IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 18 th DAY OF JANUARY 2016

BEFORE

THE HON’BLE MR.JUSTICE B.S.PATIL

WRIT PETITION No.110399 of 2015 [GM-CPC]

BETWEEN:

1. SMT.HANAMAWWA W/O MALLAPPA AGE:74 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:, DIST:BELAGAVI

2. DURGAPPA MALLAPPA YARAGATTI AGE:39 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:RAMDURG DIST:BELAGAVI

3. SRI.YALLAPPA S/O MALLAPPA YARAGATTI AGE:38 YEARS, OCC:COOLIE R/O MAHANTESHNAGAR BELAGAVI

4. GADIGEPPA MALLAPPA YARAGATTI AGE:36 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:RAMDURG, DIST:BELAGAVI

5. HANAMANTAPPA MALLAPPA YARAGATTI AGE:34 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:RAMDURG, DIST:BELAGAVI

6. GANGAWWA W/O BASAPPA AGE:39 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE : 2 :

TQ:RAMDURG, DIST:BELAGAVI

7. SHETTEWWA D/O MALLAPPA YARAGATTI NOW SMT SHETTEWWA W/O YALLAPPA KEELI AGE:29 YEARS, OCC:AGRICULTURE R/O BASARGI VILLAGE TQ:RAMDURG, DIST:BELAGAVI

8. SMT YALLAWWA MALLAPPA YARAGATTI NOW SMT YALLAWWA W/O VITHAL PARUTI AGE:26 YEARS, OCC:AGRICULTURE R/O KENDUR VILLAGE, TQ:BADAMI DIST:BAGALKOT

9. BASAPPA MALLAPPA YARAGATTI AGE:20 YEARS, OCC:AGRICULTURE R/O BOCHABAL VILLAGE TQ:RAMDURG, DIST:BELAGAVI

10. KUMARI KALLAWWA MALLAPPA YARAGATTI AGE:19 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:RAMDURG, DIST:BELAGAVI

11. FAKIRAPPA MALLAPPA YARAGATTI AGE:37 YEARS, OCC:AGRICULTURE R/O:BOCHABAL VILLAGE TQ:RAMDURG, DIST:BELAGAVI ... PETITIONERS (By Sri. ARUN L NEELOPANT ADV. AND SHRIHARSHA A.NEELOPANT ADV.)

AND: SMT. BASAWWA W/O GADIGEPPA BASHETTI AGE: 64 YEARS, OCC: BUSINESS R/O: BOCHABAL VILLAGE TQ: RAMDURG, DIST: BELAGAVI ... RESPONDENT (By Sri. S G KADADAKATTI ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH : 3 :

THE IMPUGNED ORDER DATED 25.07.2015 PASSED BY THE CIVIL JUDGE AND JMFC, RAMDURG IN O.S.NO. 39/2011 DISMISSING THE I.A. NO.17 FILED BY THE PETITIONERS UNDER ORDER 7 RULE 11 R/W.SEC. 151 OF CPC AS PER ANNEXURE-A AND ALLOW I.A.NO.17 IN THE ENDS OF JUSTICE AND EQUITY.

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

O R D E R

This Writ Petition is filed challenging the order dated 25.07.2015 passed by the Court below rejecting the application filed by defendant No.4 under Order

VII Rule 11 of the Code of Civil Procedure, 1908 (for short ‘CPC’).

2. The suit has been filed seeking a decree of permanent injunction. Plaintiff has contended that he is in possession of the property by virtue of an agreement to sell executed by the defendants.

Indeed, a suit in O.S. No.95 of 2007 had been instituted by the present respondent/Smt.Basawwa against the very petitioners based on the agreement to sell and the suit came to be decreed holding that the respondent / Smt.Basawwa successfully established the due execution of the agreement. : 4 :

3. The case of respondent is that pursuant to the agreement, the factum of she having been put in possession of the property was found established; decree passed in O.S. No.95 of 2007 has been confirmed in R.A. No.414 of 2010; aggrieved by the same, a second appeal has been filed by petitioners in

RSA No.5619 of 2011 before this Court. There is an interim order of stay of the judgments under challenge granted by this Court.

4. In the meanwhile, contending that taking advantage of the interim order and with the help of their henchmen, petitioners herein were trying to take away the sugarcane and other crops grown by

Basawwa/respondent herein, she has filed the present suit in O.S. No.39 of 2011 seeking decree of permanent injunction. Cause of action for the present suit has been stated as the alleged interference with peaceful possession and enjoyment of the property by petitioners prior to filing of the suit, as is evident from paragraph No.7 of the plaint. : 5 :

5. In the present suit, petitioners have filed an application seeking rejection of plaint. They have contended that present suit filed was hit by Order II

Rule 2 of CPC. The trial court has dismissed the application holding that relief of injunction was based on recurring cause of action and as long as plaintiff/respondent herein made out a case that an attempt was made to illegally interfere with the peaceful possession and enjoyment of the plaintiff, a suit can be brought, as there was no bar for such a suit.

6. Learned counsel for the petitioners contends that respondent could have sought an interim injunction in the pending second appeal and therefore, a second suit for injunction was barred by the principles embodied in Order II Rule 2 of CPC.

7. This contention is untenable. The first suit, in which plaintiff / Basawwa has succeeded before the two Courts, was only for specific performance of contract. She has not sought for a decree of : 6 : permanent injunction in the said suit, probably because her possession was not interfered at that stage. At any rate, on the fresh cause of action, based on alleged interference during the pendency of earlier proceedings, the present suit for injunction has been filed.

8. It cannot be said that such a suit is barred by law or, for that matter, by the principles embodied in Order II Rule 2 of CPC having regard to the facts and circumstances of this case. The Court below has rightly proceeded on the basis of the plaint averments, which alone have to be kept in mind in deciding whether the plaint was required to be rejected as barred by law.

Hence, I decline to interfere with the matter.

Petition is accordingly dismissed .

Sd/- JUDGE

RK/-