IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED TI-Hs THE 15TH DAY OF sEpTEMB_§:R-,C2_i¢_é _
BEFORE
THE HON'BLE MR. J'{}STI.CE .A.s. .;§6§>A§%raA' V
REGULAR SECOND APPEAL N9. 5313/'2¢o9";1g3:m,j':A
BETWEEN:
BASAVARAJ s/0
BASAPPA UDNUR,
AGE:39 YEARS,
OCCBUSINESS, -- V ;
R/AT GULEDGUDDA, --
TAL: BADAMI; --
D1sTR1cT:13.AGA§;1{:Q*r.Q$s% 1; . 1' V APPELLANT
(By Sri. S.B';}-§E~3-F3'BAL--L'IV ADVS.)
AND5; 'A C
1. SMTSUMITRA W/'Q '
MALLAPPA'vPATTAR, -~
AGE; 53 YEARS, '
;«:'=sCc_:}~IQUsE"i--:c>.I,_r3~ WORK,
_ 'R/OCBIJAPUR,
' "TAL;vBEJAPUR-586 101.
. 'sCRI.1RA'3s§N:A s/0
'---BHIM1'XNfNA PATTAR @
SANGAM,
AGE'; 43 YEARS,
L3' '
" 'QCC:BUSINESS,
= .._R.;'AT GULEDGUDDA,
$
';
TAL:BADAMI ,
DISTRICT:BAGALKOT~587203. RESPONDENTS
(BY SRI.B.M.ANGADI, ADV. FOR R1 82; R2)
THIS APPEAL IS FILED UNDER SEcTIoN;’_:i’0o’ _
AGAINST THE JUDGMENT 82; DECREE DATED 1.?/..2i/200.9
PASSED IN R.A.NO.14/2006 ON THE “CI\.?.IL”
JDUGE(SR.DN.),I3ADAIvII, ALL0wvING”THEe_A-PPEALRFILED
AGAINST THE JUDGMENT ANEi_”~’DECRE_E DATED
21/12/2005 PASSED IN O.S».N_O.19l0/A1998 0N”.ITHE”PII.E”oP’=_
THE CIVIL JUDGE(JR.DN.),E.ADAMI, DEcREEI1N’G’TH.E’SUIT-~.
FILED FOR PERMANENT INJUNGTIQN.
THIS APPEAL CO~MINCr ‘oN3..1Eo’R. ADIVIISSION THIS
DAY, THE COURT DELl'{“ERE–£) THE ‘PoI,LowING:
The 1. epepeIfieIri–_: “Ii.e:etm_ i–S 1li,Iie_ plaintiff in O.S. No.
190/1998,’ thlel’lf:S1Ilt»e.’l4irIIA_:ll’C;1.IeStion was filed Seeking for
judgment”eand.V “0iI:”;ll..”‘permanent injunction. The trial
Cofirtll by itSV.’jl.i«C’1:gl?l”1HC’flt and decree dtd. 21/12/2005 had
A de.oreevdS~uit in favour of the plaintiff. The 15* defendant
.jnla.d_qiiezdfionedlllthe judgment and decree of the trial Court in
Relgular: Iflpfoeal before the Civil Judge (Sr.Dn.) Badami in
V. ARi~;A’. No’). 14/ 2006. The Lower Appellate Court has reversed
C .ltlhe”l”1nding recorded bytbhe Trial Court and has dismissed
the suit by allowing the appeal. The plaintiff therefore is
before this Court, against the divergent judgment rendered
by the Court Below.
2. Heard the learned counsel for parties
the appeal papers.
:3. The case of the plaintiffbefoire lCo.urt”.is
that the plaintiff was the tenant of
schedule property, which is byhthe lit In a i it
suit between the same partie.s..iii:n..O:Sg. No.”’24_/19.598, which
has been filed by the pri:=sents_pilainitifffseeking for injunction
against the .lSi’idefensdarit’landlord against interference, the
parties entered’ compromise. In that View even
tho_iighn.as per’-the original lease agreement the plaintiff was
‘to_iva_ciaite year 2000 he had agreed to vacate at the
._earlier* time in the year 1998 and consequent
agieeeineintwas that in the event of 13* defendant were to sell
the property, the same would be offered at the first instance
the plaintiff and accordingly the plaintiff vacated the
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95
premises. Subsequently the plaintiff has contended that
since he had noticed an advertisement in the newspaper
with regard to the sale property he had approached thetrial
Court in the present suit to injunct the IS’ defenidatri’tii”~rio’nji
seiiing the property to any other person and that V’
the injunction was sought. ‘f’hejdefe’ndant before_thie:i«’tria1
Court had disputed the case putforth the >1.I’)i=.”.-!._ib1″1″E.1:1′.f. ” ,1}:
iight of the rival contentionsv,..jthe triai…Cou_r_t uhadmframedd
three issues for its consideration} The piain-tiff examined
himself as P.W.1 and niar?g:ed’Latt–.Exs.P~1 to 5 and
witness was a1sov.._exa;_rnined; asi’~F’.W.2.”;« The 1st defendant
examined iherseif D.W.I.’1 and a witness was examined as
D.W.2.7.’I’h~e Ti’iai”Court._on.anaiysing the evidence has come
to a. COflC1tI’SiCY1′.that.”.thé: injunction as sought for is to be
As again’s’t”the finding rendered by the Triai Court
“when. “defendant was before the Lower Appeilate
Court, the Appeiiate Court apart from reappreciating
the evidence has come to the conclusion that even in the
A nature of the understanding in 0.8. No. 24/1998 a copy of
i
“3
‘which was marked as Ex.P–3, the suit in the present nature
would not be maintainable since the plaintiff Wouldto
seek appropriate remedy in accordance with :,¢h_e
instant case no such declaration hasbeen sought; .
4. The learned counsel ‘for appellant hoewie-izere_Vsou_ghtl to *
assail the said finding of l(}1ourt and
contend that the ptlfié the Lower
Appellate Courtywith of the suit
itself would” of law for
consideratlion«::_i’_iinal.this learned counsel for
respondelnti’ said contention would
contend. that inlwppithe._iaets~evolving in the present case the
Lower Appiellaltew Court at the first instance has rendered a
fact withregard to the nature of right claimed and
sthete.feretitt’lvthet View has held that the prayer made in the
preisent_siuil§_ could not have been granted by the Trial court
and therefore the judgment is perfectly justified.
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5. In the light of the facts noticed above and the
contentions urged by the learned counsel, the fact relating to
the earlier suit in ().S. No. 24/1998 ending in the nature of
the Order passed as marked as Ex.P–3 is
However, what requires to be noticed is that even_hin”th’ath”~
background as to whether the suit’–pres–entl§:”fil’edV the 9
plaintiff in o.s. No. 190/ 1998 hadto “conisir1le1′.e_d
to enforce the alleged right of -pre.–_emp.tion wuhi-ch”€=1rlieri’suit. in order to
consider this aspect ofithte the plaint filed
in O.S. No. 190/ vindicate”. théttieven though the
plainztiffmhiadtjl’nari:ated:Zthe vwith regard to the earlier
manner ended in O.S. No. 24/ 1998 the
ultimate cause of .Iacti.on'” iivhich has been pleaded in the suit
is-ithatfthe A13′ defendant in the suit is likely to put the 2’25
in possession pursuant to a lease. It is in that
the made in the suit for injunction would have to
be considered in the present suit. Therefore, if this is
9′ .no’t’iced the suit as framed was not rnaintainable and to the
al
”v
said extent the Lower Appellate Court in any event was
justified in coming to a conclusion with regard_i:’toi’~t.the
maintainability of the suit. All that requires
is that even at this stage if the plaintiff ccnte:n_d,s”‘t.hat the
pre–emption right is to be enforcedipand’ if:’itiis_iope’n t’o:”h._iIiE;1Vtin
accordance with law and if such proceedings =airei..’in.itiated the V *
findings rendered in the present rela’ting to that aspect
of the matter would andiall questions
would remain open for,.con.sid._edratio”np!’~.Ci1t;–l’l’that view of the
matter the ‘lafivas the appellant in
my View etonsideration since ultimately
the facts in unnoticed and a finding
has been rendered by ;’§ppe’ilate Court.
6. Accordinglyiltim appeal being devoid of merit, stands
disposed. of) order as to costs. Accordingly, Misc. Civil
1o41’i”2t.J/20-oh;ee[is.§”1ii;7/2009 and 106529/2009 also stand
vdisposed of–;..__ ‘ it Sd/5″
REESE
7.. Hum I ct: Krriri?’