Allowed

Sri Gangabailappa v. Smt Bylamma

Karnataka HC3 Sept 2021MFA/3722/2021

Case brief

AI extract

What is this about?

In this miscellaneous first appeal to CPC, the High Court allowed the appeal against the dismissal of an interim injunction application under Order 39 Rules 1 & 2 and Section 151 CPC. The court held the trial court's order was non-speaking, arbitrary, and erroneous as it failed to record reasons, setting it aside and directing a reconsideration.

What did the court decide?

The impugned order dated 16.01.2021 is set aside, and the trial court is directed to reconsider the application and pass an appropriate order within one month.

Sri Gangabailappa Vs Smt Bylamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE ASHOK.S.KINAGI

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MISCELLANEOUS FIRST APPEAL NO.3722 OF 2021 (CPC)

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BETWEEN:

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SRI GANGABAILAPPA S/O LATE RAMAIAH AND LATE DODDATHAYAMMA AGED ABOUT 26 YEARS RESIDING AT NO.149 KOWDENAHALLI RAMAMURTHYNAGAR BENGALURU - 560 016

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...APPELLANT

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(BY SMT. PARVATHY R NAIR, ADVOCATE)

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AND:

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SMT BYLAMMA WIFE OF LATE GANGAPPA AGED ABOUT 77 YEARS

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SMT CHIKKATHAYAMMA DAUGHTER OF LATE GANGAPPA AGED ABOUT 54 YEARS

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SMT NIRMALAMMA DAUGHTER OF LATE GANGAPPA AGED ABOUT 51 YEARS

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SMT NARAYANAMMA DAUGHTER OF LATE GANGAPPA

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AGED ABOUT 48 YEARS

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SMT DODDATHAYAMMA DAUGHTER OF LATE RAMAIAH AGED ABOUT 31 YEARS ALL ARE RESIDING AT NEAR DODDAMMA TEMPLE KOWDENAHALLI RAMAMURTHYNAGAR BENGALURU - 560 016

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SRI GANGAPPA SON OF HANUMANTHARAYAPPA AGED ABOUT 47 YEARS NO.71, KOWDEHALLI RAMAMURTHYNAGAR DOORVANINAGAR POST BENGALURU - 560 016

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SRI G KAMALESH SON OF GANGAPPA AGED ABOUT 43 YEARS NO.71, KOWDEHALLI RAMAMURTHYNAGAR DOORVANINAGAR POST BENGALURU - 560 016 …RESPONDENTS (BY SRI. PREMKUMAR, ADVOCATE FOR SRI. RUDRESH, ADVOCATE FOR C/R7)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 9(r) OF CPC, AGAINST THE ORDER DATED 16.01.2021 PASSED ON IA NO.3 IN OS NO.4710/2014 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.19), DISMISSING IA NO.3 FILED U/O 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant being aggrieved by the order on

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I.A.No.3 dated 16.01.2021 passed in

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O.S.No.4710/2014 by the VII Additional City Civil and Sessions Judge (CCH No.19), Bengaluru, has filed this appeal.

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The brief facts leading to the filing of this appeal are that:

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The appellant has filed a suit in O.S.No.4710/2014 for partition and separate

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possession. In the said suit, the appellant has filed an application in I.A.No.3 under Order XXXIX Rules 1 and 2 read with Section 151 of C.P.C., seeking for an order of temporary injunction against respondent No.7 not to put up any construction on the property gifted. The trial Court, after hearing the parties, has passed the

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order rejecting the application on 16.01.2021. The appellant being aggrieved by the same, has filed this appeal.

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Heard the learned counsel for the appellant

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and also learned counsel for the respondents.

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Learned counsel for the appellant submits

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that the trial Court without assigning any reasons has rejected the application and the order passed by the trial Court is not a speaking order. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the

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respondents supports the impugned order, but concedes that the trial Court has not assigned any reasons to reject the application filed by the appellant.

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6. Heard and perused the records and

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considered the submission of learned counsel for the parties.

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From the perusal of the impugned order,

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the trial Court observed in para No.9, which reads as under:

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" 9. Upon perusal of above documents and consideration of the above facts as plaintiff has not produced any documents in his favour and failed to make out a primafacie case and balance of convenience and also hardship. Hence, I answer point No.1 in the negative."

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From perusal of para No.9, the trial Court has not assigned any reasons for passing the impugned order. The impugned order passed by the trial Court is

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not a speaking order. Hence, the impugned order

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passed by the trial Court is arbitrary and erroneous

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and the same is liable to be set aside.

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In view of the discussion, I proceed to pass

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the following:

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ORDER

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The appeal is allowed.

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The impugned order dated 16.01.2021 passed in O.S.No.4710/2014 is set aside.

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The trial Court is directed to reconsider the application and pass appropriate order in accordance with law within a period of one month from the date of receipt of the copy of this order.

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In view of the disposal of the main appeal, I.A.No.2/2021 does not survive for consideration and

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disposed of accordingly.

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Sd/JUDGE

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ssb

Sri Gangabailappa v. Smt Bylamma

Case brief

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Sri Gangabailappa v. Smt Bylamma

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