- 1 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 105106 OF 2025 (GM-CPC) BETWEEN: 1. MANJUNATH S/O. GOVIND SHET @ REVANKAR, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: KUSOOR, TQ: MUNDGOD, DIST: UTTARA KANNADA – 581 349. 2. SOUMYA D/O. GOVIND SHET W/O. GANESH @ KUDTARKAR, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O: KUSOOR, TQ: MUNDGOD, DIST: UTTARA KANNADA – 581 349. 3. SUNANDA D/O. GOVIND SHET @ PATIL, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O: KUSOOR, TQ: MUNDGOD, DIST: UTTARA KANNADA – 581 349. 4. POORNIMA @ ANNAPURNA D/O. GOVIND SHET @ PATIL, AGE: 63 YEARS, OCC: HOUSEHOLD, R/O: KUSOOR, TQ: MUNDGOD, DIST: UTTARA KANNADA – 581 349. …PETITIONERS (BY SRI. VENKATESH M. KHARVI, ADVOCATE) AND: 1. K. R. VASUDEVAN S/O. RAGHAVAN, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: KUSOOR, TQ: MUNDGOD, DIST: UTTARA KANNADA – 581 349. …RESPONDENT (BY SRI. ANKIT DESAI, ADVOCATE FOR MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.10 12:20:18 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR SOLE RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE ORDER PASSED BY CIVIL JUDGE AND JMFC MUNDGOD IN OS NO. 51/2024 IN IA NO. 1 AND 2 DATED 27/02/2025 VIDE ANNEXURE-G AND CONSEQUENTLY ORDER PASSED BY SENIOR CIVIL JUDGE AND PRL. JMFC SITTING AT MUNDGOD IN MA NO.06/2025 ON IA NO.1 DATED 14/07/2025 VIDE ANNEXURE-L IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This writ petition is filed by the petitioners, challenging the order dated 14.07.2025, passed on I.A.No.1 in M.A.No.6/2025, by the Senior Civil Judge and Principal JMFC, Yellapur, sitting at Mundgod. 2. The brief facts leading rise to the filing of this petition are as follows: 2.1. The plaintiff/respondent has filed a suit for permanent injunction against the defendants/petitioners herein in O.S.No.51/2024. The plaintiff/respondent filed an application in - 3 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 I.A.No.1 under Order XXXIX Rules 1 and 2 of CPC seeking an order of temporary injunction. The defendants/petitioners protesting the said application filed an application in I.A.No.2 under Order XXXIX Rule 4 of CPC. The Trial Court dismissed I.A.No.2 filed by defendants/petitioners and allowed I.A.No.1 filed by the plaintiff/respondent vide order dated 27.02.2025. 2.2. The defendants/petitioners, aggrieved by the order passed on I.A.Nos.1 and 2, dated 27.02.2025, preferred an appeal in M.A.No.6/2025 before the learned Senior Civil Judge at JMFC, Yellapur, sitting at Mundgod. 2.3. Before the First Appellate Court, the petitioners/defendants, along with the appeal memo, filed an application in I.A.No.1 under Order XLI Rule 5 of CPC to stay the operation and execution of the orders on I.A.Nos.1 and 2 passed in O.S.No.51/2024. The First Appellate Court, vide - 4 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 order dated 14.07.2025, rejected the said application. 2.4. The defendants/petitioners, aggrieved by the order passed on I.A.No.1 by the First Appellate Court, filed the present petition. 3. Heard the learned counsel for the defendants/petitioners and the learned counsel for the plaintiff/respondent. 4. Learned counsel for the defendants/petitioners submitted that the First Appellate Court committed an error in rejecting I.A.No.1 on the ground that, if the impugned order passed by the Trial Court is stayed, then in this rainy season, by taking undue advantage of the stay order, the defendants/petitioners may dispossess the plaintiff/respondent from the suit house. He submits that the defendants/petitioners have filed an application under Order XXVI Rule 9 of CPC for appointment of a Court Commissioner to identify the location of the suit property. Hence, the First Appellate - 5 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 Court, while rejecting the application, has not recorded its findings on merits. Hence, the impugned order passed by the First Appellate Court is contrary to the records. On these grounds, he prayed to allow the writ petition. 5. Per contra, learned counsel for the plaintiff/respondent supported the impugned order and prayed to dismiss the writ petition. 6. Perused the records, and considered the submissions of the learned counsel for the parties. 7. It is not in dispute that the plaintiff/respondent filed a suit for perpetual injunction against the defendants/petitioners. In the said suit, the plaintiff/respondent filed an application seeking an order of temporary injunction. The Trial Court, after hearing the learned counsel for the parties, allowed the application and restrained the defendants/petitioners - 6 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 from encroaching upon the suit schedule property and from erecting a fence until disposal of the suit. 8. The defendants/petitioners, aggrieved by the order on I.A.No.1 dated 27.02.2025, preferred an appeal in M.A.No.6/2025. In the appeal, the defendants/petitioners filed an application to stay the operation and execution of the order on I.A.No.1 passed in O.S.No.51/2024. The said application was opposed by the plaintiff/respondent. 9. The Trial Court and the First Appellate Court observed and recorded findings that the plaintiffs/respondent's property is a house property, and the defendants/petitioners’ property is an agricultural land. The defendants/petitioners have not placed sufficient materials before the Court to show that, by taking undue advantage of the order of the temporary injunction, the plaintiff/respondent has obstructed or interfered with the cultivation of agricultural land by the defendants/petitioners. - 7 - HC-KAR NC: 2025:KHC-D:11144 WP No. 105106 of 2025 10. Admittedly, the property claimed by the defendants/petitioners is agricultural land, and the property claimed by the plaintiff/respondent is a residential house. Both properties are different. The First Appellate Court was justified in rejecting the application filed under Order XLI Rule 5 of the Code of Civil Procedure. I do not find any error in the impugned order. 11. Accordingly, I proceed to pass the following: ORDER i. The writ petition is dismissed. ii. The First Appellate Court is directed to dispose of the appeal in M.A.No.6/2025 within one month from the date of receipt of a copy of this order. iii. The First Appellate Court is directed to dispose of the appeal without being influenced by any observations made by this Court in this order. Sd/- (ASHOK S. KINAGI) JUDGE gab/CT-ASC/ List No.: 2 Sl No.: 21