NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No. 2013  OF 2019 (Arising out of S.L.P.(C) No.23249 of 2018)

Shri Revansiddeshwar Pattan Sahakari Bank Niyamit ….Appellant(s)

VERSUS

Taluka Tokrekoli (Ambiga Samaji C Vikas Sangh Indi) (Earlier Gangamath Sangha) & Anr.      ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. This  appeal is filed  against the final judgment

and order dated 28.06.2018 passed by the High Court

of Karnataka at Kalaburagi in Writ Petition No.203932

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of 2015 whereby the High Court partly allowed the writ

petition filed by respondent No.1 herein.  

3. A few facts need mention infra for the disposal of

this appeal, which involves a short question.

4. The appellant is defendant No. 2, respondent No.

1 is the plaintiff and respondent No. 2 is defendant No.

1 in O.S. No.445/2013 before the Court of Civil Judge,

Indi at Indi.

5. Respondent  No.  1  has filed  a  civil suit  against

respondent No. 2­Deputy Commissioner, Bijapur

(defendant No. 1) and the appellant (defendant No. 2).

The suit is for a declaration and injunction in relation

to the suit land as detailed in the plaint.  

6. In this suit, the plaintiff (respondent No. 1 herein)

as well as defendant No. 2 (appellant herein) both filed

an application for grant of injunction against each

other under Order 39 Rules 1 and 2 read with Section

151 of the Code of Civil Procedure, 1908 being IA No.1

and IA No.2 respectively.

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7. The Trial  Court  by order  10.03.2014 dismissed

both the applications. Defendant No. 2 (appellant

herein) felt aggrieved by the dismissal of his

application (IA No.2) filed Misc. Appeal No. 7/2014 in

the Court of Senior Civil Judge & JMFC, Indi. By order

dated 16.07.2015 (Annexure P­9), the appellate Court

allowed the appeal and granted injunction which reads

as under:  

“The appeal filed by the defendant No.2/appellant is allowed.

The orders  passed by the Trial  Court,  Civil Judge & JMFC, Indi on I.A.No.2 filed by defendant No.2/appellant under Order 39 Rules 1 and 2 of CPC in O.S.  No.445/2013 dated 10.3.2014 is hereby set aside.

The plaintiff/respondent No.1 is hereby restrained from  causing obstruction to the defendant No.2/appellant in making constructing over the property as prayed in the  application I.A.No.2 till the  disposal  of suit.

No order as to costs.”

8. The plaintiff (respondent No. 1) felt aggrieved and

filed W.P. No.203932/2015 in the High Court of

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Karnataka, Kalaburagi and questioned its legality and

correctness. By impugned order, the Single Judge of

the High Court partly allowed the writ petition filed by

the plaintiff (respondent No. 1). The High Court

confirmed the injunction granted to defendant No. 2 by

the Appellate Court and at the same time also granted

injunction in favour of the plaintiff and restrained

defendant No. 2 from interfering in plaintiff's

possession. The order reads as under:

“Therefore, the petition is partly allowed. The order dated 16.7.2015 passed by the appellate Court,  i.e.,  the Senior Civil  Judge and JMFC, Indi, in Miscellaneous Appeal No.07 of 2014 granting injunction to the defendants with respect to property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq. ft. situated at Indi is confirmed.   At the same time, the application filed by the plaintiff for injunction against the defendants with respect to property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi is allowed. The defendants are restrained from interfering in the peaceful possession of the plaintiff’s property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi.   The plaintiff is restrained from interfering in the

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defendants’ possession of property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq.ft. situated at Indi.”   

9. It is against this order of the High Court,

defendant No. 2 has felt aggrieved and filed this appeal

by way of special leave in this Court.

10. So, the short question, which arises for

consideration in this appeal, is whether the High Court

was justified in allowing the plaintiff's writ petition in

part.

11.   Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal and while setting aside the

impugned order remand the case to the High Court for

hearing the  writ petition afresh in accordance  with

law.

12. The need to remand the case to the High Court

has  occasioned for the reason  that firstly, the  High

Court did not assign any reasons for allowing the writ

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petition and secondly, the High Court seemed to have

passed somewhat inconsistent order.  

13. It is clear from the fact that the High Court

allowed the injunction application made by both the

parties against each other though the writ petition was

filed by the plaintiff against the appellate order, which

was passed only on the injunction application filed by

defendant No. 2 ( IA No.2) in their favour.  

14. In other words, the only question before the High

Court was whether the Appellate Court was justified in

allowing the defendant No.2's appeal and in

consequence was justified in allowing his (defendant’s)

injunction application (I.A.No.2) made against the

plaintiff seeking injunction in relation to the suit

property.  

15. The reason was that it was not in dispute that

the plaintiff did not challenge before the Appellate

Court that part of the order of the Trial Court by which

his injunction application was dismissed.

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16. In this view of the  matter  when the plaintiff's

injunction application stood dismissed by the Trial

Court and the same was not carried in appeal at his

instance, the same could not have been revived by the

High Court in a writ petition filed by the plaintiff.

17.   We are, therefore, unable to agree with the view

taken by  the  High Court  as the High Court  neither

examined the facts of the case properly nor the legal

questions arising in the case, therefore such order is

legally unsustainable.

18. The appeal is accordingly allowed. The impugned

order is set aside. The case is remanded to the High

Court for deciding the writ petition afresh on its merits

in accordance with law.         

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                        

    …...……..................................J.              [DINESH MAHESHWARI]

New Delhi; February 25, 2019

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