Sri T Basappa Vs Sri v a Shriharsha

SRI V.A.SHRIHARSHA S/O. V. S. ARUNACHALA SHETTY AGED ABOUT 53 YEARS RESIDING AT NO.4140, SRIVARI 5^TH CROSS, KUVEMPU NAGARA M.C.C. “B” BLOCK, DAVANAGERE - 577 004. …RESPONDENT (BY SRI P.P. HEGDE, SENIOR ADVOCATE FOR SRI VIVEKANANDA N., ADVOCATE)

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NC: 2025:KHC:43826 WP No. 25528 of 2025 C/W WP No. 25438 of 2025

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS IN O.S.NO.138/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE IN SO FAR AS IT RELATES TO SCHEDULE PROPERTIES MENTIONED HEREUNDER SHOWN AS SCHEDULE-D PROPERTIES IN THE PLAINT IN O.S.NO.138/2023 IN ANNEXURE-B AND CONSEQUENTLY QUASH THE PROCEEDINGS INITIATED IN THE SAID SUIT BY FILING I.A.NO.2 UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE VIDE ANNEXURE-D AND CONSEQUENTLY QUASH THE ORDER MADE ON I.A.NO.2 (APPLICATION UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE) DATED-27.04.2024 IN 0.S NO.138/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE VIDE ANNEXURE-F AND GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

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IN WP NO. 25438/2025

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BETWEEN:

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SRI T. BASAPPA S/O LATE SRI T.SIDAPPA AGED ABOUT 67 YEARS RESIDING AT NO.1120, 3^RD CROSS TARALABALU EXTENSION DAVANAGERE - 577 004.

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PRESENT ADDRESS NO.1778A/1, 1^ST MAIN ROAD 1^ST CROSS, VIDYANAGARA VINAYAKA BADAVANE DAVANAGERE - 577 005.

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...PETITIONER

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(BY SRI P.D. SURANA, ADVOCATE)

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AND:

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SRI K. RAGHAVENDRA RAO

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HC-KAR

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S/O. LATE KALINGAPPA @ KALINGARAO AGED ABOUT 53 YEARS RESIDING AT NO.3742, 14^TH CROSS SIDDAVEERAPPA LAYOUT DAVANAGERE - 577 004.

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SRI B.C. JAYAPRAKASH S/O. B.V. CHANNAVEERA REDDY AGED ABOUT 54 YEARS RESIDING AT NO.1079, 1^ST MAIN TARALABALU EXTENSION DAVANAGERE - 577 004.

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...RESPONDENTS

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(BY SRI P.P. HEGDE , SENIOR ADVOCATE FOR SRI VIVEKANANDA N, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS IN O.S.NO.325/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE IN SO FAR AS IT RELATES TO SCHEDULE PROPERTIES MENTIONED HEREUNDER SHOWN AS SCHEDULE-B PROPERTY IN THE PLAINT IN O.S.NO.325/2023 IN ANNEXURE-C AND CONSEQUENTLY QUASH THE PROCEEDINGS INITIATED IN THE SAID SUIT BY FILING I.A.NO.2 UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE VIDE ANNEXURE-E AND CONSEQUENTLY QUASH THE ORDER MADE ON I.A.NO.2 (APPLICATION UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE) DATED 27.04.2024 IN O.S.NO.325/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE VIDE ANNEXURE-G AND GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard Sri P.D.Surana, learned counsel for petitioner and Sri P.P.Hegde, learned Senior Counsel appearing on behalf of Sri N.Vivekanada for respondents.

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These two petitions are taken up for consideration and disposal with the consent of learned counsels for parties.

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Parties to the petitions shall be referred to as per their status before the trial Court.

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The petitioners in these petitions are the defendant and defendant No.1 in O.S.Nos.138/2023 and 325/2023 respectively. The suits have been filed by two different plaintiffs seeking relief of specific performance of

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the sale agreement or in the alternative, refund of the sale consideration amount.

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HC-KAR

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During the pendency of the said proceedings, the plaintiffs have filed IA.No.2 under Order XXXIX Rules 1 and 2 of CPC for grant of an ad interim order of temporary injunction in both the suits. The said application came to be allowed by the trial Court and thereafter, an ad interim ex parte order of temporary injunction was granted by restraining the defendants from alienating the suit schedule "D" and "B" properties respectively.

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Thereafter, the petitioners appeared before the trial Court and contested the matter, and after the contest, the application was allowed and a similar order was passed restraining the defendants from alienating the suit schedule "D" and "B" properties.

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Aggrieved by the same, the defendant in O.S.No.138/2023 and defendant No.1 in O.S.No.325/2023

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have preferred two appeals in MA.Nos.14/2024 and 13/2024 respectively before the Principal District and Sessions Judge, Davanagere to set aside the order passed

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HC-KAR

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on the application filed under Order XXXIX Rules 1 and 2 of CPC by the trial Court. The Appellate Court granted an interim order staying the operation of the order dated 27.04.2024 passed by the trial Court.

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On appearance before the Appellate Court by the petitioners in both appeals, the order of the trial Court

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came to be modified by restraining the defendants from alienating the respective suit schedule properties

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mentioned hereinabove.

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The plaintiffs in both the suits filed two separate writ petitions challenging the order of II Additional District and Sessions Judge, Davanagere in miscellaneous appeals in M.A.Nos.14/2024 and 13/2024 on the ground that the Co-ordinate Bench of this Court has already decided that the Appellate Court does not have jurisdiction to appreciate or deal with the proceedings on the challenge made under Order XXXIX Rules 1 and 2 of CPC. Therefore, this is not the appropriate Court to deal with such orders

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HC-KAR

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and the defendants would have to approach the appropriate forum to challenge such an order on the ground of jurisdiction.

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Aggrieved by the order passed by the Appellate Court, the plaintiffs have preferred two petitions in WP.Nos.22885/2025 and 22891/2025, which are pending before this Court. However, this Court granted stay of the proceedings on 30.07.2025 in the said writ petitions.

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This being the state of affairs, the defendants in both the suits have approached this Court by filing two other writ petitions seeking following relief:-

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In WP.No.25528/2025

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" WHEREFORE , it is humbly prayed that this Hon'ble Court be pleased to issue a Writ in the nature of Certiorari to quash the proceedings in O.S.No.138/2023 on the file of the learned 1^st Additional Senior Civil Judge & JMFC, Davangere in so far as it relates to schedule properties mentioned hereunder shown as Schedule-D properties in the plaint in O.S.No.138/2023 in ANNEXURE-B and consequently quash the proceedings initiated in the

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said suit by filing I.A.No.2 under Order 39 Rule 1 and 2 of the code of civil procedure vide ANNEXURE-D and consequently quash the order made on I.A No.2 (application under Order 39 Rule 1 and 2 of the code of civil procedure) dated:27.04.2024 in O.S.No.138/2023 on the file of the learned 1^st Additional Senior Civil Judge & JMFC, Davangere vide ANNEXURE-F and grant such other relief or relief as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice."

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In WP.No.25438/2025

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" WHEREFORE , it is humbly prayed that this Hon'ble Court be pleased to issue a Writ in the nature of Certiorari to quash the proceedings in O.S.No.325/2023 on the file of the learned 1^st Additional Senior Civil Judge & JMFC, Davangere in so far as it relates to schedule properties mentioned hereunder shown as Schedule-B properties in the plaint in O.S.No.138/2023 in ANNEXURE-C and consequently quash the proceedings initiated in the said suit by filing I.A.No.2 under Order 39 Rule 1 and 2 of the code of civil procedure vide ANNEXURE-E and consequently quash the order made on I.A No.2 (application under Order 39 Rule 1 and 2 of the code of civil procedure) dated:-

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HC-KAR

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27.04.2024 in O.S.No.325/2023 on the file of the learned 1^st Additional Senior Civil Judge & JMFC, Davangere vide ANNEXURE-G and grant such other relief or relief as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice."

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It is apparently seen that the prayers made by the petitioners in the above petitions is to quash the proceedings in O.S.Nos.138/2023 and 325/2023 on the file of I Additional Senior Civil Judge and JMFC, Davanagere, so far as it relates to the suit schedule "D" property in the first petition and suit schedule "B" property in the second petition.

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Sri P.D.Surana, learned counsel for petitioners vociferously submits the plaintiffs did not have any liberty to include the suit schedule "D" and "B" properties, as the said schedule properties were not the subject matter of the agreement of sale entered into by the defendants with the plaintiffs, so also, it is not the case of the plaintiffs that these schedule properties were part of the agreement of

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sale in question or sought to be enforced in the agreement

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of sale in the suit for specific performance.

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Learned counsel for petitioners also contended that the respondent is abusing the process of law only with an intention to damage the properties of the petitioners, which is not the subject matter in the agreement of sale and is deliberately included, which requires to be quashed so far as it relates to the suit schedule "D" and "B" properties.

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Per contra , Sri P.P.Hegde, learned Senior Counsel for respondents vehemently contended that these petitions filed by the petitioners are not maintainable in law, so also, the subject matter of the appeals, which is filed by the petitioners before the Appellate Court, is questioned in a separate writ petition, as there was no jurisdiction for

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the Appellate Court to deal with the matter and it is not the Competent Court to deal with the same.

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HC-KAR

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Learned Senior Counsel further contended that along with the suit for relief of specific performance, the petitioners have also sought an alternative relief of recovery of the amount and attachment of the property, hence, they included the suit schedule "D" and "B" properties.

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The reliance placed by the petitioners with regard to filing of miscellaneous appeal in the respective Courts is based on the judgment of the Co-ordinate judgment of this Court, which is prospective. Therefore, it will not apply to invoke or bring to the forum of the District Judge to deal with the application under Order XXXIX Rules 1 and 2 of CPC.

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Learned counsel also relies upon the judgments of other Courts to contend that this Court need not entertain the petitions filed under Articles 226 and 227 of the Constitution of India or issue a writ of certiorari to quash the orders in original suit proceedings.

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HC-KAR

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After hearing the arguments of both parties for some time, it is submitted by Sri P.D.Surana, learned counsel for petitioners that he may be given liberty to agitate and approach the trial Court by filing necessary application with regard to deletion of the suit schedule "D" and "B" properties from the respective suits or for rejection or any other remedy that is available in law to be invoked before the trial Court and the trial Court may deal with the same without being influenced by the orders passed on the application under Order XXXIX Rules 1 and 2 of CPC and the order passed in both the miscellaneous appeals. Whereas, Sri P.P.Hegde, learned Senior Counsel for respondents objects to any liberty being granted by this Court, which would favour the petitioners.

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Be that as it may, these petitions filed by the petitioners would have to be disposed of, as this Court does not find any need or necessity to entertain such petitions to quash the original suit proceedings. However, liberty in law is nevertheless available to the petitioners to

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HC-KAR

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invoke appropriate proceedings by way of appropriate application to seek appropriate remedies before the trial Court and the Appellate Court if required and if so advised. The trial Court shall deal with the same without being influenced by the earlier order, if it is not going affect the rights of plaintiffs in any manner whatsoever.

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Under the circumstances, these two petitions would have to be disposed of. Nevertheless, it is needless to mention that the respondents herein, who are the plaintiffs in two respective suits, are at liberty to defend the said application if any filed before the trial Court or any other Court in the manner known to law and all such opportunity shall be provided to both parties.

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Accordingly, I pass the following:

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ORDER

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i. These petitions are disposed of ;

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ii. Liberty is reserved to the petitionersdefendants in both the cases to file any

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HC-KAR

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applications before the trial Court for the relief

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of either deletion of the suit schedule "D" and "B" properties or for rejection of plaint or any other relief if so advised before the trial Court;

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iii. The respondents-plaintiffs would be at liberty to defend the same in accordance with law.

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iv. The trial Court shall deal with the matter without being influenced by the earlier orders passed under Order XXXIX Rules 1 and 2 of CPC, so also by the Appellate Court orders, if it is not going effect the rights of plaintiffs in any manner whatsoever;

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CPN/List No.: 1 Sl No.: 5

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Sd/(PRADEEP SINGH YERUR) JUDGE

Sri T Basappa v. Sri v a Shriharsha

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Sri T Basappa v. Sri v a Shriharsha

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