IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.27743 OF 2019 (GM-CPC) BETWEEN 1. EARNEST PETER D.C, S/O DAVID CHANDRASHEKAR, AGED ABOUT 56 YEARS, SECRETARY, SAINT THOMAS CHURCH, B.H.ROAD, SHIVAMOGGA – 577 201.
2. B.YESUDAS, S/O LATE B.MOSES, AGED ABOUT 74 YEARS, PRESIDENT, DISTRICT CHRISTIAN FEDERATION, RESIDENT OF ASHOKANAGARA, 1ST CROSS, SHIVAMOGGA – 577 201. ... PETITIONERS (BY SRI.S.V.PRAKASH, ADVOCATE) AND 1. THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, DR.B.R.AMBEDKAR VEEDHI, BENGALURU – 560 001.
2. THE SUPERINTENDENT ENGINEER, KARNATAKA WATER BOARD, K.E.B CIRCLE, BALRAJ URS ROAD, SHIVAMOGGA – 577 201.
3. SHIVAMOGGA MAHANAGARA PALIKE, REPRESENTED BY ITS COMMISSIONER, B.H.ROAD, SHIVAMOGGA – 577201. ... RESPONDENTS (BY SRI.A.V.GANGADARAPPA, ADVOCATE FOR C/R3 & R2; GA SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 01.06.2019 PASSED BY THE COURT OF LEARNED I ADDITONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA IN M.A.NO.2/2019 PRODUCED AS PER ANNEXURE-H CONFIRMING THE ORDER DATED 04.01.2019 HANDED DOWN BY THE COURT OF LEARNED III ADDITIONAL CIVIL JUDGE & JMFC, SHIVAMOGGA ON I.A.NO.III IN O.S.NO.721/2018 PRODUCED AS PER ANNEXURE-G 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 Petitioners being the plaintiffs in an injunctive suit in O.S.No.721/2018 have knocked at the doors of writ court for assailing the order dated 01.06.2019, a copy whereof is at Annexure-H, whereby the learned Ist Addl. Senior Civil Judge, Shivamogga has rejected Miscellanous Appeal No.2/2019, thereby confirming the order dated 04.01.2019 made by the learned III Addl. Civil Judge, Shivamogga rejecting their I.A.No.3 filed under Order XXXIX Rules 1 & 2 of CPC, 1908, wherein they had sought for an order of temporary injunction. After service of notice the respondents have entered appearance through their senior panel counsel.
2. The matter was argued hotly for some time by both the counsel. On the suggestion of the Court, the respondents having agreed to grant reprieve to the petitioners, the 2nd respondent has filed an affidavit dated 03.08.2019 which reads as under:
“AFFIDAVIT I, S. Ramesh S/o late Sheshappa Gowda, aged about 56 years, Executive Engineer, Karnataka Urban Water Supply & Drainage Board, O M Division, Shimoga do hereby solemnly affirm and state as follows:
1. I am the Executive Engineer of 2nd respondent. Since there is no post of Superintendent Engineer as stated in the cause title and as I am in charge of the execution of the work relating to construction of water tank I am swearing to this affidavit. The contents of this affidavit are base on materials available with the 2nd respondent office and the same are true and correct to the best of knowledge, information and belief.
2. I state that Karnataka Urban Water Supply & Drainage Board is not going to dig the earth or destroy the tomb and will not disturb the conditions prevailing inside the burial ground. The pipelines leading to the water tank and its outlet will be brought in and taken out from the road situated on either side of the area where construction work is going on. Accordingly the writ petition could be disposed off in terms of the above undertake.
I, the deponent above named do hereby declare that the statements made in paragraphs 1 and 2 of this affidavit are true and correct to the best of my knowledge, information and belief.”
3. The learned panel counsel for the respondents has filed a memo dated 06.08.2019 to the effect that the stand taken by the 2nd respondent as reflected in the aforesaid affidavit shall be the stand of 3rd respondent as well. The said memo reads as under:
“ MEMO 3rd respondent submits that the stand taken by the 2nd respondent will be the stand of the 3rd respondent & hence W.P. may be disposed of in terms of Affidavit filed by 2nd respondent.”
4. The learned counsel for the petitioner having argued the matter vehemently has filed a memo dated 06.08.2019 which reads as under:
“ MEMO The petitioners submit that the 2nd respondent today filed Affidavit to the effect that it doesn’t dig the earth or destroy the tomb and would not disturb the conditions prevailing inside burial ground and pipelines leading to the water tank & outlets would laid the road, the said affidavit filed by the 2nd respondent has been accepted by the 3rd respondent by filing memo. The petitioners have no objections to dispose of the writ petition on the basis of the affidavit of 2nd respondent and the memo filed by the 3rd respondent.”
In the above circumstances, nothing survives for consideration in this writ petition and also in the subject suit in O.S.No.721/2018 since a substantial relief in terms of the undertaking of the respondents as above, has been granted to the petitioners, and accordingly both the writ petition and the suit stand disposed off.
The Registry shall send a copy of this judgment to the III Addl. Civil Judge, Shivamogga for the suit record.
No costs.
Sd/- JUDGE cbc