IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 21 S T DAY OF APRIL 2016

BEFORE

THE HON’BLE MR.JUSTICE B.S.PATIL

WRIT PETITION No.113885 of 2015 [GM-CPC]

BETWEEN:

1. SMT. THIPPAVVA @ HEMAKSHI W/O IRAPPA NEELUGALLA AGE: 38 YEARS, OCC:HOUSE WIFE R/O:B.N.JALIHALA, TQ: DIST:

2. SRI.SOMALINGAPPA S/O BASAPPA SUNKAD AGE:33 YEARS, OCC:AGRICULTURE R/O:NIMBALAGUNDI, TQ: DIST:BAGALKOT

3. SMT.BASAMMA @ NIRMALA W/O BASAVARAJ BASETTY AGE:31 YEARS, OCC:HOUSE WIFE R/O:KUNABENCHI, TQ:HUNAGUNDA DIST:BAGALKOT

4. SRI.IRANNA S/O BASAPPA SUNKAD AGE:24 YEARS, OCC:AGRL R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT

5. SRI.NAGARAJ S/O BASAPPA SUNKAD AGE:22 YEARS, OCC: AGRICULTURE, R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT ... PETITIONERS (By Sri. SRINAND A PACHHAPURE ADV.)

AND: : 2 :

1. SRI. SHEKAPPA S/O IRAPPA SUNKAD AGE:43 YEARS, OCC: AGRICULTURE, R/O:KALLIGUDDA, TQ:HUNAGUNDA DIST:BAGALKOT

2. SRI.SIDDAPPA S/O IRAPPA SUNKAD AGE:41 YEARS, OCC: AGRICULTURE, R/O:KALLIGUDDA, TQ:HUNAGUNDA DIST:BAGALKOT

3. SMT.NEELAGANGAVVA W/O BASAPPA SUNKAD AGE:63 YEARS, OCC:HOUSE WIFE R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT

4. SRI.SANGAPPA S/O BASAPPA SUNKAD AGE:41 YEARS, OCC: AGRICULTURE, R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT

5. SRI.SHEKAPPA S/O BASAPPA SUNKAD AGE:35 YEARS, OCC: AGRICULTURE, R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT

6. SRI.MAHANTESHA S/O BASAPPA SUNKAD AGE:37 YEARS, OCC: AGRICULTURE, R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT

7. SRI.SHIVANAND S/O BASAPPA SUNKAD AGE:33 YEARS, OCC: AGRICULTURE, R/O:NIMBALAGUNDI, TQ:HUNAGUNDA DIST:BAGALKOT ... RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF , PRAYING TO QUASH THE ORDER DATED 04.11.2015, PASSED BY ADDITIONAL CIVIL JUDGE AND JMFC HUNGUND ON IA.NO.2 IN OS.NO.62/2015 MARKED AT ANNEXURE-A AND CONSEQUENTLY ALLOW IA.NO.2 MARKED AT ANNEXURE-H. : 3 :

This Writ Petition coming on for Preliminary Hearing , this day the Court made the following:-

O R D E R

This Writ Petition is filed challenging the order dated 04 th November 2015 passed by the Court below rejecting IA No.II filed by defendants therein/writ petitioners, under Section 10 of the Code of Civil

Procedure, 1908 (for short ‘CPC’) seeking stay of further proceedings in O.S. No.62 of 2015.

2. Interim stay of the proceedings was sought by the present petitioners/defendants in O.S. No.62 of 2015 on the ground that petitioner No.4-Sri.Iranna had filed suit O.S. No.304 of 2012 against the plaintiffs in O.S. No.62 of 2015 seeking relief of declaration and permanent injunction in respect of the very suit property and therefore, the present suit

O.S. No.62 of 2015 being a subsequent suit filed in respect of the same subject matter, could not be parallelly proceeded with.

3. The trial court has rejected the application holding that pleadings in both the suits disclosed : 4 : that parties to both suits were not exactly the same and relief sought in the first suit O.S. No.304 of 2012 was for declaration and permanent injunction whereas in the second suit O.S. No.62 of 2015, the relief sought was only for permanent injunction. The

Court below has also found that cause of action for both the suits was different and as such, the latter suit could not be stayed in the light of the provisions contained under Section 10 of CPC.

4. I have heard the learned counsel for petitioners. The second suit filed by the defendants in the earlier suit is for permanent injunction to protect their possession, whereas the earlier suit filed by Iranna, who is petitioner No.4 herein, was for declaration of his title over the property and for permanent injunction. It has to be noticed here that application filed by defendants in O.S. No.304 of 2012 seeking temporary injunction was rejected as not maintainable. The said order was confirmed in appeal. In such circumstance, as they could not claim any relief of injunction in the suit filed by the : 5 : present petitioner No.4, they instituted a separate suit in O.S. No.62 of 2015 to protect their possession.

Therefore, it cannot be said that as per Section 10 of

CPC, the latter suit was required to be stayed.

5. The ingredients of Section 10 of CPC are not satisfied in the present case for grant of stay of the subsequent suit. Hence, the impugned order under challenge cannot be found fault with. The Writ

Petition is, therefore, dismissed .

Sd/- JUDGE

RK/-