IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.44557/2018 (GM-CPC) BETWEEN:
1. CHANNABASAPPA H., S/O RAMACHANDRAPPA, AGED ABOUT 64 YEARS, HIRESHAKUNA, KASABA HOBLI, SORABA TALUK – 577 429, SHIVAMOGGA DISTRICT.
2. VIMALAMMA, W/O CHANNABASAPPA H., AGED ABOUT 54 YEARS, HIRESHAKUNA, KASABA HOBLI, SORABA TALUK – 577 429, SHIVAMOGGA DISTRICT. ... PETITIONERS (BY SRI S.V.PRAKASH, ADV.) AND:
1. CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001.
2. PRINCIAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001.
3. DEPUTY COMMISSIONER, SHIVAMOGGA DISTRICT, SHIVAMOGGA – 577 201.
4. ASSISTANT COMMISSIONER, SAGAR SUB DIVISION, SAGAR – 577 401, SHIVAMOGGA DISTRICT.
5. TAHASILDHAR/MUZARAI OFFICER, SORABA – 577 429, SORABA TALUK, SHIVAMOGGA DISTRICT.
6. MANAGING DIRECTOR, KARNATAKA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD., ADMINISTRATIVE OFFICE BUILDING, RAJAJINAGAR INDUSTRIAL TOWN, BENGALURU – 560 023.
7. ASSISTANT GENERAL MANAGER (INDUSTRIAL ZONE), KARNATAKA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD., ADMINISTRATIVE OFFICE BUILDING, SHIVAMOGGA – 577 201. ... RESPONDENTS (BY SRI.S.CHANDRASHEKARAIAH, HCGP FOR R1 TO R5; NOTICE TO R6 & 7 DISPENSED WITH VIDE ORDER DTED 21.03.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 29.08.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE & JMFC, SORABA IN M.A.NO.14/2017 OVERTURNING THE ORDER DATED 26.07.2017 HANDED DOWN BY THE LEARNED PRINCIPAL CIVIL JUDGE & JMFC, SORABA ON IA NO.IV IN O.S.NO.179/2016 PRODUCED AS PER ANNEXURE – E TO THE WRIT PETITION AND CONSEQUENTLY RESTORE THE ORDER DATED 26.07.2017 HANDED DOWN BY THE LEARNED PRINCIPAL CIVIL JUDGE & JMFC, SORABA ON I.A.NO.IV IN O.S.NO.179/2016 AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs filed the present writ petition against the order dated 29.08.2018 made in M.A.No.14/2017 on the file of the Senior Civil Judge & JMFC, Soraba allowing the appeal filed by the defendants by setting aside the matter with a direction to the Trial Court to receive objections of the appellants/defendants and reconsider IA No.4 thereafter as per law.
2. Plaintiffs have filed the suit for permanent injunction against the defendants from interfering with peaceful possession over the suit schedule property on the ground that they are in possession of the suit property for more than 40 years. They also filed application for temporary injunction. In spite of granting sufficient time, the defendants not filed any objections to I.A. No.4. therefore, the Trial Court proceeded to consider the application I.A.No.4 filed by the plaintiffs for temporary injunction and recorded the findings that the plaintiffs have made out prima facie case for temporary injunction and the balance of convenience lies in favour of the plaintiffs. Accordingly by its order dated 26.07.2017 allowed I.A.No.4 filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC granting an order of temporary injunction restraining the defendants from interfering with peaceful possession of the plaintiffs over the suit schedule property and restrained them from dispossessing the plaintiffs from the suit schedule property without due process of law and also restrained from interfering and disturbing the plaintiffs peaceful possession of the suit schedule property till the disposal of the suit.
3. Aggrieved by the said order, the defendants No. 1 to 6, the present respondents filed M.A.No.14/2017, before the learned Senior Civil Judge & JMFC. The lower appellate Court while answering issue Nos.1 & 2 held that the plaintiffs have made out prima facie case and still proceeded to set aside the order passed by the Trial Court mainly on the ground that defendants were not given opportunity to put forth their objections, several contentions raised by them has remained unconsidered. Thus, there has been an order as though it is an exparte order. Therefore, documents now produced by the defendants and their objections are considered, a fair order would be passed. No injustice will be caused to the plaintiffs if the matter is heard afresh after considering objections and documents produced by the defendants. Accordingly allowed the appeal preferred by the defendants and directed the Trial court to receive objections to be filed by the defendants and to reconsider IA No.4 afresh. Hence, this writ petition is filed.
4. I have learned counsel for the parties to the lis.
5. Sri S.V. Prakash, learned counsel for the plaintiffs contented that the impugned order passed by the lower appellate Court to receive the objections filed by the defendants is erroneous and is liable to be quashed. He further contended that when lower appellate court also concurred with the findings recorded by the Court below, holding that the plaintiffs have made prima facie case, balance of convenience lies in favour of the plaintiffs and has rightly granted temporary injunction, only on the ground that there was no opportunity given to the respondents-defendants to put forth their objections, the lower appellate Court proceeded in setting aside the order passed by the trial court and remanded the matter to receive the objections, but has not protected the interest of the plaintiffs, till the respondents-defendants file the objections to I.A. No.4 before the trial court and till that objections is considered by the trial court the defendants-present respondents shall not dispossess the plaintiffs.
6. He further contended that the lower appellate Court categorically recorded the findings that inspite of granting sufficient time, defendants have not filed their objections to I.A. No.4, therefore the trial Court was justified in granting temporary injunction based on the material on record. Such a order of the Trial Court cannot be interfered lightly by the lower appellate Court unless it is perverse, capricious.
Admittedly no such finding is recorded by the lower appellate court and proceeded to allow the appeal only on the ground that sufficient opportunity was not given to the defendants to file their objections. Therefore, he sought to allow the writ petition.
7. Per contra, Sri S. Chandrashekaraiah, HCGP justifies the impugned order and contended that based on documents produced before the Lower appellate Court, Lower Appellate Court has rightly remanded the matter for reconsideration. Hence, he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is undisputed fact that plaintiffs filed suit for permanent injunction claiming that they are in possession of the suit schedule property without any interference for more than 40 years. The Trial Court considered the same and it is also not in dispute that inspite of granting sufficient time by the Trial Court, respondents-defendants did not file their objections to I.A.No.4, therefore, the trial court considering the material on record, recorded the findings that plaintiffs have made out prima facie case and temporary injunction was granted to the plaintiffs as prayed for.
9. The lower appellate Court concurred with the findings of fact with regard to possession and prima facie has allowed the appeal only on the ground that no opportunity is provided to the respondents-defendants to file objections on I.A.No.4, if that was the case, lower appellate court ought to have protected the interest of the plaintiffs till its consideration on I.A.No.4. The same has not been done in the present case.
10. For the reasons stated above, the writ petition is allowed. The impugned order dated 29.08.2018 made in M.A.No.14/2017 is hereby modified directing the defendants-respondents to file objections to I.A.No.4 as ordered by the lower appellate Court and till such consideration of the same by the trial court the defendants-respondents shall not interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs.
Sd/- JUDGE HR