Karnataka High Court
Rasul Sab S/O Hussain Sab Pendari vs Arjun S/O Shivappa Arbenchi on 30 August, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30 t h DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.76297 OF 2013 [GM-CPC]
BETWEEN:
RASUL SAB S/O HUSSAIN SAB PENDARI,
AGE: 48 YEARS, OCC: BUSINESS
AND AGRICULTURE, R/O.YARAGATTI,
TQ: SAVADATTI, DIST: BELGAUM.
... PETITIONER
(By Sri. SHRIKANT T PATIL, ADV.)
AND
1. ARJUN S/O SHIVAPPA ARBENCHI,
AGE: 10 YEARS, OCC: STUDENT,
2. KUMAR ARUN S/O SHIVAPPA ARBENCHI
AGE: 6 YEARS, OCC: STUDENT
RESPONDENT NO.1 & 2 BY MINOR GUARDIAN
YELLAWWA W/O SHIVAPPA ABENCHI,
AGE: 40 YEARS OCC: HOUSE HOLD WORK,
R/O.JEEVAPUR, TQ SAVADATTI
DIST: BELGAUM.
... RESPONDENTS
(By Sri. K L PATIL, FOR C/R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING T O
QUASH THE IMPUGNED ORDER PASS ED IN MA
NO.9/2012 PASS ED BY SENIOR CIVIL JUD GE
SAVADATTI, DTD.07.02.2013 BE PASSED .
This writ petition coming on for Preliminary
Hearing this day, the Court made the following:
O R D E R
O.S. No.198/2011, filed by the petitioner against Shivappa Fakerappa Arebenchi--father of respondents, based on an agreement of sale, was decreed on 01.07.2012. The defendant in the suit has filed Misc.Case No.6/2012 under Order IX Rule 13 CPC, to set aside the decree, which is termed as an exparte decree, passed in O.S. No.198/2011.
2. Respondents have instituted O.S. No.234/2012, against the petitioner to pass a decree of perpetual injunction, in respect of the property which was the subject matter of consideration in O.S. No.198/2011. :3:
3. IA-I filed along with O.S. No.234/2012, having been objected, was rejected by the trail court on 11.11.2012. When assailed in M.A. No.9/2012, on the file of Senior Civil Judge, Saundatti by the plaintiffs, the appeal was allowed, the impugned order was set aside and IA No.I filed in the suit was allowed and the defendant was temporarily restrained from interfering with the peaceful possession and enjoyment of the suit schedule property. Questioning the said judgment, defendant has filed this writ petition.
4. Heard Sri.Shrikant T.Patil, learned advocate for the petitioner and Sri.K.L.Patil, learned advocate for the respondents and perused the writ record.
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5. Undeniably, possession of the property was not delivered along with agreements of sale and the decree passed in O.S. No.198/2011 on 01.07.2012 has not been executed. Hence, the petitioner cannot claim that he is in possession and enjoyment of the property, which is the subject matter of O.S. No.198/2011 and O.S. No.234/2012. Respondents are none other than the children of the vendor of petitioner. Vendor of the petitioner--defendant in O.S. No.198/2011, has filed Misc.Case No.6/2012, to set aside the decree dated 01.07.2012 passed in O.S. No.198/2011 and the same is pending.
6. There being no dispute that the respondents are the children of defendant in O.S. No.198/2011 and possession of the suit property having not been delivered to the petitioner herein, either pursuant to the contract or pursuant to the :5: decree passed on 01.07.2012, the Court below is justified in allowing IA-I filed along with O.S. No.234/2012. In the circumstances, the impugned order is neither arbitrary nor perverse much less illegal, to interfere in exercise of writ jurisdiction under Article 227 of Constitution of India.
In the result, the petition being devoid of merit is rejected. However, the trial court is directed to decide Misc.Case No.6/2012 and O.S.No.234/2012 simultaneously and also expeditiously.
The petitioner in Misc.Case No.6/2012 and the plaintiffs in O.S. No.234/2012 shall adduce and complete their side of evidence within three months period from the date points/issues are raised and respondent/defendant shall adduce and complete his side of evidence within a period of :6: two months from the date the petitioner/plaintiffs close their case.
The trial court shall decide the Misc. Case and suit, within two months period, from the date trial is complete.
No costs.
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JUDGE Ct:byg/-
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