contended that in the written statement filed by defendant No.5, it is specifically averred at paragraph 6 that the said defendant has grown sugarcane of 86032 variety and not of 265 variety. Hence, it is contended that the material on record having demonstrated that the defendant No.5 has supplied 265 variety to the defendant No.7/factory and defendant No.5 admittedly not having grown the said 265 variety, the relief as sought for by the plaintiff in I.A.No.1 is required to be granted. However, the said contention is sought to be responded to by the learned counsel for defendant No.5 by placing reliance on the cane weighment slip dated 29.02.2016 which shows sale of only variety No.86032.
15. It is relevant to note that even if the material on record would demonstrate one harvesting order, which discloses that the defendant No.5 has supplied 265 variety of sugarcane, which has been mixed along with 86032 variety of sugarcane grown in the property of defendant No.5 at the interim stage it is impossible for the Court to record a finding as to the quantity of the said 265 variety sugarcane supplied by defendant No.5 to defendant No.6.
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16. The Trial Court while considering I.A.No.1 and 7 has exercised its discretion in refusing the injunction sought for by the plaintiff. This Court in an appeal as against the said discretionary order is required to hold that there is no conclusive material that defendant No.5 has also supplied 265 variety mixed sugarcane along with 86032 variety of sugarcane. The balance of convenience and hardship also does not lie in favour of the plaintiff. Hence, the plaintiff has not made out any ground for interference with the exercise of discretion in the facts of the present case.
17. However, the appeals are disposed off by observing that it shall be open for the appellant-plaintiff to prove before the Trial Court during the trial of the suit with regard to the quantity of the sugarcane crop grown in the suit property that was supplied through defendant No.5 to defendant No.6 for the purpose of claiming mesne profits from defendants 1 to 4.
18. With the said observation, the appeals are disposed off.
Sd/-
(C.M. POONACHA) JUDGE YAN/CT-ASC, List No.: 1 Sl No.: 12