IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.62083/2016 (GM-CPC) BETWEEN:
Dr.M.Venkataswamy, Aged about 50 years, S/o. Muniyappa, R/at No.27, C.M.Layout, Hosapalya Main Road, Yellukunte Extension, Bengaluru-560 068. ... Petitioner (By Sri. Manivannan G., Adv.,) AND:
M.S.Palaksha, Aged about 58 years, S/o.M.K.Shivalingappa, R/at No.14, 7th Main, 22nd Cross, M.C.Layout, Vijayanagara, Bengaluru-560 040. …Respondent (By Sri.Dr.R.Ramachandran, Adv., for C/R) This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated.19.11.2016 passed by the 12th Additional City Civil & Sessions Judge in O.S.No.5233/2015 (CCH-27) Bengaluru and be pleased to dismiss the I.A.No.4 at Annexure-C filed by the respondent under Section 151 of CPC seeking an order of direction to the Sub-Registrar not to register any flats at Annexure-E.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
O R D E R The defendant in O.S. No.5233/2015 on the file of XII Additional City Civil and Sessions Judge (CCH No.27), Bengaluru, has filed the present writ petition against the order dated 19.11.2016 passed on I.A. No.4 whereby the trial Court has allowed the application filed by plaintiff under Section 151 of CPC and directed the Sub Registrar, Bommanahalli not to register the sale of flats in the suit schedule property, which is more fully described in the schedule to the impugned order.
2. The respondent who is the plaintiff before the trial Court has filed the aforesaid suit for declaration of title and mandatory injunction against the defendant to remove the structure being put up illegally in the suit schedule property and thereafter, hand over the possession thereof and also for permanent injunction against the defendant restraining him and their henchmen from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff. The plaintiff has contended he is the absolute owner of the suit schedule property more fully described in schedule to the plaint purchased under registered deed dated 29.7.1994 and is in possession of the same. The defendant has no manner of right, title and interest to interfere with the same.
3. The petitioner-defendant filed written statement denied the plaint averments and contended that the defendant has acquired the property bearing Sy. No.16/2 measuring 1 acre 25 guntas situated at Yellukunte village, Begur Hobli, Bangalore South Taluk, under a registered sale deed dated 22.6.1937 and he has been in possession and enjoyment of the same. The plaintiff is not entitled for any relief and sought for dismissal of the suit.
4. During the pendency of the proceedings, the plaintiff filed an application under Section 151 of CPC to direct the Sub Registrar, Bommanahalli not to register sale of flats being put up in the suit schedule property reiterating the averments made in the plaint. The said application was resisted by the defendant. The trial Court, after considering the entire material on record, by the impugned order dated 19.11.2016 has allowed the application and directed the Sub Registrar, Bommanahalli not to register the sale of flats in the schedule more fully described in the schedule to the order measuring East- West 40 ft. and North-South 30 ft., totally measuring 1200 sq. ft. Hence, the present writ petition is filed.
5. I have heard Sri Manivannan. G, learned counsel for the petitioner.
6. Learned counsel for the petitioner-defendant would contend that the impugned order passed by the trial Court allowing the application granting an order of temporary injunction as prayed for is erroneous, capricious and opposed to the material on record. He would further contend that the respondent-plaintiff has not come to the Court with clean hand and has suppressed the material facts and given wrong boundaries and obtained ex-parte order of injunction not to put up construction even though the construction was almost completed and the petitioner-defendant was residing in different address. Therefore, the order of trial Court cannot be sustained. He would further contend that injunction cannot be granted in respect of unidentified and uncertain property like the suit schedule property. Therefore, question of granting injunction would not arise. Petitioner-defendant has already committed to sell his 40% share of flats i.e., 12 flats and sold 6 flats thereof and with respect to the remaining 6 flats, he has already received substantial amount from the proposed buyers, arranged funds from the private financiers and other finance institution and demanded the petitioner- defendant to sell the property. If the impugned order is not set aside, the petitioner-defendant will be put to great hardship, injury and loss.
7. The respondent-plaintiff filed statement of objection justifying the impugned order passed by the trial Court.
8. Having heard learned counsel for the petitioner- defendant, it is not in dispute that respondent-plaintiff has filed the suit for declaration, permanent and mandatory injunction over the suit schedule property claiming his share under the registered sale deed dated 29.7.1994. The same is disputed by the petitioner- defendant by filing written statement specifically contended that defendant is the owner in possession and enjoyment of suit property bearing Sy. No.16/2 measuring 1 acre 25 guntas of Yellukunte village, Begur Hobli, Bangalore South Taluk, purchased under the registered sale deed dated 22.6.1937 and sought for dismissal. The trial Court considering the application under Order XXXIX, Rules 1 and 2 of CPC granted ex-parte order of temporary injunction on 18.6.2015 against the petitioner- defendant and others and directed the jurisdictional police to stop the construction put up by defendant by virtue of the order of temporary injunction. The police inspector reported that he has communicated the order to the defendant, who did not stop construction over the property. Therefore, the plaintiff filed an application under Order XXXIX Rule 2-A of CPC for willful disobedience of order passed by the trial Court. The said application was numbered as Misc. No.735/2015, which is still pending. In spite of the said application pending and in spite of the order of injunction passed, the petitioner-defendant constructed the flats and alienated the same. Therefore, the respondent-plaintiff was forced to file another application under Section 151 of CPC directing Sub-Registrar, Bommanahalli not to register the sale deed in respect of the flats being constructed over the suit schedule property. The trial Court, considering the application and objections, has passed the impugned order.
9. It is also not in dispute that against the grant of ex-parte order of injunction, the petitioner-defendant filed MFA No.889/2018 before this Court, wherein no interim order is granted. An attempt is made by learned counsel for the petitioner-defendant contending that the property in question is not at all in existence. If that is so, the petitioner-defendant cannot be said to be aggrieved by the order passed by the trial Court directing the Sub Registrar, Bommanahalli not to register the sale of flats in the suit schedule property more fully described in schedule 30 x 40 ft. (1200 sq. ft.). When the injunction is operating and when the application filed the plaintiff under Order XXXIX Rule 2-A of CPC for willful disobedience of order passed by the trial Court, which was numbered as Misc. No.735/2015, is still pending, the defendant has proceeded with the construction and sale of flats in the suit schedule property. In view of the above, the impugned order passed by the trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of powers under Article 227 of Constitution of India. Accordingly, the writ petition is dismissed.
Cs/-
CT-RG Sd/- JUDGE