- 1 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.109162 OF 2016 (GM-CPC) BETWEEN: SHRI. KURUGODU VADDE HANUMANTHAPPA, S/O. LATE KURUGODU ERANNA, AGE: 61 YEARS, OCC: COOLIE, R/O. SATYAVANI NAGAR, BESIDE INDIRA NAGAR, BALLARI. …PETITIONER (BY SMT. V.VIDYA, ADVOCATE) AND: SHRI. V. VENKATESULU S/O. MARAPPA, AGE: 62 YEARS, OCC: AGRICULTURE AND MINE OWNER, R/O PLOT NO.4, WARD NO.24, VEERANAGOUD COLONY, INFANTRY ROAD, CANTONMENT, BALLARI. …RESPONDENT (BY SRI. RAJENDRA PATIL, ADVOCATE FOR SRI. SRINAND A.PACHHAPURE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE IMPUGNED ORDER DATED 30.08.2016, PASSED BY THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT BALLARI IN MA NO.12/2010 AS PER ANNEXURE-E AND THE IMPUGNED ORDER DATED 09.02.2010, PASSED BY THE HON’BLE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC BALLARI IN MC NO.2/2007 AS PER ANNEXURE-B IN THE INTEREST OF JUSTICE AND EQUITYL. THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.09 15:15:07 +0530 - 2 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 ORAL ORDER This petition is by the defendant assailing the order of the trial Court wherein, trial Court after enquiry exercising its’ power under Order XXXIX Rule 2(a) read with Sections 94 and 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’ for brevity) has proceeded to attach the petitioner’s property bearing Door No.151 situated at Allipura and further ordered to detain the petitioner in civil prison for a period of 10 days. This order is confirmed by the First Appellate Court in M.A.No.12/2010. 2. Heard the learned counsels appearing for the petitioner/defendant and respondent/plaintiff. 3. Respondent/plaintiff has filed a suit seeking relief of declaration of title and for consequential relief of mandatory injunction and permanent injunction. Having instituted a suit, respondent/plaintiff filed an application under Order XXXIX Rule 1 and 2 of CPC seeking ad-interim order of injunction. The trial Court having assessed the prima-facie materials was pleased to grant ad-interim injunction vide order dated 02.09.2006 and - 3 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 thereby, the present petitioner was restrained from constructing eastern wall. 4. Respondent/plaintiff filed an application under Order XXXIX Rule 2(a) read with Section 94 and 151 of CPC alleging that the present petitioner/defendant despite communication of interim injunction, has deliberately violated the order and has put up a door in the disputed property. This led to an enquiry at the hands of the Court of first instance. Respondent/plaintiff led in oral evidence. The claim of respondent/plaintiff was countered by petitioner. The Court of first instance, however, held that disobedience is substantiated by plaintiff and hence, allowed the petition filed under Order XXXIX Rule 2(a) read with Section 94 and 151 of CPC and attached the present petitioner’s property. Consequently, ordered to detain the petitioner in civil prison for a period of 10 days. 5. The First Appellate Court confirmed the order of the trial Court and this compelled the petitioner to approach this Court by filing W.P.No.65197/2011. Since petitioner came up with a new ground before this Court alleging that he is residing - 4 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 separately and he is not good terms with his son and therefore, contended that service of notice on son, does not amount to due service on father, this Court was compelled to remit back the matter to the Appellate Court to examine this crucial issue before deciding as to whether there is a willful disobedience by petitioner herein. Post remand, it appears petitioner did not lead any further evidence to substantiate that he is not cordial with his son and therefore, service of injunction order on son will not amount to due compliance of sub-rule (3) of Order XXXIX of CPC. 6. The petitioner further submitted that the notice was not duly served as the same was addressed to his son in the name of "Kanakaraju," whereas his son's actual name is "Raju." He contended that, on this ground alone, the proceedings ought to be held as not maintainable, as the service was not effected on the proper person. However, the First Appellate Court, upon examination of the materials available on record and in the absence of any additional evidence produced by the petitioner to demonstrate that he was estranged from his son or that they were not residing together, declined to accept the petitioner’s submission. The Court found no compelling reason - 5 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 to interfere with the findings recorded by the Trial Court and accordingly concurred with its conclusion. 7. During the course of arguments, the learned counsel appearing for the respective parties brought to the attention of this Court that the suit filed by the respondent/plaintiff seeking relief of declaration and mandatory injunction has already been dismissed. It was further submitted that the Regular Second Appeal preferred by the respondent/plaintiff challenging the said dismissal is currently pending consideration before this Court in R.S.A. No.100422/2022. Similarly, it was also brought to the notice of this Court that the petitioner herein has filed a separate Regular Second Appeal, R.S.A.No.100097/2022, challenging the grant of perpetual injunction by the Trial Court, which is also pending adjudication. The pendency of both these appeals is a relevant factor for consideration in the present proceedings. 8. It is also pertinent to note from the records that there have been no subsequent violations of the permanent injunction granted in O.S.No.378/2006 by the petitioner. - 6 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 Moreover, the respondent/plaintiff, despite the concurrent findings by the Trial and First Appellate Courts denying him the relief of declaration and mandatory injunction, continues to enjoy the benefit of a perpetual injunction. 9. Though the material on record clearly demonstrates that there has been a disobedience of the injunction order by the petitioner, this Court is inclined, in the peculiar facts and circumstances of the case, to exercise its discretion in a manner that tempers justice with compassion. The petitioner, being a senior citizen aged over 70 years, is not shown to have committed any further acts of violation subsequent to the issuance of the injunction, and the records do not reflect any recurring breach. Moreover, it is evident that the primary reliefs sought by the respondent, namely declaration and mandatory injunction, have been declined by both the Trial Court and the First Appellate Court, with respective Regular Second Appeals currently pending before this Court. In light of these significant developments, this Court is of the considered view that the ends of justice would be adequately served by modifying the punitive measure of civil imprisonment and substituting it with the imposition of a reasonable cost. Accordingly, in exercise of - 7 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 powers under Order XXXIX Rule 2A(2) of the Code of Civil Procedure, this Court deems it appropriate to impose a cost of Rs.10,000/- payable by the petitioner to the respondent within a stipulated time, in lieu of undergoing civil imprisonment. 10. Having regard to the above factual matrix and keeping in view the advanced age of the petitioner, who is stated to be above 70 years, this Court is of the considered view that the order under challenge warrants modification. Although a prima facie case of disobedience of the injunction order appears to be made out, the petitioner has not produced cogent and convincing evidence to support his defense. Nonetheless, taking into account the peculiar facts of the case, including the pending appeals, and exercising the discretion vested in this Court under Order XXXIX Rule 2A(2) of the Code of Civil Procedure, this Court deems it just and appropriate to substitute the punishment of civil imprisonment with the imposition of costs. Accordingly, in lieu of the punishment of detention, a cost of Rs.10,000/- (Rupees Ten Thousand only) is imposed on the petitioner, to be paid to the respondent by way of Demand Draft within a period of four weeks from the date of receipt of the certified copy of this order. - 8 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 11. In view of the foregoing discussion, the order of attachment and the consequent direction for civil imprisonment of the petitioner for a period of 10 days is liable to be modified suitably. Hence the following; ORDER i) The Writ Petition is allowed in part. ii) The order dated 09.02.2010 passed in Civil Misc. Case No.2/2007 by the learned Principal Civil Judge (Junior Division) and JMFC, Bellary, as well as the order dated 30.08.2016 passed by the learned Principal Senior Civil Judge and CJM, Ballari in Miscellaneous Appeal No.12/2010, are hereby set aside and modified. iii) In substitution of the direction for civil imprisonment, the petitioner is directed to pay a cost of Rs.10,000/- (Rupees Ten Thousand only) to the respondent by way of Demand Draft within a period of four (4) weeks from the date of receipt of the certified copy of this order. - 9 - NC: 2025:KHC-D:6021 WP No. 109162 of 2016 iv) In the event of non-compliance with this direction within the stipulated time, the order of the Trial Court directing detention of the petitioner in civil prison for a period of 10 days shall automatically revive and be given effect to in accordance with law. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE AM/-- Ct:vh List No.: 1 Sl No.: 9