IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 3250 OF 2017 (GM-CPC) BETWEEN:
SMT. BRUNDA CHANDRASHEKAR, W/O LATE CHANDRASHEKAR, AGED ABOUT 47 YEARS, OCC: COFFEE PLANTERS, R/O CHINNIGA VILLAGE, JANNAPURA POST, MUDIGERE TALUK, CHIKKAMAGALUR DISTRICT.
(BY SRI. S P SHANKAR, SENIOR ADVOCATE FOR SRI. MAMATA G KULKARNI, ADVOCATE) AND:
1. SRI. C S PRAKASH, S/O LATE C D SHIVAPPA GOWDA, AGED ABOUT 56 YEARS, SINCE DECEASED REPRESENTED BY L.Rs: 1A. SMT. SARASWATHI, W/O LATE C S PRAKASH, AGED ABOUT 58 YEARS, 1B. SMT. C P PRIYA, D/O LATE C S PRAKASH, AGED ABOUT 32 YEARS, … PETITIONER 1C. SMT. C P PREETHA, D/O LATE C S PRAKASH, AGED ABOUT 30 YEARS, ALL ARE RESIDING AT CHINNAGA VILLAGE, JANNAPURA POST, MUDIGERE TALUK, CHIKKAMAGALUR DISTRICT.
AMENDED AS PER V.C.O DATED 12.04.2019. (BY SRI. P P HEGDE, ADVOCATE) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, AT MUDIGERE IN O.S.NO.156/2015 DATED 05.01.2017 VIDE ANNEX-E RESTRAINING THE RESPONDENT FROM OBSTRUCTING THE PETITIONER IN PUTTING UP AN IRON GATE AT POINT W.V. AS PER THE SKETCH SUBMITTED BY THE SURVEY COMMISSIONER IN O.S.NO.107/2009 AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the defendant against the order dated 05.01.2017 in O.S.No.156/2015 and for issuance of mandamus directing the Appellate Court to consider application for stay in M.A. No.1/2017.
2. The respondent-plaintiff filed O.S.No.156/2015 for temporary injunction restraining the defendant in respect of suit schedule properties.
3. Defendant filed written statement denying the plaint averments and sought for dismissal of the suit.
4. On the application filed by the plaintiff, the trial Court by order dated 05.01.2017 allowed I.A.No.3 and granted temporary injunction restraining the defendant from obstructing the plaintiff in putting up an iron gate at point W.V. as per the sketch submitted by the Survey Commissioner in O.S.No.107/2009 pending disposal of the suit. Aggrieved by the said order, the defendant filed M.A.No.1/2017. The lower Appellate Court without considering the material on record issued notice. Hence the present writ petition is filed.
5. Sri S.P.Shankar, learned Senior Counsel for the petitioner-defendant contended with vehemence that the impugned order passed by the lower Appellate Court in issuing notice without considering the interim prayer amounts to rejection of interim prayer. He further contended that the trial Court could not have granted temporary injunction to the plaintiff. When M.A. No.1/2017 came to be filed by the petitioner, the trial Court either in order to accept to grant stay or to reject stay, should consider the application and objections on merits, but without doing so the trial Court had issued notice which amounts to violation of rights of the parties. Therefore he sought for allowing of the writ petition. He further submits that the Appellate Court may be directed to dispose of the main appeal itself since M.A.No.1/2017 is filed for grant of injunction. He would also contend that this Court while issuing emergent notice on 27.01.2017, pending disposal of M.A.No.1/2017 restrained the present respondent-plaintiff from interfering with petitioner’s right to use ‘B’ schedule property mentioned in O.S.No.107/2009 and declared as to be used as a road in order to reach ‘A’ schedule property and the defendant in the said suit who is the respondent herein not having any right to suit schedule property in that suit. It was also made clear that the respondent is restrained from putting up a gate or any other structure obstructing the ingress and egress of the petitioner through ‘B’ schedule property which is stated to be the only passage available for the petitioner to approach her house. Hence the learned senior counsel submits that the injunction may be continued till disposal of main appeal.
6. Per contra, Sri P.P.Hegde, learned counsel on taking notice to the L.Rs. of the deceased respondent submitted that the trial Court considering the material on record has by order dated 05.01.2015 has granted injunction as prayed for by the plaintiff restraining the defendant from obstructing the plaintiff in putting up an iron gate at point W.V. as per the sketch submitted by the Survey Commissioner in O.S.No.107/2009 pending disposal of the suit. He would fairly submit that the lower Appellate Court ought to have disposed of the main appeal instead of issuing notice. He fairly submitted that the lower Appellate Court be directed to dispose of the main appeal itself.
7. The fair submission of the learned counsel is placed on record.
8. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiff filed suit for temporary injunction restraining the defendant from obstructing the plaintiff in putting up an iron gate at point W.V. as per the sketch submitted by the Survey Commissioner. The defendants filed written statement denying the plaint averments. The trial Court considering the application and objections and the material produced, by order dated 05.01.2017 granted temporary injunction when an appeal is filed by the defendant against the said order, the Appellate Court ought to have considered the application for interim stay instead of issuing notice.
9. In view of the aforesaid submissions made by the learned counsel, for the parties it is suffice to direct the Appellate Court to decide M.A.No.1/2017 on merits and till such disposal by the lower Appellate Court, the interim order granted by this Court on 27.01.2017 shall enure to the benefit of the petitioner and the lower Court is directed to decide the appeal within a period of four months subject to Co-operation of both the parties to the lis.
All the contentions urged by the parties are kept open to be considered in M.A.No.1/2017. The Appellate Court shall decide the appeal independently in accordance with law.
Sd/- JUDGE Snb/