Sri Prateek Kumar Vs Sri K Muniraju

SRI. B.V. MADHAV S/O LATE BALASUBRAMANIAM AGED ABOUT 49 YEARS R/AT NO.2/1686, SOWPARNIKA 1ST CROSS, 2ND BLOCK VISHWA PRIYA LAYOUT, BEGUR BANGALORE - 560068.

¶11

…PETITIONER

¶12

(BY SRI. HARSHA D. JOSHI, ADV.,)

¶13

AND:

¶14

SRI. K. MUNIRAJU S/O LATE KEMPANNA AGED ABOUT 50 YEARS RESIDING AT NO.2231/1 D BLOCK, NEAR WATER TANK SAHAKARA NAGAR BANGALORE 560092.

¶15

2 -

¶16

NC: 2025:KHC:25568 W.P. No.13198/2020

¶17

HC-KAR

¶18

SRI. K.G. KRISHNA S/O GULIGOWDA AGED ABOUT 50 YEARS RESIDING AT NO.1680 5^TH A CROSS, 10TH MAIN 2ND BLOCK, BSK 2ND STAGE BANGALORE 560050.

¶19

…RESPONDENTS

¶20

(BY SRI. V.B. SHIVAKUMAR, ADV., FOR R2 R1 SERVED AND UNREPRESENTED)

¶21

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE ORDERS DTD.7.11.2020 IN O.S.NO.746/2020 PASSED BY THE I ADDL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, IN FAILING TO CONSIDER IA NO.II FILED BY THE PETITIONER UNDER ORDER XXXIX RULE 1 AND 2 BY PASSING AN EX-PARTE ORDER THE CERTIFIED COPY OF THE ORDER IS PRODUCED AS ANNEXURE-A. DIRECT THE I ADDL SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI TO CONSIDER IA NO.II FILED BY THE PETITIONER IN O.S.NO.746/2020 UNDER ORDER XXXIX RULE 1 AN 2 EXPEDITIOUSLY, CERTIFIED COPY OF THE IA NO.II IN O.S.NO.746/2020 IS PRODUCED AS ANNEXURE-C TO THIS W.P. & ETC.

¶22

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶23

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶24

ORAL ORDER

¶25

This petition is filed seeking following reliefs:

¶26

"a) Issue a writ in the nature of certiorari and quash the orders dated 07/11/2020 in O.S.No.746/2020 passed by the I Addl. Senior Civil Judge and JMFC, Devanahalli in failing to consider I.A.No.II filed by the Petitioner Under Order XXXIX Rule 1 & 2 by passing an ex-parte order, the certified copy of the order is produced as Annexure-A.

¶27

3 - NC: 2025:KHC:25568 W.P. No.13198/2020

¶28

HC-KAR

¶29

b) Issue a writ in the nature of mandamus and direct the I Addl. Senior Civil Judge and JMFC, Devanhalli to consider IA.No.II filed by the Petitioner in O.S.No.746/2020 Under Order XXXIX Rule 1 & 2 expeditiously Certified copy of the I.A.No.II in O.S.No.746/2020 is produced as Annexure-C to this Writ Petition."

¶30

Sri.Harsha D. Joshi, learned counsel appearing

¶31

for the petitioner submits that the petitioner has filed a suit for decree of perpetual injunction and other reliefs. In the said suit, the petitioner filed an application under Order XXXIX Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC'). However, the trial Court under the impugned order, issued notice on the application as well as summons in the suit without appreciating the urgency involved. It is submitted that this Court on prima facie looking into the material on record granted interim protection on 23.11.2020 and if the same protection is continued till the disposal of the suit, the purpose of the writ petition would be served. Hence, he seeks to dispose of the writ petition.

¶32

4 -

¶33

NC: 2025:KHC:25568 W.P. No.13198/2020

¶34

HC-KAR

¶35

Per contra, Sri.V.B.Shivakumar, learned counsel

¶36

appearing for respondent No.2 fairly concedes to the said submission made by the learned counsel for the petitioner and seeks to dispose of the petition.

¶37

I have heard the arguments of the learned counsel for the petitioner, the learned counsel for respondent No.2 and meticulously perused the material available on record.

¶38

The petitioner filed a suit in OS.No.746/2020 for relief of perpetual injunction restraining the defendants or anyone claiming under them from alienating, creating any charge or encumbrance over the suit schedule properties and along with other reliefs. In the said suit, the petitioner/plaintiff filed an application seeking for temporary injunction. The trial Court under the impugned order dated 07.11.2020, issued suit summons to the defendants as well as notice on the application. Being aggrieved, the present petition is filed for

¶39

5 -

¶40

NC: 2025:KHC:25568 W.P. No.13198/2020

¶41

HC-KAR

¶42

non-consideration of the application. This Court on

¶43

23.11.2020 passed the following order:

¶44

"Issue emergent noticed.

¶45

The respondents are restrained from alienating or encumbering the subject property till next date of hearing."

¶46

Considering the submissions advanced on both

¶47

sides, I am of the considered view that the interest of

¶48

justice would be met if the interim order granted by this Court on 23.11.2020 is continued till the consideration of IA.No.II filed by the petitioner under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC. Hence, I proceed to pass the following:

¶49

ORDER

¶50

i) The writ petition is allowed.

¶51

ii) The interim order dated 23.11.2020 is

¶52

continued till the trial Court dispose of the application filed by the petitioner under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC.

¶53

NC: 2025:KHC:25568 W.P. No.13198/2020

¶54