Disposed

Harisha H T v. Suresh

Karnataka HC3 Aug 2023WP/13523/2023

Case brief

AI extract

What is this about?

This writ petition challenged interim injunction orders passed in an underlying O.S. where the petitioner was not a party. The High Court held that the petitioner ought to have sought impleadment in the trial court rather than approaching this Court under Article 227. The Writ Petition was disposed of without interference.

What did the court decide?

The writ petition was disposed of without interference; the petitioner was directed to pursue impleadment applications in the lower court.

Harisha H T Vs Suresh — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:27154 WP No. 13523 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 13523 OF 2023 (GM-CPC)

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BETWEEN:

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HARISHA.H.T S/O H.K.THIMMARAYIGOWDA, AGED ABOUT 50 YEARS, OCCUPATION-AGRICULTURALIST HEBSUR VILLAGE, SALIGRAMA HOBLI, K.R. NAGARA TALUK, HARADANAHALLI, MYSURU-571604.

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…PETITIONER

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(BY SRI.MANU.N.P.., ADVOCATE)

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AND:

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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SURESH S/O THIMMEGOWDA, AGED ABOUT 42 YEARS, R/AT HEBSUR VILLAGE, SALIGRAMA HOBLI, K.R. NAGARA TALUK, HARADANAHALLI, MYSURU-571604.

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PANCHAYATH DEVELOPMENT OFFICER HONNENAHALLI VILLAGE PANCHAYATH, HONNENAHALLI VILLAGE, SALIGRAMA HOBLI, K.R. NAGARA TALUK, MYSURU DISTRICT 571106.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER MADE IN MA.NO.7/2022 PASSED BY HONBLE SENIOR CIVIL JUDGE AND JMFC, KRISHNARAJANAGARA, MYSURU ON 28.03.2023 VIDE ANNX-H CONSEQUENTLY TO QUASH THE ORDER DTD. 18.10.2022, MADE ON

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NC: 2023:KHC:27154 WP No. 13523 of 2023

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I.A.NO.1, FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC FILED BY THE RESPONDENT No.1 i.e., PLAINTIFF IN O.S.NO.164/2021 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, KRISHNARAJANAGAR, VIDE ANNX-G; QUASH THE ORDER DTD. 31.05.2023, MADE ON I.A.NO.6 FILED UNDER SECTION 151 OF CPC FILED BY THE RESPONDENT No.1 IN O.S.NO.164/2021 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, KRISHNARAJANAGA, VIDE ANNX-L.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, a non-party to the suit is before this Court under Article 227 of the Constitution of India questioning the order dated 18.10.2022 on I.A.No.1 filed under Order 39 Rule 1 and 2 of CPC in O.S.No.164/2021 on the file of the Additional Civil Judge & JMFC., Krishnarajanagar (Annexure-G) as well as order dated 28.03.2023 passed by the Senior Civil Judge and JMFC at Krishnarajanagara, Mysuru in M.A.No.7/2022 (Annexure-H).

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The petitioner has also filed I.A.No.1/2023 under Section 151 of CPC seeking leave to permit the

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NC: 2023:KHC:27154 WP No. 13523 of 2023

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petitioner to prosecute the subject matter before this Court.

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Heard the learned counsel Sri.Manu.N.P., for petitioner and perused the writ petition papers.

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Learned counsel for the petitioner would submit

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that the petitioner was successful bidder in the auction with respect to fishing rights conducted by second respondent-Panchayath and lease in respect of the same was executed on 10.08.2022. Thereafter the first respondent whose lease had came to an end, approached the Civil Court in O.S.NO.164/2021, without making the petitioner as party and only making the second respondent-Panchayath as party and obtained an interim order of injunction under order dated 18.10.2022. Against which, second respondent–Panchayath filed M.A.No.7/2022. The said appeal was dismissed confirming the order passed by the Trial Court under Order 39 Rule 1 and 2 of CPC. Challenging both the orders passed in

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NC: 2023:KHC:27154 WP No. 13523 of 2023

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O.S.No.164/2021 as well as M.A.No.7/2022, petitioner is before this Court.

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Learned counsel for the petitioner would submit that the first respondent without making the petitioner as party, obtained interim order behind the back of the petitioner. Further, learned counsel would submit that the petitioner was the successful bidder in the auction conducted by the second respondent-Panchayath and in favour of petitioner lease with regard to fishing rights was executed. He submits that the Trial Court could not have granted order of injunction in the absence of necessary party. Further learned counsel would submit that the Appellate Court also failed to notice that the order was passed without there being necessary party to the proceedings. Further, learned counsel would submit that though it was within the knowledge of the first respondent that lease is executed in favour of the petitioner, first respondent deliberately failed to implead the petitioner to the suit. Learned counsel would submit that the order of

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5 - NC: 2023:KHC:27154 WP No. 13523 of 2023

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injunction passed by the Trial court is against the material on record and without noticing that lease in respect of the first respondent was expired, granted an order of injunction. Further, learned counsel would submit that if the orders impugned herein are not stayed, the petitioner would suffer irreparable injury and financial loss.

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Having heard the learned counsel for the petitioner and on perusal of the writ petition papers, I am of the view that no case is made out to interfere with the impugned orders under Article 227 of the Constitution of India for the following reasons:

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At the first instance, the petitioner is not a party to the proceedings. A person who is not a party to the proceedings ought to have himself impleaded in the suit and sought for vacating interim order. The injunction order is passed on 18.10.2022 in O.S.No.164/2021 and the Panchayath had filed M.A.No.7/2022 challenging the order of injunction. The said appeal was rejected by order dated 28.03.2022. The present writ petition is filed before this

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6 - NC: 2023:KHC:27154 WP No. 13523 of 2023

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Court on 23.06.2023. Admittedly, the lease was executed in favour of the petitioner on 10.08.2022. Subsequently the Panchayath failed to hand over possession of the lake in respect of which lease is granted, is because of the interim order passed by the Trial Court in O.S.No.164/2021. The material on record would indicate

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that the petitioner had the knowledge of pendency of the suit as well as interim order passed and the order passed by the Appellate Court. Instead of getting himself impleaded in the pending suit, the petitioner could not have approached this Court when he was aware of the proceedings.

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7. Learned counsel for the petitioner would submit

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that the petitioner has filed impleading application and application for vacating interim order on 10.07.2023 in O.S.NO.164/2021 and it is submitted that the case is posted on 30.08.2023. It is open for the petitioner to pray for early disposal of the applications filed, by getting the suit advanced. If advancement application is made, the

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NC: 2023:KHC:27154 WP No. 13523 of 2023

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Trial Court shall consider the same and take up the impleading application as well as vacating application and pass appropriate order, after providing an opportunity to the parties expeditiously.

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With the above, writ petition stands disposed of.

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Sd/JUDGE

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List No.: 1 Sl No.: 20

Harisha H T v. Suresh

Case brief

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Harisha H T v. Suresh

Case brief

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