Mahaveer Textiles Agencies by Mohanlal Phokarchand Bhansali Also by His Son Goutamkumar Mohanlal and Sha Goutamkumar Kishorekumar Hubli by Mohanlal Phokarchand Bhansali and Also by His Son Goutamkumar Mohanlal Bhansali Vs. Chandrasekhar Basavaraj Talikoti, - Court Judgment

Excerpt:

- code of civil procedure, 1908. section 100:[v. jagannathan, j] remand of case by second appellate court held, directions given by second appellate court cannot be ignored by lower appellate court on the grounds that said directions are without jurisdiction or nullity and non-est in eyes of law. -- section 100: second appeal concurrent findings of fact held, it is not liable to be interfered with even if first appellate court commits an error in recording a finding of fact. -- order 41, rule 23a & section 105(2): appealable order - decree passed by lower appellate court was reversed in appeal and further directions were given to dispose of matter in light of observations made in the order of remand held, appeal can be said to have been disposed of otherwise than on a preliminary point. provisions of rule 23a of order 41 is applicable. order passed pursuant to rule 23a becomes an appealable order. no appeal against remand order having been preferred, party aggrieved is precluded from disputing correctness in view of section 105(2). .....with notice and has issued suit summons and notice on i.a. no. 2 against defendants 1 to 4 on emergent basis, returnable by 6.5.2009.2. basic facts of the case is that, the petitioners have suffered an ejectment decree dated 7.11.2009 in o.s. 193/2004 in respect of the suit schedule premises. they have questioned the said decree in r.a. nos. 151 and 1s2 of 2007 on the file of the principal civil judge (sr.dn.,), hubli. the said appeals were filed on 30.11.2007. after notice, by an order dated 10.1.2008, an interim order of stay of the operation of the impugned judgment and decree of the lower court was granted till the disposal of the appeals subject to the deposit of rent in court as and when it falls due. the said appeals are still pending.3. alleging that, the respondents were instrumental in the fire accident that took piece and also that they threatened to dispossess the petitioners illegally, they filed the aforesaid suits for decree of permanent injunction to restrain the defendants from disturbing their possession and enjoyment of the suit property until the defendants get vacant possession of the suit property by a process known to law. along with suits, they have.....

Judgment:

ORDER

A.N. Venugopala Gowda, J.

1. Petitioners are the plaintiffs in Vacation O.S. Nos. 1 and 2 of 2009 on the file of the Vacation District Court, Dharwad. Respondents are the defendants in the said suits. The grievance of the petitioners in these writ petitions, is against the order dated 29.4.2009 passed in the said suits, whereby the Court below declined to dispense with notice and has issued suit summons and notice on I.A. No. 2 against defendants 1 to 4 on emergent basis, returnable by 6.5.2009.

2. Basic facts of the case is that, the petitioners have suffered an ejectment decree dated 7.11.2009 in O.S. 193/2004 in respect of the suit schedule premises. They have questioned the said decree in R.A. Nos. 151 and 1S2 of 2007 on the file of the Principal Civil Judge (Sr.Dn.,), Hubli. The said appeals were filed on 30.11.2007. After notice, by an order dated 10.1.2008, an interim order of stay of the operation of the impugned Judgment and Decree of the lower Court was granted till the disposal of the appeals subject to the deposit of rent in Court as and when It falls due. The said appeals are still pending.

3. Alleging that, the respondents were Instrumental in the fire accident that took piece and also that they threatened to dispossess the petitioners illegally, they filed the aforesaid suits for decree of permanent injunction to restrain the defendants from disturbing their possession and enjoyment of the suit property until the defendants get vacant possession of the suit property by a process known to law. Along with suits, they have filed I.A.2 under Order 39 Rules 1 and 2 r/w Section 151 CPC for passing an order of temporary injunction against the defendants from illegally dispossessing the plaintiffs from the plaint schedule property. The Court below has passed the aforesaid order on 29.4.2009. The reason which has weighed with the Court below In declining to grant the ad-Interim relief, as could be seen from the impugned order is that, nothing had been stated in the plaint that the Appellate Court in R.A. Nos. 151 and 152 of 20C7 granted stay of the decree in O.S. 193/2004.

4. Smt. Suman Hegde, learned counsel appearing for the petitioners vehemently contended that, the Court below has failed to take into consideration the Interim order of stay passed in R.A. Nos. 151 and 152 of 2007 on 10.1.2008 even though the same has been produced before it and hence it has failed to properly exercise the jurisdiction vested in it, which has resulted in miscarriage of justice. Learned counsel in support of her submission, referred to Annexures D and E viz., the order sheet of R.A. 151 and 152 of 2007, wherein, by an order dated 10.1.2008, the operation of Judgment and Decree passed in O.S. 193/2004, which has been impugned in the said appeals, has been stayed till the disposal of the appeals.

5. Though a perusal of the plaint show that nothing has been averred with regard to grant of stay by the appellate Court in R.A. Nos. 151 and 152 of 2007, but the fact remains that, interim order of stay has been granted in the said appeals on 10.1.2008. Petitioners have asserted that, they produced the interim orders in both the suits.

6. In view of the said order dated 10.1.2008 (Annexures D and E), there is an apparent error in the impugned orders. Though there is an error, in order to avoid multiplicity of proceedings, I decline to entertain these writ petitions making it clear that, the petitioners are at liberty to file fresh applications in the pending suits before the Vacation Court by making available the copies of the interim order dated 10.1.2008 passed in R.A. Nos. 151 and 152 of 2007 and seek appropriate orders. The Vacation/Trial Court shall consider the applications if filed by the petitioners and pass appropriate orders, notwithstanding the order dated 29.4.2009 impugned herein. If the petitioners file applications In the pending suits, the Court below is hereby directed to consider the same and pass appropriate orders without any delay.

Writ petitions stand disposed of accordingly.