IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.62404 OF 2016 (GM-CPC) Between:
1. Smt. Bhagyamma W/o Late Marigowda Aged about 45 years 2. Chandra S/o Chikka Puttegowda Aged about 55 years 3. Viji S/o Late Raju Aged about 35 years D-1 died and D-2 and D-4 LRs of deceased D-1 already are on record All are R/o Mudugere village, Maluru Hobli, Channapattana Taluk, Ramanagara District PIN-571501 ... Petitioners (By Sri Kishan Kumar H.M. Advocate for Sri A.G.Shivanna, Advocate) And:
1. Sri M.C.Puttaswamy S/o Late Channegowda Aged about 67 years 2. Sri M.Kishore S/o Late M.C.Madegowda Aged about 50 years Both are R/at No.2202/C3-12 3rd Cross, Kuvempu Nagara, Channapattana City, Ramanagara District.
PIN-571501 ... Respondents This Writ Petition is filed under article 227 of Constitution of India, praying to Quash the order annexure-A dated 19.11.2016 made on IA No.2 in O.S.No.216/2015 by the court of Civil Judge and JMFC, at Channapattana, Ramanagara District, granting police protection to implementation of temporary injunction order granted in favour of plaintiff.
This writ petition coming on for preliminary hearing this day, the court made the following:
ORDER This Writ Petition is filed by the defendants against the order dated 19.11.2016 allowing IA No.2 filed by the plaintiff directing the Police Sub Inspector of M.K.Doddi Police Station to give police protection to the plaintiffs to implement the order dated 12.02.2016.
2. The respondent Nos.1 and 2, the plaintiffs before the trial court filed suit for permanent injunction restraining the present petitioners/defendants from interfering with the possession of the plaintiffs over the suit schedule property. The 1st plaintiff’s father Channegowda purchased the suit schedule property under the registered sale deed dated 07.01.1949 from the father of the 3rd defendant and they are in possession and enjoyment of the suit schedule property. The defendants are strangers to the suit schedule property and they are no way concerned with the suit property etc.
3. The defendants have filed written statement and denied the entire plaint averments and contended that the suit schedule property belong to the defendants ancestors and they are in possession and enjoyment of the suit schedule property etc., and prays for dismissal of the suit.
4. During the pendency of the suit, the plaintiffs filed IA No.1 for temporary injunction restraining the defendants and their agents from interfering with the plaintiffs possession and enjoyment of the suit schedule property, pending disposal of the suit. After contest, the Trial Court by its order dated 12.02.2016, on IA No.1 granted temporary injunction as prayed for.
5. Aggrieved by the said order passed by the trial court granting the temporary injunction, the defendants filed MA No.2/2016 before the Senior Civil Judge at Channapatna and the same is pending for adjudication and it is stated by the learned counsel for the petitioners that there is no interim order passed by the lower appellate Court, staying the injunction granted by the Trial Court.
6. The plaintiffs filed IA No.2/2016 under section 151 of the Code of Civil Procedure to direct the M.K.Doddi Police to give assistance or help to the plaintiffs to implement the order of Temporary injunction granted by the Trial Court dated 12.02.2016, that the defendants disrespect and violate the same. After hearing both the parties, the trial court granted Temporary injunction. Inspite of the injunction order passed by the Trial Court, the defendants are interfering with the possession of the plaintiffs on 14.07.2016, therefore they have constrained to lodge a police complaint before the jurisdictional police. The police instead of giving police protection, has stated that there is no direction to them to assist the plaintiffs to give protection to implement the interim order passed by the Trial Court. It is also contended that, if the application is allowed and police help is granted no harm or injury will be caused to the other side and etc. The said application was resisted by the defendants by filing objections.
7. After hearing both the parties, the trial court by the impugned order dated 19.11.2016, allowed the application and granted police protection as prayed for. Hence the present writ petition is filed.
8. I have heard the learned counsel Sri Kishan Kumar H.M., for Sri Shivanna A.G., learned counsel appearing for the petitioners.
9. Learned counsel for the petitioners contended that though the Trial Court has granted injunction vide order dated 12.02.2016, the defendants already filed MA No.2/2016 and contended that they are in possession and enjoyment of the suit schedule property. The said aspect of the matter has not been considered by the Trial Court while granting police protection. He further contended that the defendants are in possession and enjoyment of the suit schedule property till today as lawful owners. Therefore, he stated that at this stage, the impugned order passed by the Trial Court granting police protection is erroneous. Therefore he sought to quash the impugned order by allowing the Writ Petition.
10. In view of the aforesaid contentions urged by the learned counsel for the petitioners, the only point that arises for consideration in this writ petition, is;
“Whether the impugned order passed by the Trial Court allowing IA No.2 granting police protection in favour of the plaintiffs to implement the order of Temporary Injunction granted on 12.02.2016 is justified in the facts and circumstances of the present case?”
11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and perused the entire material on record.
12. It is an undisputed fact that the respondents/plaintiffs filed a suit in OS No.216/2015 before the Additional Civil Judge, Channapatna seeking permanent injunction in respect of the suit schedule property claiming that they are the owners of the suit property by virtue of a registered sale deed dated 07.01.1949 and all the documents have been entered in their names.
13. The defendants denied the entire plaint averments contending that the suit schedule property is their ancestral property and the plaintiffs were never in possession of the suit schedule property.
14. It is an undisputed fact that, after hearing both the parties, the Trial Court by its order dated 12.02.2016 recorded a specific finding that the plaintiffs have made out prima-facie case for grant of temporary injunction and the balance of convenience lies in favour of the plaintiff. Accordingly, the Trial Court granted injunction. It is also not in dispute that, against the said order passed by the Trial Court on IA No.1, the defendants filed MA No.2/2016 before the Senior Civil Judge Court, Channapatna and till today, there is no interim order staying the operation of the order passed by the Trial Court dated 12.02.2016.
15. It is the specific case of the plaintiffs that inspite of the order granting Temporary Injunction, the defendants are trying to interfere with the possession of the suit schedule property on 14.07.2016 and inspite of the plaintiff lodging a police complaint before the jurisdictional police, the police refused to give police protection on the ground that there is no direction to the police. Therefore, they have filed IA No.2 under section 151 of the Code of Civil Procedure, 1908.
16. The very contention of the learned counsel for the petitioners that the defendants are in possession and enjoyment of the suit schedule property clearly indicates that defendants are interfering with the possession of the plaintiffs inspite of granting Temporary Injunction. Admittedly, there is no interim order passed by the lower appellate Court in MA No.2/2016. Therefore, the Trial Court allowed the present application.
17. The Trial Court considering the application and objections filed by both the parties, recorded specific finding that, thus the very challenge to the application by the defendants clearly establish that they are interfering with the possession of the plaintiff. On perusal of the contentions raised by the defendants, the Trial Court held that it is just and necessary to give protection to the plaintiffs to implement the interim order of temporary injunction granted in favour of the plaintiffs.
18. It is also not in dispute that in view of the dictum of this court in the case of Karisiddamma & ors. Vs. Sannakenchamma reported in ILR 2010 KAR 1197 that when the injunction granted by the Trial Court and there is violation by the parties proves that there is violation of the injunction, it is the duty of the Court to protect its own order, therefore, the Trial Court was justified in allowing IA No.2 filed by the plaintiffs under section 151 of C.P.C., to provide police protection.
19. Accordingly, by the impugned order dated 19.11.2016, the Trial Court allowed the IA No.2 and directed the Police Sub Inspector of M.K.Doddi police Station to give police protection to implement the order dated 12.02.2016. The same is in accordance with law and the defendants/petitioners have not made out any case to interfere with the impugned order by exercising the jurisdiction under Article 227 of the Constitution of India. Accordingly, the Writ Petition is dismissed.
20. However, the learned counsel for the petitioners submitted that though he has filed application before the lower appellate Court for interim prayer, it has not considered the I.A. It is for the Lower Appellate Court to consider and pass orders on the said IA, in accordance with law.
SD/- JUDGE KMV/PN*