IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.12198/2017 (GM-CPC) BETWEEN:
1. SHARADAMMA WIFE OF JAVAREGOWDA AGED ABOUT 52 YEARS 2. NARASEGOWDA SON OF RAMEGOWDA AGED ABOUT 62 YEARS 3. KULLEGOWDA SON OF RAMEGOWDA AGED ABOUT 52 YEARS 4. JAVAREGOWDA SON OF KEMPEGOWDA AGED ABOUT 67 YEARS 5. REVANNAGOWDA SON OF NARASEGOWDA AGED ABOUT 57 YEARS ALL ARE RESIDING AT GANGOOR VILLAGE RAMANATHAPURA HOBLI ARKALGUD TALUK HASSAN DISTRICT 573 201 ... PETITIONERS (BY SMT. NIRMALA JAYARAM. ADV.) AND:
K. CHANNEGOWDA SON OF KAMBANARASEGOWDA AGED ABOUT 77 YEARS RESIDENT OF GANGOOR VILLAGE RAMANATHAPURA HOBLI ARKALGUD TALUK HASSAN DISTRICT 573 201 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08.07.2016 IN O.S.NO.S. 78/2015 PASSED BY CIVIL JUDGE AND JMFC ARKALGUD AT ANNEX-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed present writ petition against the order dated 08.07.2016 on I.A. in O.S.NO.78/2015 allowing the application filed under Order 13 Rule 1 & 2 C.P.C. granting police protection to the plaintiff to implement the order passed by the Trial Court dated 09.02.2016.
2. Respondent-plaintiff filed suit for permanent injunction in respect of suit schedule property contending that he is the owner of the suit schedule property and defendants are interfering with his peaceful possession and enjoyment of the same.
3. Defendants filed written statement and denied the plaint averments and contended that plaintiff in the guise of filing suit is interfering with the peaceful possession of the defendants and sought for dismissal of the suit. The plaintiff filed I.A. under Order 13 Rule 1 & 2 of C.P.C. reiterating the averments made in the plaint restraining the defendants or anybody interfering with the plaintiff’s possession and enjoyment over the suit schedule property, cutting down the trees in the suit schedule property.
4. The Trial Court granted Status-Quo till the appearance of the defendants. Thereafter, the Trial Court after considering the application and hearing both the parties, by its order dated 09.02.2016 allowed the application filed by the plaintiff and granted temporary injunction restraining the defendants from disturbing the peaceful possession and enjoyment of the plaintiff over the suit schedule property till the disposal of the case. Against the said order, petitioners-defendants filed M.A.No.5/2016.
5. The learned counsel appearing for the petitioners fairly submits that no interim order was granted in the said appeal. Thereafter on 23.06.2016, plaintiff filed application under Section 151 of C.P.C. seeking Police protection, alleging that inspite of granting temporary injunction, defendants are interfering with his possession and trying to remove the crops and cut down the trees. The said application was resisted by the defendants by filing their objections. The Trial Court considering the application and also the objection filed by the defendants, by the impugned order dated 8.07.2016 allowed the application filed by the plaintiff and granted Police protection as prayed for. Being aggrieved by the same, defendants are before this Court in this writ petition.
6. Smt. Nirmala Jayaram, learned counsel for the petitioners contented that the impugned order passed the Court below, granting Police protection is erroneous and contrary to material on record and liable to be quashed. She further submits that, if there is any violation by the defendants, it is open for the plaintiff to seek the remedy under Order 39 Rule 2A C.P.C. Therefore, the Police protection granted is arbitrary in nature. She further submits that when the trial court granted temporary injunction and defendants filed M.A.5/2016 during the pendency of the miscellaneous appeal, Police protection ought not to have been granted. She further contended that defendants are still in possession of the suit schedule property. Therefore she sought to allow the writ petition.
7. Having heard the learned counsel for the petitioner, the undisputed fact is that the plaintiff filed the suit for permanent injunction against the defendants in respect of suit schedule property. After hearing both the parties, Trial Court by the order dated 09.06.2016 granted temporary injunction in favour of the plaintiff restraining the defendants from interfering with the possession and enjoyment of the plaintiff’s suit schedule property. Admittedly, against the said order defendants filed M.A.
No.5/2016, even till today there is no interim order granted by the Appellate Court. It is also not in dispute that the plaintiff filed application alleging that inspite of interim order granted by the court below which is still in force, defendants are trying to interfere with plaintiff’s possession over suit property and trying to cut and remove the crops and standing trees and without the aid of the Police, it is very difficult for the plaintiff to implement the order of injunction. Though objections was filed, trial Court has recorded the findings that after contest and on merits, the said application was allowed. There is no materials produced by the defendant to show that, the defendant has challenged the order passed on said I.A. and said order is still in force. When the plaintiff is entitled for temporary injunction order and injunction order is already granted in favour of the plaintiff there is no bar to order for Police protection for implementation of order passed on I.A.No.1 otherwise the plaintiff could not enjoy the fruits of order passed on I.A. and hence granted Police protection.
8. It is also not in dispute though defendants filed M.A.No.5/2016 before the Appellate Court, the Appellate court has not granted any interim order and temporary injunction granted by the Trial Court has reached its finality. When the defendants claimed that they are in possession of the suit property which amounts to interference of the possession of the plaintiff and it is in violation of the order of the temporary injunction passed by the Trial Court, Trial Court is justified in granting Police protection by allowing the application filed under Section 151 of C.P.C. The petitioners-defendants have not made out prima facie case to interfere with the impugned order passed by the Trial Court and trial Court in exercise of power under Article 227 of the Constitution of India.
Accordingly, writ petition stands dismissed.
Sd/- JUDGE HR