The High Court
Case Details
- 1 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 4690 OF 2025 (CPC) BETWEEN:
Legal Reasoning
SRI R PRAKASH S/O SRI D RAJANNA AGED ABOUT 66 YEARS R/AT NO. 40, "SADHANE NILAYA" 4TH CROSS, VISHWESHWARAIAH LAYOUT SIDEDAHALLI ROAD NAGASANDRA POST BENGALURU-560 073. (BY SRI. DAMODAR N.N., ADVOCATE) AND: SRI B BOREGOWDA S/O SRI BORAIAH AGED ABOUT 61 YEARS R/AT NO.2/12, 6TH CROSS GANESHA BLOCK, NANDINI LAYOUT BENGALURU-560 086. …APPELLANT (BY SRI. THIMMEGOWDA, ADVOCATE FOR C/R) …RESPONDENT THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 11.06.2025 PASSED ON I.A. IN OS.NO. 614/2025 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DSITRICT, BENGALURU, DISMISSING THE I.A.FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ALLOWING THE I.A. FILED UNDER ORDER 39 RULE 4 OF CPC. Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT The present appeal is filed under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908 calling in question the order dated 11.06.2025 passed on I.A. in O.S.No.614/2025 by the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru1. 2. The parties are referred as per the ranking before the trial court for the sake of convenience. 3. The relevant facts in a nutshell are: The appellant instituted suit in O.S.No.614/2025 seeking for a declaration that by virtue of sale deed dated 20.05.2014, the plaintiff is the absolute owner of the suit property and has also sought for a direction for removal of unauthorized construction over the suit property, as also for delivery of possession of the same to the plaintiffs and for other reliefs. 1 Hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR 4. The defendant has entered appearance in the suit and contested the same. 5. Along with the suit, the plaintiff has also filed an I.A. under Order XXXIX Rule 1 & 2 of Code of Civil Procedure, 1908 seeking to restrain the defendant or anybody claiming under him from proceeding with the construction of the building over the suit property. The same was opposed by the defendant. The trial court granted an ex-parte order of temporary injunction dated 29.03.2025 pursuant to the application filed by the plaintiff. Thereafter, the trial court by order dated 11.06.2025 dismissed the application filed by the plaintiff, allowed the application filed by the defendant and vacated the ex-parte order of temporary injunction. Being aggrieved, the present appeal is filed by the plaintiff. 6. Heard the submissions of learned counsel Sri Damodar.N. for the appellant and learned counsel Sri Thimmegowda for the caveator respondent/defendant. 7. Along with the above appeal, the appellant has filed I.A.No.1/2025 under Order XXXIX Rule 1 & 2 of Code of Civil - 4 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR Procedure, 1908 for grant of injunction and I.A.No.2/2025 for stay of the impugned order dated 11.06.2025. 8. At the outset, the learned counsel for the respondent has filed memo along with photographs placing on record that the defendant has already completed construction of a residential house in a portion of the suit property and that the defendant is already in possession of the same. Photographs of the completed residential house stated to have been constructed by the defendant is placed on record. 9. At this juncture it is relevant to note that the trial court, vide impugned order, has placed on record the oral undertaking given by the defendant before the trial court that he would remove the encroachment if there is a court order for him to do so, upon final adjudication of the suit. 10. The respondent has also filed an affidavit wherein it is stated as follows: "I, B. Bore gowda S/o Sri, Boraiah, aged about 61 years S/o Sri Boraiah Residing at 588 Sir M Vishweshvaraiah Layout Extension 9th Block Bangalore 60, do hereby solemnly affirm and state on oath as follows:- - 5 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR 1. I am the respondent 1 in the above appeal and fully conversant with the facts and circumstances of the case and hence I am deposing hereto. 2. The appellant has filed Suit OS No 614 of 2025 in the court of IV Addl. Senior Civil Judge, Bangalore Rural, at Bangalore seeking the relief of Declaration his Ownership over suit schedule property, directing me to demolish the construction made in the suit schedule property and also for possession of suit schedule property. 3. I hereby undertake that if the appellant succeeds fully in the pending suit and Judgment and Decree of trial court attains finality, I will comply with the same".
Decision
11. In view of the above mentioned, the above appeal is disposed of, recording the undertaking of the respondent- defendant that if the appellant succeeds in the suit he will comply with the final orders that may be passed in the suit. 12. Learned counsel for the appellant further submits that the observations made by the trial court while passing the impugned order dated 11.06.2025 that the encroachment of a portion of the suit property is not only by the defendant, but by the other owners is contrary to the material on record. 13. Any observations made by the trial court are only to be construed as for the purpose of consideration of the impugned applications filed before it and the trial court shall proceed with the adjudication of the suit on its merits - 6 - NC: 2025:KHC:22690 MFA No. 4690 of 2025 HC-KAR uninfluenced by any observations made in the impugned order dated 11.06.2025. All contentions of the parties are kept open. Sd/- (C.M. POONACHA) JUDGE SNB List No.: 2 Sl No.: 7