At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR
For the Appellant: Ashok Haranahalli, Senior Counsel, M.S. Varadarajan, Advocate. For the Respondents: R1 to R3, T.N. Raghupathy, R. Bhadrinath, Advocates.
(Prayer: This MFA filed under Order 43 Rule 1(R) of CPC, against the order dated 15.03.2021 passed on IA No.17 in O.S.No.9100/2011 on the file of Xii Additional City Civil and Sessions Judge (CCH-27), Bangalore; dismiss the said I.A I.E., Ia.No.17 filed by Defendants 16 to 18 (Transposed as Plaintiffs 4 to 6), I.E., Respondents 1 To 3 herein, by allowing appeal.)
1. This appeal by defendant No.15 in O.S.No.9100/2011 is directed against the impugned order dated 15.03.2021 passed by XII Addl.City Civil Judge, Bengaluru City, whereby the trial Court allowed I.A.No.17 filed by respondent Nos. 1 to 3 - defendant Nos.16 to 18 (subsequently transposed plaintiff Nos.4 to 6) under Order 39 Rule 1 and 2 of C.P.C restraining the plaintiffs and defendant Nos.5, 6, 12 and 15 (Appellant) by putting up unauthorized structures in the suit schedule property.
2. By the impugned order, the trial Court allowed I.A.No.17 and thereby passed an order of Temporary Injunction restraining the plaintiffs and defendant Nos.5, 6, 12 and 15 (Appellant) from putting up unauthorized structures in the suit schedule property. Aggrieved by the said impugned order, the appellant is before this Court by way of the present appeal.
3. Heard Sri.Ashok Haranahalli, learned Senior counsel for Sri.Varadarajan M.S, learned counsel for appellant and Sri.T.N.Raghupathy, learned counsel on behalf of Sri.Bhadrinath. R, learned counsel for Caveator-respondent Nos.1 to 3 and perused the material on record.
4. Though several contentions have been urged by both sides in support of their respective claim, the material on record indicates that it is not in dispute that respondent Nos.1 to 3 were originally arrayed as defendant Nos.16 to 18 in the suit in O.S.No.9100/2011, by which time they filed instant Interlocutory application in I.A.No.17 under Order 39 Rule 1 and 2 C.P.C. However, along with the said interlocutory application or subsequent thereto, the respondent Nos.1 to 3 did not file any written statement/counter-claim putting forth their claim in the suit.
5. The material on record also indicates that even after the respondent Nos.1 to 3 (original defendant Nos.16 to 18) were transposed as plaintiff Nos.4 to 6 in the suit, they did not file any additional plaint/pleading in support of their instant Interlocutory application I.A.No.17; in other words either in their status as defendant Nos.16 to 18 or Plaintiff Nos.4 to 6, there are no pleadings on behalf of respondent Nos.1 to 3 by way of plaint/written statement/counter-claim as contemplated in law. In the absence of any pleading by respondent Nos.1 to 3, I am of the considered opinion that the trial Court clearly committed an error in considering and allowing the Interlocutory application in I.A.No.17 filed by respondent Nos.1 to 3 without there being any pleadings by way of plaint/written statement/counter-claim filed by the respondent Nos.1 to 3 as required in law.
6. Under these circumstances, without expressing any opinion on the merits/demerits on the rival contentions and reserving liberty in favour of respondent Nos.1 to 3 to file appropriate pleadings as well as appropriate applications as they may be so advised, I deem it just and proper to dispose of this appeal by setting aside the impugned order and by issuing certain directions.
In the result, I pass the following:-
(i) Appeal is hereby disposed of.
(ii) Impugned order dated 15.03.2021 in O.S.No.9100/2011 on the file of XII Addl.City Civil Judge, Bengaluru City is set aside and I.A.No.17 filed by respondent Nos.1 to 3 stands dismissed.
(iii) Liberty is reserved in favour of respondent Nos.1 to 3 to file appropriate pleadings as well as Interlocutory applications in support of their claim.
(iv) Upon respondent Nos.1 to 3 filing such pleadings and/or Interlocutory applications, liberty is reserved in favour of other parties including Appellant to file their written statement/objections/counter/response to the same.
(v) After completion of the pleadings and applications/objections of the parties as stated supra, the trial Court shall consider and dispose of the said Interlocutory application(s) filed by respondent Nos.1 to 3 on merits in accordance with law, as expeditiously as possible and without being influenced by the findings/observa
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tions made in the impugned order. (vi) Having regard to the urgency pleaded by respondent Nos.1 to 3, the trial Court is directed to dispose of the Interlocutory application(s) to be filed by respondent Nos.1 to 3 within a period of four weeks after completion of pleadings/applications/objections (vii) All rival contentions are kept open and no opinion is expressed on the same. Subject to the above directions, appeal is disposed of in the above said terms.