- 1 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 107912 OF 2025 (GM-CPC) BETWEEN: 1. SRI. BASAPPA S/O SIDDAPPA HALAGATTI, AGE. 57 YEARS, OCC. AGRICULTURE. 2. SRI. FAKKIRAPPA S/O SIDDAPPA HALAGATTI, AGE. 55 YEARS, OCC. AGRICULTURE, 3. SRI. VITHAL S/O SIDDAPPA HALAGATTI, AGE. 51 YEARS, OCC. AGRICULTURE, 4. SRI. YALLAPPA S/O SIDDAPPA HALAGATTI, AGE. 48 YEARS, OCC. AGRICULTURE, ALL ARE R/O. CHILAMUR VILLAGE, TQ. RAMDURG, DIST. BELAGAVI-591 130. … PETITIONERS (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. SRI SHANKARAPPA S/O IRAPPA KUNDRAL, AGE. 85 YEARS, OCC. AGRICULTURE, CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench Date: 2025.11.21 11:41:29 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 R/O. CHILAMUR VILLAGE, TQ. RAMDURG, DIST. BELAGAVI-591 130. 2. SRI. LAXMAN S/O NINGAPPA KUNDRAL, AGE. 54 YEARS, OCC. AGRICULTURE, R/O. CHILAMUR VILLAGE, TQ. RAMDURG, DIST. BELAGAVI-591 130. 3. SRI. NINGAPPA S/O LAXMAN KUNDRAL, AGE. 27 YEARS, OCC. AGRICULTURE, R/O. CHILAMUR VILLAGE, TQ. RAMDURG, DIST. BELAGAVI-591 130. 4. SRI. SHIVANAND S/O LAXMAN KUNDRAL, AGE. 23 YEARS, OCC. AGRICULTURE, R/O. CHILAMUR VILLAGE, TQ. RAMDURG, DIST. BELAGAVI-591 130. … RESPONDENTS (BY SRI. MALATESH HIPPALI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER PASSED IN M.A. NO.5/2025 DATED 10.10.2025 BY THE SENIOR CIVIL JUDGE RAMDURG, VIDE ANNEXURE-H, AS NULL AND VOID. THIS PETITION COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 ORAL ORDER (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) 1. This petition is filed assailing the order passed in Miscellaneous Appeal No.5 of 2025 on the file of Senior Civil Judge, Ramdurg. In terms of the said order, the miscellaneous appeal filed by plaintiffs/respondents is allowed and order of temporary injunction granted in favour of the petitioners/defendants is vacated. 2. The suit is one for bare injunction in respect of property bearing Survey Nos.4/2, 4/3, 4/4, 4/5, 4/7, 4/8, 4/9 and Survey No.4/10 of Chilamur village of Ramdurga taluk. 3. The defendants in the said suit oppose the plaintiffs’ claim and claimed that they have right of way in the suit properties to reach their Survey Nos.4/1, 4/6 & 4/12, through the lands of the plaintiffs. 4. The plaintiffs’ application seeking temporary injunction is rejected. The defendants filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking temporary injunction against the plaintiffs to restrain the - 4 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 plaintiffs from making use of the road passing through the suit properties to reach their R.S.Nos.4/1, 4/6 & 4/12. 5. The trial Court allowed the defendants’ application. Hence the plaintiffs filed miscellaneous appeal referred to above. The miscellaneous appeal is allowed and consequently the defendants’ application seeking temporary injunction is vacated. 6. Learned counsel for the petitioners/defendants would submit that order rejecting plaintiffs’ application seeking temporary injunction has attained finality and the plaintiffs have not questioned the same and thereafter the Appellate Court could not have taken a different view holding that the defendants is not entitled to the relief of temporary injunction. 7. The Appellate Court has allowed the appeal on two grounds; (a)the defendants could not have filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking temporary injunction; (b)the Village Map discloses existence of an alternative road, as such, the plaintiffs are not entitled to the relief of injunction. - 5 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 8. Learned counsel for the petitioners would submit that Order XXXIX Rule 1(a) of Code of Civil Procedure would provide for an application by the defendants. Merely because the defendants have quoted entire Order XXXIX Rule 1 and 2 of Code of Civil Procedure, it does not mean that the application is not under Order XXXIX Rule 1(a) and it is also his further submission that wrong quoting of the provision, is not a ground to reject the application. If the application is otherwise maintainable, the same has to be allowed, despite quoting the wrong provision, is the submission. 9. In addition to that, learned counsel would also submit that existence of the road is very much established from the report of the Court Commissioner appointed by this Court. Thus would contend that the Appellate Court could not have interfered with the finding of the trial Court. Learned counsel in support of his contention would place reliance on the judgment of the Division Bench of this Court in the case of Ramaiah & Others Vs.Godappa & Others1. 1 1989(1) KLJ 210 - 6 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 10. Learned counsel for the plaintiffs/respondents would place reliance on the judgment of the Full Bench of this Court in Smt.Shakunthalamma and Others Vs.Smt.Kanthamma and Others2. Referring to the said judgment, it is urged that the defendants could not have moved an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure. The defendants at the most could have moved an application under Order XXXIX Rule 1(a) and the Appellate Court is justified in holding that the application by the defendants under Order XXXIX Rule 1 and 2 of the Code is not tenable. 11. In addition, it is also submitted that the Village Map does not indicate the existence of the road as claimed by the defendants. On the other hand, the Village Map would indicate the existence of an alternative road and since the alternative road is available, the defendants are not entitled to claim the road in the plaintiffs’ property. 12. Further, the learned counsel for the respondents would also place reliance on the report of the Court Commissioner who visited the spot on 06.11.2025. Referring to 2 ILR 2014 Kar 6025 - 7 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 the said report, he would submit that report does not indicate road in Survey No.4/4, in which the defendants are claiming right of way, as such, the application seeking temporary injunction is not tenable. 13. It is his further submission that the Commissioner has clearly indicated that the road or cart way is not available in any of the suit lands, as such, the Appellate Court is justified in refusing the application seeking temporary injunction. 14. By way of reply, learned counsel for the petitioners would contend that the alternative road suggested by the plaintiffs is not available and the Court Commissioner has indicated that the said alternative road passes through a stream and water is flowing in the stream and the depth of the stream is waist height (3 to 4 feet). 15. The Court has considered the contentions raised at the Bar and perused the records. 16. As far as position of law relating to the right of the defendants to seek temporary injunction is concerned, it is governed by Order XXXIX Rule 1(a) of the Code of Civil - 8 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 Procedure. It is noticed that the defendants have filed application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The defendants have not specified as to under which particular clause the application is filed. Assuming that the provision of law quoted is erroneous, the Court is of the view whether the applicant has made out a case to grant relief, is the matter that requires consideration. 17. Order XXXIX Rule 1(a) of the Code of Civil Procedure provides that even the defendants can file an application seeking temporary injunction if it is established that the property is in danger of being vested or damaged. As already noticed, the defendants are claiming right of way in the plaint schedule properties, which admittedly belong to the plaintiffs. Plaintiffs are disputing the existence of such road. Thus there is an apprehension of closure of alleged road. 18. Though the defendants have contended that there is a cart way available in the suit lands, the report of the Court Commissioner indicates that there is only a pathway on the northern side of the suit lands. The Court Commissioner has indicated that the width of the pathway is around 2 feet. It is - 9 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 also noticed that no pathway is found in Survey No.4/4 and not in Sy.No.4/5. However, the pathway is found in Survey Nos.4/7, 4/2, 4/3, 4/18 & 4/19. 19. It is also noticed that a cart road reaches to Survey No.4/5 which admittedly belongs to the plaintiffs. Though it is noticed that there is no cart road mentioned in Survey No.4/4, given the fact that there is a pathway measuring 2 feet on the northern side of Survey Nos.4/7, 4/2, 4/3, 4/8 and 4/9, the Court, at this juncture, only for the purpose of considering the interlocutor application, is of the view that the defendants can make use of the said pathway to reach the main road through Survey Nos.4/4 and 4/5. 20. It is made clear that the finding of this Court relating to 2 feet pathway is only a tentative finding that should not be construed as having reflected anything on the merits of the claim of the defendants. The defendants are also not entitled to widen the said pathway. Whether the alternative road as claimed by the plaintiffs is in existence or not, is a matter to be considered by the trial Court based on the evidence to be placed before the trial Court. - 10 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 21. As far as the contention of the learned counsel for the plaintiffs based on the judgment of the Full Court of this Court, the Court is of the view that the aforementioned judgment has only indicated the broad principle that the defendants can file an application under Order XXXIX Rule 1(a) of the Code of Civil Procedure to seek injunction for the relief which is specified in the Order XXXIX Rule 1(a). That judgment does not hold that if an application is filed under Order XXXIX Rule 1 and 2 of CPC, the defendants' application cannot be considered. 22. The question that requires consideration is, whether the defendants have made out the ground to make a claim under Order XXXIX Rule 1(a) of Code of Civil Procedure. 23. The Court having considered the pleadings is of the view that the defendants have asserted that the plaintiffs are likely to damage or close the pathway or the cart way which they claim. Under these circumstances, notwithstanding the omission to specify the exact provision namely the Order XXXIX Rule 1(a), the application filed by the defendants has to be construed as one having filed by invoking Order XXXIX Rule 1(a) of the Code. - 11 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 24. As far as the alternative road alleged by the plaintiffs is concerned, since the Court Commissioner has indicated that there is a stream where the water is flowing across the alleged alternative way and the depth of the water is around 3 to 4 feet, the Court is of the view that when the Court Commissioner visited, the alternative way was not available. 25. However, the Court trying the suit should not be influenced by those observations, as the Commissioner was appointed only for a limited purpose of dealing with the petition before this Court. Under the circumstances, the following: ORDER i. Writ Petition is allowed in part. ii. The defendants are restrained from interfering the plaintiffs’ use of 2 feet pathway as indicated in the Court Commissioner’s report. The plaintiffs should not prevent the plaintiffs from making use of 2 feet pathway in Survey Nos. 4/4 and 4/5 to reach their Survey Nos.4/6, 4/12 & 4/1. - 12 - HC-KAR NC: 2025:KHC-D:15387 WP No. 107912 of 2025 iii. All observations made here are only for the purpose of disposal of the interlocutor application. Same should not be considered as having expressed anything on the merits of the matter. All contentions kept open to be decided at the time of final disposal of the suit. Sd/- (ANANT RAMANATH HEGDE) JUDGE KGK CT:BCK LIST NO.: 1 SL NO.: 23