IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.22911 OF 2019 (GM-CPC) BETWEEN:
1. SMT.B.JAYANTHI, W/O SRI.M.C.MOHAN, AGED ABOUT 45 YEARS, R/AT NO.892, 3RD CROSS, M.C.LAYOUT, VIJAYANAGAR, BENGALURU - 560 040.
2. SRI.P.MURALI, S/O SRI.G.V.PANISHAIAH, AGED ABOUT 44 YEARS, R/AT NO.2632, 11TH MAIN, 2ND STAGE, "E" BLOCK, RAJAJINAGAR, BENGALURU - 560 010. ... PETITIONERS (BY SRI.ROHITH GOWDA, ADVOCATE) AND:
1. SRI.JAYAPRAKASH MADHIRAJU, S/O SRI.M.GOVINDARAJ, AGED ABOUT 42 YEARS, R/AT NO.9, 1ST SAS LANE, 17TH CROSS, 35TH MAIN, J.P.NAGAR 6TH PHASE, BENGALURU - 560 078.
2. SMT.MUNIRATHNAMMA, D/O SRI.RAMESH, AGED ABOUT 33 YEARS, R/AT NO.41, GEDDALAHALLI VILLAGE, HENNUR MAIN ROAD, KOTHANUR POST, K.R.PURAM HOBLI, BENGALURU - 560 077. ... RESPONDENTS (BY SMT.VAISHALI HEGDE, ADVOCATE FOR C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 01.04.2019 ON I.A.NO.5 FILED U/S 151 OF THE CODE OF CIVIL PROCEDURE IN O.S.NO.5967/2017 PASSED BY THE LEARNED VII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU (CCH:19), WHICH IS PRODUCED AND MARKED AT ANENXURE-W TO THE WRIT PETITION, CONSEQUENTLY DISMISS THE APPLICATION I.E., I.A.NO.5 FILED BY THE R-1 IN O.S.NO.5967/2017, WHICH IS PRODUCED AT ANNEXURE-V TO THE WRIT PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners being the defendants in a declaratory suit filed by the 1st respondent herein in O.S.No.5967/2017, are invoking the writ jurisdiction of this Court for assailing the order dated 01.04.2019, a copy whereof is at Annexure-‘W’ whereby the learned VII Additional City Civil Judge, Bengaluru having allowed the said respondents’ application in I.A.No.5 filed under section 151 of Code of Civil Procedure, 1908 a direction has been issued for police protection for enforcing the injunctive relief granted by this Court in 1st respondent’s M.F.A.No.2433/2018 disposed off vide Judgment dated 23.04.2018, a copy whereof is at Annexure –‘S’. The 1st respondent/plaintiff having entered caveat through his counsel resists the Writ Petition.
2. Learned counsel for the petitioners submits that the construction activity if permitted in the suit property would create several complications to the parties; what this court granted by the order at Annexure –‘S’ is not for protecting the construction activities that are undertaken by the 1st respondent herein but a mere injunction restraining the petitioners from interfering with peaceful possession and enjoyment of the subject land; there are several provisions in the CPC for committing the violator of the injunction to the civil prison; that being so it was not open to the Court below to afford police protection and thus there is an error apparent on the face of the impugned order warranting indulgence of this Court for setting the same at naught.
3. Learned counsel for the respondent/plaintiff per contra makes submission in justification of the impugned order contending that the order by this court in the aforesaid MFA is admittedly for an injunctive relief; the petitioners being the buyers pendente lite of the property in dispute, are bound by the order in MFA by virtue of the principle akin to lis pendens enacted under section 52 of the Transfer of Property Act, 1882 and also res judicata enacted in Section 11 of CPC; there are provisions in the CPC for taking action against the violation of the injunction order is true, but that per se does not prevent the Courts from ordering police protection. So contending, she seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the petition papers this Court declines to grant indulgence in the matter because:
i) This Court vide order dated 23.04.2018 at annexure-‘S’ in 1st respondent’s MFA No.2433/2018 has granted the injunctive relief which reads “… the respondent is restrained from interfering with the appellant’s possession and enjoyment of the suit schedule properties pending disposal of the suit …”; the possession and enjoyment of property necessarily includes the construction of building in the suit property; if it was otherwise, this Court could have put a rider against any construction, which is not the case here;
ii) This Court having granted the injunctive relief in favour of the 1st respondent as mentioned above, the Court below in its discretion exercised in accordance with rules of reason and justice has afforded police protection adverting to the circumstances of the case; true it is that the petitioners herein were not parties thereto, but there being the buyers of the subject property pendente lite are nevertheless bound by the order of this Court in the subject MFA by virtue of principles akin to lis pendens and res judicata, the contra having not been shown; and, iii) Several standard treatises on CPC like Mulla’s and Sarkar’s etc. on the basis of the decisions of several High Courts opine that in appropriate cases the Courts have inherent power and discretion to direct police protection for enforcing orders and decrees in appropriate cases; P.Shankar Rao vs. B.Susheela, AIR 2000 AP 214; N.Karpagam vs. P.Deivanaiammal AIR 2003 MAD 219; Nirabai J.Patil vs. Narayana D.Patil, AIR 2004 BOM 225; Mas Udhamji Karim Khan ji Talukdar vs.Vishnubai Garubhai Rabari, AIR 2014 GUJ 110; STP Limited vs. Nirmaljit Singh Hoon, AIR 2002 CAL 91; there are other provisions in the CPC for enforcing the injunction order is a poor solace to the victim of such violations and such an argument ill lies from the mouth of violator.
In the above circumstances, this writ petition being devoid of merits are liable to be rejected and accordingly, they are.
No costs.
Sd/- JUDGE cbc