SHIVAIAH Vs. ASHOK VENKATESH SHET

JUDGEMENT

(1.) This review petition is filed praying this Court to review the judgment and decree passed in R.F.A.No.1013/2013 dtd. 2/12/2019, confirming the judgment and decree passed by the Trial Court in O.S.No.4416/2006 dtd. 27/3/2013.

(2.) The main contention urged in this review petition is that in spite of the Trial Court directed to produce the original power of attorney, the same has not been produced and ought to have drawn an adverse information with regard to non production of power of attorney. The learned counsel also would vehemently contend that the very title of the plaintiff was denied before the Trial Court. When such being the case, the suit for bare injunction is not maintainable.

(3.) The learned counsel appearing for the review petitioner would contend that in view of the judgment of the Apex Court in the case of JHARKHAND STATE HOUSING BOARD v. DIDAR SINGH AND ANOTHER reported in (2019) 17 SCC 692, in paragraph No.12, held that, it is for the plaintiff to seek declaration and hence the suit for permanent injunction is not maintainable. The Court is empowered to decide the issue of declaration in the same suit to mitigate the litigation and hence filed the review petition. The learned counsel also would contend that while arguing the appeal by oversight did not place the citation in the case of ANATHULA SUDHAKAR v. BUCHI REDDY (DEAD) BY L.Rs.,.00 and Ors . reported in 2008 AIR SCW 2692. This Court while considering the appeal in paragraph No.16 in page No.29 held that "it is left open to the parties to file a comprehensive suit with regard to declaration". Further observed in page No.28 that "both the parties are claiming their respective title based on the sale deed". When such observations are made, the said observations should be made against the plaintiff/respondent particularly and if that is modified to such an extent, the dispute will be decided in a particular manner. Hence, modify the said judgment by allowing the review petition.