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2023 Supreme(Online)(KAR) 4793
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MFA No. 103179 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 103179 OF 2022 (CPC-)
BETWEEN:
1. SHRI ABDULKARIM APPASAHEB KHAIRADI
AGE. 53 YEARS,
OCC.AGRICULTURE AND BUSINESS,
R/O.MOMIN GALLI, GURUWARPETH,
GOKAK-591307,
DIST.BELAGAVI
AND ANOTHERS
2. SHRI MOHAMMAD YUSUF ABDULKARIM
KHAIRADI,
AGE. 22 YEARS,
OCC.AGRICULTURE,
R/O.MOMIN GALLI, GURUWARPETH,
GOKAK-591307,
DIST.BELAGAVI
AND ANOTHERS
… APPELLANTS
(BY SRI. G.B. NAIK and
SMT. P.G.NAIK, ADVOCATE)
AND:
1.
SHRI SRINIVAS
S/O NINGAPPADEVARADDI,
AGE: 38 YEARS;
OCC: BUSINESS/AGRICULTURE;
R/O 548/A GANGARADDI ONI,
YARAGATTI-591129,
TA: SAUNDATTI,
DIST: BELAGAVI.
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MFA No. 103179 of 2022
2.
SMT. YAMANAVVA W/O BASANGOUDA PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O BADDANUR-587122,
TAL: MUDHOL, DIST: BAGALKOT.
3.
SHRI NINGAPPARAMAPPADEVARADDI,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O YARAGATTI-591129,
TQ: SAUDATTI, DIST. BELAGAVI.
4.
SHRI SHANKARAPPARAMAPPADEVARADDI,
AGE: 70 YEARS, OCC; AGRICULTURE,
R/O VAJRAMATTI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
5.
SHRI PANDAPPARAMAPPADEVARADDI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O YARAGATTI-591129,
TQ: SAUDATTI, DIST: BELAGAVI.
6.
SMT. GODAVVA W/O REVAPPASADALGI
AGE: 70 YEARS, OCC: HOUSEHOLD
R/O YARAGATTI-591129,
TQ: SAUDATTI, DIST: BELAGAVI.
7.
SHRI. ANWAR S/O MAHAMMAD ALI NADAF,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O MUDALAGI-591312,
TQ: GOKAK, DIST: BELAGAVI.
8.
SHRI. KASIMSAB
S/O MOHAMMAD ALI NADAF,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O YARAGATTI-591129,
TQ: SAUDATTI, DIST: BELAGAVI.
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MFA No. 103179 of 2022
9.
SHRI. NABISAB S/O MOHAMMAD ALI NADAF
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: MUDALAGI-591312,
TQ: GOKAK, DIST: BELAGAVI.
10. SHRI LAXMAPPA S/O BASAPPASHIVANNAVAR
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O SOPPADLA-591129,
TQ: SAUDATTI, DIST: BELAGAVI
SMT. YALLAVVA
W/O BHARAMAPPASHIVANNAVAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O SOPPADLA-591129,
TQ: SAUDATTI, DIST: BELAGAVI
(DECEAED)
11. SHRI VITTAL S/O BHARAMAPPASHIVANNAVAR,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O SOPPADLA-591129,
TQ: SAUDATTI, DIST: BELAGAVI
12. SHRI MAHANTESH
S/O RAMAPPASHIVANNAVAR,
AGE: 34 YEARS, OCC: SERVICE IN KEB OFFICE,
R/O KEB OFFICE, GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
13. SHRI MALLIKARJUN
S/O RAMAPPASHIVANNAVAR
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O MAHANTESH NAGAR,
NEAR KALAMA TEMPLE,
YARAGATTI-591129,
TQ. SAUDATTI, DIST. BELAGAVI
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MFA No. 103179 of 2022
14. SHRI BASAPPARAMAPPASHIVANNAVAR
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O BEHIND BEERADEVAR TEMPLE,
SOPPADLA-591129,
TQ: SAUDATTI, DIST: BELAGAVI.
15. SHRI. MOHAN S/O RAMAPPASHIVANNAVAR
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O MAHANTESH NAGAR,
NEAR KALAMA TEMPLE,
YARAGATTI-591129,
TQ: SAUNDATTI, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI MADHUKESHWAR A. DESHPANDE, ADV. FOR R1
R2 TO R10 & R12 NOTICE SERVED
R11 & R13, R14, R15 NOTICE HELD SUFFICIENT)
MFA FILED U/O.43 RULE 1(r) OF THE CODE OF CIVIL
PROCEDURE,
1908,
AGAINST
THE
DATED
17.02.2022 PASSED IN F.D.P. NO. 12/2021 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE, SAUNDATTI,
PARTLY ALLOWING THE IA NO.II FILED U/O. 39 RULE 1
AND 2 R/W SEC.151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Challenging impugned order dated 17.02.2022
passed by Principal Senior Civil Judge, Saundatti,
in FDP no.12/2021 on IA no.II filed under Order 39
Rule 1 and 2 of Code of Civil Procedure, this
appeal is filed.
Appellants herein were respondents no.16
and 17 (proposed) while respondent no.1 herein
was petitioner in FDP no.12/2021 and respondent
nos.2 to 15 were other respondents.
FDP no.12/2021 was filed for drawing
final decree in terms of compromise decree dated
22.02.2019
drawn
in
RFA
no.4145/2013
and
4169/2013. In said FDP, IA no.II was filed under
order 39 Rule 1 and 2 of CPC for temporary
injunction against proposed respondents no.16 and
17 from changing nature of suit property or
creating charge over suit property during pendency
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of proceedings. IA no.III was filed for impleading
respondents no.16 and 17 as parties to petition.
On said application, respondents no.16 and 17
remained ex-parte. Though objections were filed
by respondent no.5, final decree Court rejected his
objection as injunction was sought only against
proposed respondents no.16 and 17 and Court
proceeded
to
allow
IA
no.II
restraining
respondents no.16 and 17 from changing nature of
suit property or creating charge over suit property.
Assailing said order, this appeal is filed.
Smt.
P.G.Naik,
learned
counsel
for
respondents
no.16
and
17
submitted
that
respondents no.16 and 17 were not served with
notice on IA no.III filed for their impleading. Even
otherwise, without passing any order on IA no.III,
cause title in FDP no.12/2021 came to be amended
showing appellants herein as respondents no.16
and 17. Thereafter, IA no.II was considered by
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treating respondents no.16 and 17 as ex-parte.
Therefore,
at
outset,
it
was
submitted
that
impugned order suffers from violation of principles
of natural justice. It also submitted that two
prayers were sought in application. Without proper
consideration both reliefs are granted which was
contrary to law. It was also submitted that
without recording necessary findings regarding
points framed separately, only on ground that
petitioner would suffer irreparable loss and injury
and balance of convenience lie in his favour,
impugned order came to be passed which was
unsustainable.
On
above
grounds,
learned
counsel
sought for allowing appeal.
On
other
hand,
Sri
Madhukeshwar
Deshpande,
learned
counsel
appearing
for
respondent
no.1-petitioner
submitted
that
contention
regarding
denial
of
opportunity
to
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petitioner would not be sustainable as appellants
herein had in fact filed objections to main petition.
It was further submitted that final decree Court
had permitted petitioner to amend cause title.
Therefore, IA no.3 was deemed allowed. Insofar
as observation of trial Court on point nos.1 to 3, it
was submitted that trial Court examined rival
contentions and facts and circumstances of case
and passed impugned order and same did not call
for interference as powers of Appellate Court was
extremely limited. On above grounds, sought for
dismissal of appeal.
Other
respondents
are
served
and
unrepresented. Heard learned counsel and perused
impugned order.
From above submission, only point that
arises for consideration is:
“Whether impugned order passed by
final decree Court on IA no.II filed
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under Order 39 Rule 1 and 2 call for
interference.?”
Insofar as two prayers being sought in
one application, learned counsel for petitioner
submitted that relief sought would be confined to
prayer insofar as changing nature of suit property
and sought liberty to file separate application
insofar as other prayer.
10. Insofar as next substantive contention
regarding failure of Final Decree Court in recording
finding regarding prima fac
