R.DEVDAS J., (ORAL):

The application in I.A NO.1/2019 is filed under Order

22 Rule 3 R/w. 151 of CPC, at the hands of the legal

representatives of the sole deceased petitioner/ plaintiff,

to come on record as legal representatives of the writ

petitioner, who passed away during the course of these

proceedings, on 26.09.2019.

This application is sought to be objected at the

hands of the respondent No.3/ defendant No.3/ purchaser

from respondents No.1 and 2. It is contended by the

leaned counsel for respondent No.3 that since the original

suit was filed seeking a decree restraining the defendants,

their agents/ servants/ henchman or anybody preventing

them

permanently

from

obstructing

the

peaceful

possession and enjoyment of the suit property, the same

being a suit for bare injunction, the right to sue does not

survive on the legal representatives of the plaintiff. In

- 3 -

support of her contention, learned counsel for respondent

No.3 has sought to place reliance on a latest decision of a

Coordinate Bench in the case of Smt. Parvati W/o.

Maruti Khatavakar V/s. Sri. Subana and Others in

RSA NO.100770/2014 dated 13.12.2021 wherein it was

held;

“The suit giving raise to this appeal was

filed for injunction simpliciter. It is unnecessary

to

the

pleadings in detail. Applying the

principles of the Latin maxim “actio personalis

moritur cum persona” injunction is a personal

remedy against a person, in particular, against

the defendant. Therefore, the very prayer itself

makes it clear that it is a restriction against

that person (defendant) or his agents or his

men or anybody claiming under him or through

him.

This is the usual format in an injunction

suit. Once a man dies, the cause of action dies

with him and does not pass on to the legal

representative…..”

Further in the case of Smt. Usha Gopal

Gowda

V/s.

Sri.

M.

T.

Tharanath

in

WP

No.15445/2015 dated 12.10.2018 it was similarly held;

“12. As noticed above, no cause of action

is alleged against the legal representative of

the defendant and cause of action alleged in

- 4 -

the plaint against the sole defendant against

whom the injunction was sought. The Trail

Court misdirected itself while considering the

application filed under Order 22 Rule 4 of CPC

and proceeded to allow the application, as if

the injunction is sought against the suit

schedule property. Hence, the trial Court fell

into error in allowing the application filed under

Order 22 Rule 4 of CPC.”

4.

Learned counsel for respondent No.3 further

submits that the original plaintiff Sri. Mallappa @

Malleshappa Fakkirappa Goudappanavar could not have

filed the suit seeking bare injunction as admittedly he had

initially filed OS No.51/1997 against the original owners of

the land namely Sri. Channaveerappa Rudrappa Anad

seeking decree of specific performance. The said suit was

decreed partly, only to the extent of directing refund of

the earnest money with interest at the rate of 6% per

annum. The original plaintiff filed RA No.111/2003 and the

First Appellate Court confirmed the judgment and decree

passed by the Trial Court. Not being satisfied the original

- 5 -

plaintiff filed RSA NO.1186/2008 which is pending

consideration before this Court. When the said Regular

Second Appeal is pending before this Court, instead of

filing an application to implead respondent No.3 herein

who is a subsequent purchaser at the hands of the owners

of the land, and seeking an order of Temporary injunction

against the respondent No.3, the original plaintiff filed

another suit in OS No.467/2009. Respondent No.3

purchased the suit scheduled property under a registered

sale deed on 20.02.2009. It is therefore sought to be

contended that the second suit in OS No.467/2009 is hit

by Order 2 Rule 2 of CPC.

5.

Per contra learned counsel for petitioner/

applicants would contend that similar objections were

raised at the hands of respondent No.3 herein and in fact

two applications under Order 7 Rule 11(d) and another

under Order 7 Rule 11(a) of CP