Karnataka High Court
Rudrappa S/O Basappa Naikar vs Vanamala D/O Balappa Hosakote Mane on 20 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC-D:4067
WP No. 100116 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 100116 OF 2024 (GM-CPC)
BETWEEN:
RUDRAPPA
S/O BASAPPA NAIKAR
AGED ABOUT 50 YEARS
OCC: AGRICULTURE
R/O HOSATEGUR VILLAGE
TQ AND DIST DHARWAD
...PETITIONER
(BY SRI. SHIVARAJ.C.BELLAKKI.,ADVOCATE)
AND:
VANAMALA
D/O BALAPPA HOSAKOTE MANE
AGE 60 YEARS
YASHAVANT
NARAYANKAR
OCC HOUSEHOLD
R/O HOSATEGUR VILLAGE
Digitally TQ AND DIST DHARWAD
signed by
YASHAVANT
NARAYANKAR
...RESPONDENT
(BY SRI. M H PATIL &
SRI. HARSHAWARDHANA M PATIL .,ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI, FOR QUASHING THE ORDER DATED
15/12/2023 PASSED IN M.A.25/2023 BY THE COURT OF I ADDL
SENIOR CIVIL JUDGE AND CJM, DHARWAD VIDE ANNEXURE-A AND
ETC.
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NC: 2024:KHC-D:4067
WP No. 100116 of 2024
THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ in the nature of Certiorari, for quashing the order dated 15/12/2023 passed in M.A.25/2023 by the Court of I Addl Senior Civil Judge and CJM, Dharwad vide Annexure-A;
b. Pass any other order/relief, that this Hon'ble Court deems fit in the nature and circumstances of the case, in the interest of justice and equity.
2. The respondent had filed a suit in OS No.740/2022 seeking for a permanent injunction restraining the petitioner-defendant therein from obstructing the construction of a compound wall by the plaintiff. An interlocutory application filed in the said suit in IA No.1 under Order 39 Rule 1 & 2 seeking for the same reliefs came to be dismissed vide order date 11.7.2023. The plaintiff having challenged the same in MA No.25/2023, the First Appellate Court was pleased to grant such an order of injunction. It is -3- NC: 2024:KHC-D:4067 WP No. 100116 of 2024 challenging same, the petitioner is before this Court seeking for the aforesaid reliefs.
3. The contention of learned counsel for the petitioner is that once earlier the plaintiff had filed a suit in OS No.152/2021 seeking for declaration that the wall annexed to the sketch therein was a common wall and consequently restrained the defendant from demolishing the eastern side wall.
4. In the said suit, a subsequent application was filed upon the wall having collapsed in IA No.6, seeking for injunction restraining the defendant therein, obstructing the plaintiff constructing the wall on the eastern side of the plaintiff house in the property bearing VPC No.458 of Tegur village. The said application came to be dismissed vide order dated 7.10.2021 in OS No.152/2021 on IA No.6. An appeal having been filed in MA No.20/2021, the appeal also came to be dismissed vide order dated 31.1.2022. It is in that background learned counsel -4- NC: 2024:KHC-D:4067 WP No. 100116 of 2024 for the petitioner would submit that the very same relief which had been rejected by the trial Court and the First Appellate Court has now again been sought for in OS No.740/2022, which aspect has not been taken into account by the First Appellate Court. The First Appellate Court ought to have considered the earlier order passed in OS No.152/2021 and held it to be non-maintainable in view of the principles of res-judicata and ought to have rejected the application.
5. Learned counsel for the respondent would submit that the respondent would not lay a claim on the wall, the wall having collapsed. If the wall is permitted to be constructed, the same would be left to the exclusive ownership of the defendant and that the wall would be built only to an extent of eight inches.
6. Heard Sri.Shivaraj C.Bellakki learned counsel appearing for the petitioner and Sri.M.H.Patil and -5- NC: 2024:KHC-D:4067 WP No. 100116 of 2024 Sri.Harshawardhana M. Patil., learned counsel appearing for respondent. Perused papers.
7. Though various concessions have been made by the counsel for the respondent. The fact still remains, that in earlier suit in OS No.740/2022 when a similar relief was sought for in IA No.6, the same came to be dismissed. Which dismissal came to be upheld in MA No.25/2023 as narrated above. The said orders would apply as res-judicata inter-partes in respect of the very same wall which was an issue in the earlier suit and the findings thereon on the interlocutory application would be binding on both the parties.
8. The plaintiff could not have sought for a similar relief in OS No.740/2022 which had earlier been rejected in OS No.152/2021 which aspect has not been taken into consideration by the First Appellate Court in MA No.25/2023.
9. In that view of the matter, I pass the following;
-6- NC: 2024:KHC-D:4067 WP No. 100116 of 2024 ORDER i. The writ petition is allowed. ii. The order dated 15.12.2023 passed in MA
No.25/2022 by the First Additional Senior Civil Judge and CJM, Dharwad at Annexure-A is quashed.
iii. In view of the disposal of the main matter, the pending IA does not survive for consideration.
Sd/-
JUDGE SR List No.: 1 Sl No.: 44