Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2022 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.23760 OF 2021 (GM-CPC)
BETWEEN:
SHIVARUDRAIAH AGED ABOUT 80 YEARS S/O LATE BYRANNA R/AT SY. No. 64/4 KADABAGERE VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK BENGALURU - 562130. ...PETITIONER (BY SRI. C M NAGABUSHANA, ADVOCATE)
AND:
1 . SMT. CHANDRAMMA W/O LATE NEELAKANATAIAH AGED ABOUT 62 YEARS
2 . DAYANANDA MURTHY S/O LATE NEELAKANATAIAH AGED ABOUT 45 YEARS
3 . SMT. PUSHPALATHA AGED ABOUT 38 YEARS D/O LATE NEELAKANTAIAH
RESPONDENTS 1 TO 3 ARE RESIDING AT KADABAGERE VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU - 562 130.
4 . K. M. MASTHI KARI GOWDA AGED ABOUT 42 YEARS S/O SRI. MASTHI GOWDA R/AT No. 40, 4TH CROSS, 1ST MAIN NAGARAHOLE NAGARA, HEROHALLI DAKALE VISHWANEEDAM POST BENGALURU - 560091. ….RESPONDENTS
(BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE FOR C/R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 18.11.2021 VIDE ANNX-F PASSED IN R.A.NO.101/2021, ON I.A. V BY THE LEARNED VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND THEREBY ALLOW THE APPLICATION IN I.A.NO.V FILED BY THE PETITIONER IN R.A.NO.101/2021, ON I.A.V ON THE FILE OF LEARNED VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, THEREBY DISMISS THE APPEAL FILED BY THE RESPONDENTS IN R.A.NO.101/2021, ON THE FILE OF LEARNED VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.01.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
3 O R D E R
The petitioner aggrieved by the order dated 18.11.2021 passed on I.A.V in R.A.No.101/2021 by the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru has filed this writ petition.
Brief facts leading rise to filing of this petition are as under: Petitioner filed a suit in O.S.No.592/2014 for the relief of declaration and injunction against the husband of respondent No.1 and father of respondents No.2 and 3, Sri Neelakantaiah. The Trial Court partly decreed the suit and granted a decree for permanent injunction and dismissed the suit in respect of the relief of declaration of ownership vide judgment and decree dated 2.4.2016.
4 2.1. The petitioner, being aggrieved by the dismissal of the suit insofar as the relief of declaration of ownership, filed appeal in R.A.No.140/2019 on the file of VI Additional District and Sessions Judge, Bengaluru Rural. The Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court insofar as the relief of declaration. The respondents, being aggrieved by the judgment granting a decree for permanent injunction by the Trial Court in the aforesaid suit, filed appeal in R.A.No.101/2021. 2.2. In the said appeal, the petitioner herein filed I.A.V to dismiss the appeal on the ground that the judgment passed by the Trial Court is merged into the judgment and decree passed in R.A.No.140/2019. In support of the application, the petitioner filed an affidavit admitting about filing of the suit in O.S.No.592/2014 and the same was partly decreed.
5 2.3. It is contended by the petitioner that the petitioner preferred an appeal against the judgment and decree passed by the Trial Court. The Appellate Court dismissed the appeal filed by the petitioner. The respondents preferred appeal in R.A.No.101/2021 against granting permanent injunction and it is contended that the appeal filed by the respondents is not maintainable in view of the merger of the decree passed by the Trial Court in R.A.No.140/2019. Hence, prayed to allow the application.
2.4. The said application is opposed by the respondents by filing statement of objections. It is contended that the Trial Court has not decreed the suit in its entirety. The Trial Court dismissed the suit insofar as the relief of declaration is concerned and insofar as permanent injunction is concerned, suit is decreed. The petitioner challenged only the portion of
6 the judgment and decree insofar as dismissal of the suit for the relief of declaration and the same is confirmed by the Appellate Court in R.A.No.140/2019. It is further contended that insofar as permanent injunction granted by the Trial Court is concerned, the respondents have filed appeal in R.A.No.101/2020 and it is further contended that the question of merger does not arise for consideration. Hence, prayed to reject I.A.V filed by the petitioner. The Trial Court after hearing the parties, rejected the application. Hence, the writ petition.
Heard learned counsel for petitioner and learned counsel for respondents.
Learned counsel for the petitioner submits that the judgment and decree passed by the Trial Court merges into the judgment and decree passed by the Appellate Court in R.A.No.140/2019. He further
7 submits that the appeal filed by the respondents is not maintainable as they have no right to challenge the same in another appeal. He further submits that the Trial Court committed an error in rejecting the application filed by the petitioner. In order to buttress his argument, he has placed reliance on the following citations : 1. M/S Kothari Industrial Corporation Ltd., V. The Agricultural Income Tax Officer (ILR 1998 KAR 1510);
Kunhaymmeh and Others V. State of Kerala and another (AIR 2000 Supreme Court 2587);
Surinder Pal Soni V. Sohan Lal (Dead) Through Legal Representatives (2020) 15 Supreme Court 771
8 Hence on these grounds he prays to allow the writ petition.
Per contra, learned counsel for the respondents submits that the petitioner filed the suit for declaration and permanent injunction. The Trial Court granted a decree for permanent injunction and refused to grant the relief of declaration. He further submits that the petitioner aggrieved by the portion of the judgment refusing to grant the relief of declaration filed appeal in R.A.No.140/2019. The said appeal came to be dismissed vide judgment and decree dated 9.3.2020. He further submits that the appeal filed by the respondents i.e. R.A.No.101/2021 is maintainable. He further submits that the subject matter of R.A.No.140/2019 is only in respect of declaration and not in respect of the relief of permanent injunction. He further submits that the judgment and decree
9 passed in the suit does not merge into the judgment and decree passed in R.A.No.140/2019. He further submits that the Trial Court is justified is rejecting the application-I.A.V filed by the petitioner. Hence, on these grounds he prays to dismiss the writ petition.
Perused the records and considered the submissions made by learned counsel for the parties.
The petitioner filed a suit for declaration and injunction. The Trial Court decreed the suit of the petitioner in part and granted the decree for permanent injunction and dismissed the suit insofar as the relief of declaration is concerned. The petitioner filed appeal in respect of dismissing the suit for the relief of declaration in R.A.No.140/2019. The Appellate Court dismissed the appeal filed by the petitioner. It is submitted that the petitioner being aggrieved by the judgment and decree passed in R.A.No.140/2019,
10 preferred second appeal before this Court which is pending for consideration. The Appellate Court while disposing of the appeal in R.A.No.140/2009 has made a stray observation that "on the basis of material available on record, the possession of the suit schedule property by the plaintiff can be considered as evidence by the appellant remains unchallenged. The Trial Court has given proper reasons which does not require interference."
The judgment and decree passed in R.A.No.140/2019 has not attained finality. The legal representatives of the original defendant have preferred appeal in R.A.No.101/2021 challenging decree for permanent injunction and filed application seeking leave of the Court to prefer and prosecute the appeal. Respondent No.4 has also filed an application I.A.3 seeking leave of the Court to prefer and
11 prosecute the appeal along with respondent Nos.1 to 3.
From the perusal of the judgment passed in R.A.140/2019, the Trial Court has considered insofar as the relief of declaration is concerned, but portion of the decree for permanent injunction was left intact and untouched in R.A.No.140/2019.
There is no merger of the part of the decree of the Trial Court granting relief of permanent injunction for the simple reason that there was no challenge to part of the decree of the Trial Court by the petitioner in so far as permanent injunction.
The learned counsel for the petitioner has placed reliance on the citations cited supra. On perusal of the aforesaid citations, it is seen that there is no legal dispute in regard to the law laid by this
12 Court and as well as the Hon'ble Supreme Court in regard to the doctrine of merger. The decisions cited by the learned counsel for the petitioner is not applicable to the present case in hand. In the judgments cited by the learned counsel for the petitioner, the suit was disposed of in its entirety and the judgment and decree passed by the Trial Court merges with the superior Court. However, in the present case, as observed above, the suit of the petitioner was partly decreed wherein the suit insofar as the relief of declaration is concerned had been dismissed. The judgment and decree passed in R.A.No.140/2019 pertains to dismissing the appeal insofar as the relief of declaration and not insofar as the relief of injunction. The Trial Court after considering the entire material on record is justified in passing the impugned order.
13 12. In view of the aforesaid discussion, I do not find any grounds to interfere with the impugned order. Accordingly, I proceed to pass the following order :
The writ petition is dismissed.
SD/- JUDGE