Dismissed

Sri Rudra Devaru v. Sri v Mohan Kumar

Karnataka HC12 Nov 2024RSA/215/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed under Section 100 of CPC ab initio. The court held that a suit for permanent injunction simpliciter abates upon the death of the sole defendant as the personal remedy does not survive, leaving no substantial question of law.

What did the court decide?

The Regular Second Appeal was dismissed at the stage of admission.

Sri Rudra Devaru Vs Sri v Mohan Kumar — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:45798 RSA No. 215 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO. 215 OF 2019 (INJ)

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BETWEEN:

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SRI RUDRA DEVARU S/O LATE SHIVARUDRAIAH, AND LATE BASAMMA, AGED ABOUT 66 YEARS, AGRICULTURIST, R/AT IJOOR EXTENSION, RAMANAGARA TOWN-571 511.

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…APPELLANT

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(BY SRI. D.R.RAJASHEKARAPPA., ADVOCATE)

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AND:

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SRI V.MOHAN KUMAR SINCE DEAD BY LR'S,

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Digitally signed by THEJASKUMAR N Location: High Court of Karnataka

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SMT. NAGARATHNAMMA W/O LATE V.MOHAN KUMAR, AGED ABOUT 39 YEARS,

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SRI. AKASH S/O LATE V.MOHAN KUMAR, AGED ABOUT 23 YEARS,

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SRI. AKSHAY S/O LATE V.MOHAN KUMAR, AGED ABOUT 21 YEARS, RESPONDENTS NO.1 TO 3 ARE R/AT 4^TH CROSS, IJOOR EXTENSION, RAMANAGARA TOWN-571 511.

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…RESPONDENTS

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(BY SRI. N.SUBBA SHASTRY., ADVOCATE)

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NC: 2024:KHC:45798 RSA No. 215 of 2019

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, SEEKING CERTAIN RELIEFS.

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THIS REGULAR SECOND APPEAL IS LISTED FOR ADMISSION, THIS DAY, AN ORDER IS MADE AS UNDER:

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ORAL ORDER

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Sri.D.R.Rajashekharappa., counsel for the appellant and Sri.N.Subba Shastry., counsel for the respondents have appeared in person.

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Heard the arguments and perused the appeal papers with care.

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The suit giving rise to this appeal was brought by the plaintiff against V.Mohan Kumar - the sole defendant seeking the relief of permanent injunction in O.S.No.11/2008 on the file of Prl. Civil Judge and JMFC, Ramanagara alleging that the sole defendant is interfering with his peaceful possession and enjoyment of the suit schedule property. On the trial of the action, the Trial Court vide Judgment dated 15.01.2013 dismissed the suit. The plaintiff assailed the Judgment of the Trial Court before the First Appellate Court. The First Appellate Court vide Judgment dated 16.07.2018

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NC: 2024:KHC:45798 RSA No. 215 of 2019

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dismissed the appeal. Hence, the plaintiff has filed the captioned appeal under Section 100 of CPC.

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Counsel Sri.D.R.Rajashekharappa., in presenting his arguments submits that the First Appellate Court disposed of the appeal on 16.07.2018 and the sole defendant died on 07.11.2018. Counsel therefore, submits that an appropriate order may be passed.

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The submission made by counsel for the appellant about the death of sole defendant V.Mohan Kumar is noted with care.

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A perusal of the Judgment and Decree of the Court of facts reveals that the plaintiff has failed to prove the possession over the suit schedule property and also the alleged interference by the sole defendant as of the date of filing of the suit. Furthermore, the sole defendant died on 07.11.2018.

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Suffice it to note that the suit is one for permanent injunction simpliciter. It is unnecessary to the pleadings in detail. Applying the principles of " actio personalis moritur cum persona" injunction is a personal remedy against a person, in particular, the defendant. Therefore, the very prayer itself makes it clear that it is a restriction against that person

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NC: 2024:KHC:45798 RSA No. 215 of 2019

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(defendant) or his agents or his men or anybody claiming under him or through him.

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This is the usual format in an injunction suit. Once a man dies, the cause of action dies with him and does not pass on to the legal representatives. It is perhaps well to observe that in a suit for permanent injunction simpliciter, where one or two more defendants die during the pendency of the suit before the final adjudication of the dispute, the right to sue does not survive. Hence, the suit itself abates. No substantial questions of law arises for consideration.

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Resultantly, the Regular Second Appeal is

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dismissed at the stage of admission.

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Sd/(JYOTI MULIMANI) JUDGE

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TKN

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List No.: 2 Sl No.: 32

Sri Rudra Devaru v. Sri v Mohan Kumar

Case brief

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Sri Rudra Devaru v. Sri v Mohan Kumar

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