SRI. V.M. MARULASIDDAPPA v. MAHESHWARAPPA

4. SMT. BEBI W/O BASAVARAJAPPA, AGED ABOUT 44 YEARS, OCC: HOUSE WIFE, R/O OBANAYAKANAHALLI POST, DODDA ALAGATTA, DAVANAGERE DISTRICT - 577 544.

5. SMT. SESHAMMA W/O LINGARAJ, AGED ABOUT 41 YEARS, OCC: HOUSE WIFE, R/O HUNASEKATTE VILLAGE, MANDALUR POST, DAVANAGERE DISTRICT - 577 566.

6. SMT.VANAJAKSHI W/O NAGARAJA AGED ABOUT 39 YEARS, OCC: HOUSE WIFE, R/O HUNASEKATTE VILLAGE, - 3 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR MANDALUR POST, DAVANAGERE DISTRICT - 577 566

7. SMT. SAVITHRI W/O NIRANJANAMURTHY, AGED ABOUT 37 YEARS, OCC: HOUSE WIFE, R/O NELLIKATTE VILLAGE, KALGERE POST, CHITRADURGA DISTRICT - 577 531.

8. SMT. JYOTHI W/O BASAVARAJA, AGED ABOUT 35 YEARS, OCC: HOUSE WIFE, R/O HULIKATTI VILLAGE, ANJALI POST, DAVANAGERE DISTRICT - 577 512.

9. HALESHI S/O MAHESHWARAPPA, AGED ABOUT 34 YEARS, OCC: AGRICULTURE, R/O VADDINAHALLI VILLAGE, HONNUR POST, DAVANAGERE DISTRICT - 577 556. LATE CHANDRAPPA S/O LATE SIDDAPPA ANGADI, DEAD BY HIS LRS

10. V.C. SIDDAPPA S/O LATE CHANDRAPA, AGED 52 YEARS, OCC: KIRANA BUSINESS, - 4 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR R/O YALLAMMA NAGAR 8TH CROSS, RING ROAD, DAVANAGERE - 577 002.

11. SHAMBULINGAPPA S/O LATE CHANDRAPPA, AGED 55 YEARS, R/O YALLAMMA NAGAR 8TH CROSS, RING ROAD, DAVANAGERE - 577 002.

12. SHIVAKUMAR S/O LATE CHANDRAPA, AGED 53 YEARS, R/O YALLAMMA NAGAR 8TH CROSS, RING ROAD, DAVANAGERE - 577 002.

13. SOUBAGHYA D/O LATE CHANDRAPPA, AGED 50 YEARS, R/O YALLAMMA NAGAR 8TH CROSS, RING ROAD, DAVANAGERE - 577 002.

14. VIJAYAMMA S/O LATE CHANDRAPPA, AGED 47 YEARS, R/O YALLAMMA NAAR 8TH CROSS, RING ROAD, DAVANAGERE - 577 002.

15. NIJAGUNA S/O LATE CHANDRAPPA, AGED 44 YEARS, - 5 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR R/O YALLAMMA NAGAR, 8TH CROSS, RING ROAD, DAVANAGERE - 577 002. …RESPONDENTS (BY SRI. G.J. SUNKAPUR, ADVOCATE FOR C/R10 (ABSENT)) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A DATED 05.09.2019 MADE ON I.A.NO.3 IN O.S.NO.283/2017 BY THE COURT OF ADDITIONAL CIVIL JUDGE, DAVANAGERE AND THE ORDER ANNEXURE-B DATED 13.11.2019 MADE IN M.A.NO.33/2019 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated

05.09.2019 in O.S.No.283/2017 by the Additional Civil Judge, Davanagere (for short, 'the trial Court') and the order dated 13.11.2019 passed in M.A.No.33/2019 by the I Additional Senior Civil Judge, Davanagere (for short, 'the Appellate Court'). - 6 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR

2. Sri. Hareesh Bhandary T., learned counsel appearing for the petitioner submits that the scope of the present writ petition is limited. It is submitted that the petitioner has filed a suit for declaration and permanent injunction against the respondents herein and in the said suit, the defendants have filed an application temporary injunction which came to be allowed and affirmed by the Appellate Court. It is submitted that the application filed by the defendants temporary injunction is not maintainable in view of the law laid down the Full Bench Court the case of Smt. Shakunthalamma and others v. Smt. Kanthamma and others1.

3. It is further submitted that this Court in similar circumstances in W.P.No.11543/2011 disposed of on

26.10.2021 and in W.P.No.11880/2021 disposed of on

23.09.2021 has remanded the matter back to the trial Court. Hence, he seeks to allow the petition and remand 1 ILR 2014 KAR 6025 - 7 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR back the matter to the trial Court to reconsider the application with regard to the maintainability.

4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. There is no representation for the respondents.

5. The petitioner herein has filed O.S.No.283/2017 before the Additional Civil Judge, Davanagere seeking relief of declaration and permanent injunction against the respondents herein. In the said suit filed by the petitioner, the respondents/defendants filed I.A.No.3 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908, seeking an order of temporary injunction against the plaintiff, restraining him or his men or anybody claiming under him from interfering with the peaceful possession and enjoyment of suit schedule property by defendants till disposal of the suit. - 8 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR

6. The trial Court vide order dated 05.09.2019 allowed the application filed by the defendants which was assailed by the petitioner in M.A.No.33/2019 and the appeal of the petitioner came to be dismissed.

7. It is to be noticed that the Full Bench of this Court in the case of Smt. Shakuntalamma and others referred supra at para-33 has observed as under: "33. The correct legal position as is clear from the statutory provision is as under: (i) Both the plaintiff and the defendant can maintain an application under Order XXXIX Rule 1(a) of the Code for the reliefs set out in the said provision; (ii) Insofar as relief under Order XXXIX Rule 1(b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit. However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39 Rule 1(b) and (c) of the Code. - 9 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR (iii) In cases which do not fall under Order XXXIX Rule of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this Code shall limit or otherwise affect such inherent power of the court. Accordingly, we answer the question of law referred to for our consideration in the negative."

8. In view of the enunciation of law laid down by the Full Bench of this Court, I am of the considered view that the trial Court is required to reconsider the application filed by the defendants under Order XXXIX Rule 1 and 2 of CPC keeping in mind the enunciation of law laid down by the Full Bench of this Court. Hence, I proceed to pass the following: ORDER i) The Writ Petition is allowed. ii) The impugned order dated 05.09.2019 passed on I.A.No.3 in O.S.No.283/2017 by the Additional Civil Judge, Davanagere and - 10 - NC: 2026:KHC:28488 WP No. 11135 of 2021 HC-KAR the order dated 13.11.2019 passed M.A.No.33/2019 by the I Additional Senior Civil Judge, Davanagere, are set aside. iii) The application filed by the defendant in I.A.No.3 under Order XXXIX Rule 1 and 2 of CPC, is restored on the file of the Additional Civil Judge, Davanagere. iv) The trial Court shall consider the said application after providing an opportunity to the parties in accordance with law. Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR List No.: 1 Sl No.: 16