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M/s. Sai Srinivasa Properties & Technologies Pvt. Ltd., Represent by its Director N. Vivekananda Reddy v/s Krishnappa & Others

    M.F.A. No. 2370 of 2020 (CPC)
    Decided On, 10 July 2020
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR
    For the Appellant: P. Chidananda, Advocate. For the Respondents: R17 to R19, R. Badrinath, Advocate.


Judgment Text

(Prayer: This Appeal is filed Under Order 43 Rule 1(R) of CPC, against the order dated: 13.08.2019 passed on I.A.No. 17, in O.S. No. 9100/2011 on the file of the Xii Additional City Civil and Sessions Judge (CCH No 27), Bengaluru City allowing the I.A.No. 17 filed Under Order 39 Rule 1 and 2 of CPC.)

1. This appeal by appellant - defendant No.15 arises out of the impugned order dated 13.08.2019 passed in O.S.No.9100/2011 by the XII Additional City Civil Judge, Bengaluru City, whereby the trial Court allowed the application I.A.No.17 filed by defendants No.16 to 18 for temporary injunction under Order 39 Rule 1 and 2 CPC, thereby restraining the defendants No.5, 6, 12 and 15 in the suit from putting up further construction on the suit schedule property pending disposal of the suit. It is relevant to state that before the trial Court, the suit schedule property has been described as agricultural property bearing Sy.No.83 measuring 1 acre 8 guntas, new Sy.No.83/1 measuring 21 guntas and new Sy.No.83/2 measuring 24 guntas situated at Panathur Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru District.

2. As stated supra, the appellant is defendant No.15 in the suit against whom an order of temporary injunction was passed by the trial Court under the impugned order. While the respondents No.1 and 2 herein are the plaintiffs in the suit, respondents No.3 to 19 are the remaining defendants in the suit. Among them, respondents No.17 to 19 are defendants No.16 to 18, who were the applicants in I.A.No.17, which is the subject matter of the impugned order. Respondents No.17 to 19 having entered appearance in the present appeal through their counsel, notice to respondents No.1 to 16 has been dispensed with in this appeal.

3. Though the matter was listed for admission, with the consent of learned counsel for the appellant and respondents No.17 to 19, the matter is taken up for final disposal.

4. Heard learned counsel for the appellant and respondents No.17 to19.

5. The appellant was arrayed as defendant No.15 in O.S.No.9100/2011 filed by Smt. Kaveramma and Others for declaration and injunction in respect of the suit schedule immovable property and for other reliefs. In the said suit, respondents No.17 to 19, who were impleaded subsequently were arrayed as defendants No.16 to 18 filed an application seeking to transpose themselves as additional plaintiffs in the suit. Though the said application was allowed by the trial Court, the said order passed by the trial Court has been stayed by this Court in W.P.No.8060/2019.

6. The material on record indicates that while the plaintiffs opposed the said I.A.No.17, the appellant-defendant No.15 against whom also temporary injunction was sought for did not file their Objections to I.A.No.17. In this context, learned counsel for the appellant submits that due to bonafide reasons, unavoidable circumstances and sufficient cause, it was not possible for the appellant-defendant No.15 to file objections and contest I.A.No.17 filed by respondents No.17 to 19. It is also contended that the said order passed by the trial Court, which operates against the appellant is causing great hardship to the appellant and hence, it is necessary that an opportunity be granted to the appellant to oppose the said application - I.A.No.17 filed by respondent Nos.17 to 19 since the impugned order allowing I.A.No.17 is working great hardship on the appellant.

7. Learned counsel for respondents No.17 to 19 submits that the appellant/defendant No.15 was placed exparte before the trial Court on 28.10.2017 and the said order placing the appellant exparte was set aside by the trial Court as recently as on 23.06.2020 by imposing cost of Rs.5,000/-. It is therefore contended that the present appeal filed on 28.02.2020, much before the order placing the appellant exparte was set aside by the trial Court, is not maintainable and the same deserves to be dismissed on this ground alone.

8. After hearing learned counsel for the appellant and learned counsel for respondents No.17 to 19, I am of the view that in the interest of justice, it would be just and proper to permit the appellant who has now filed its written statement, to file its Objections to I.A.No.17. In addition thereto, it is also necessary to permit the appellant to file a suitable application seeking vacation/modification/variation of the impugned order dated 13.08.2019 passed by the trial Court. In the event the appellant files its objections to I.A.No.17 as well as an application seeking vacation/modification/variation of the impugned order, respondents No.17 to 19 are also entitled to file their rejoinder thereto as well as objections to the said application. It is needless to state that pursuant thereto, the trial Court will take up I.A.No.17 as well as the aforesaid application to be filed by the appellant and dispose of the same on merits in accordance with law after affording reasonable opportunity to both sides. Having regard to the urgency pleaded by learned counsel for the appellant, I deem it appropriate to direct the trial court to dispose of the aforesaid applications as expeditiously as possible. All the rival contentions between the parties are hereby kept open to be urged before the trial Court.

9. In the result, I proceed to pass the following:

ORDER

The appeal is hereby disposed of subject to the following directions:

(i) Liberty is hereby reserved to the appellant to file objections to I.A.No.17 filed by defendants No.16 to 18 before the trial Court.

(ii) The appellant is also at liberty to file a suitable application seeking vacation/modification/ variation of the impugned order dated order dated 13.08.2019 passed in O.S.No.9100/2011 by the XII Additional City Civil Judge, Bengaluru City on I.A.No.17.

(iii) Liberty is also reserved in favour of defendant Nos.16 to 18 to file their rejoinder in support of I.A.No.17 as well as

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objections to any such application referred to supra to be filed by the appellant before the trial Court. (iv) Pursuant thereto, the trial Court shall proceed to hear and dispose of I.A.No.17 as well as any such aforesaid application filed by the appellant on merits and in accordance with law after affording sufficient opportunity to both sides. (v) The trial Court is also directed to dispose of the aforesaid applications, as expeditiously as possible, in the light of the observations and directions made in this order and without being influenced by the reasoning and findings recorded by it in the impugned order on I.A.No.17 dated 13.08.2019.
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