IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.56059/2018 & WRIT PETITION Nos.3394-3395/2019(GM-CPC) BETWEEN:
M/S K. V. LAKEFRONT APARTMENT OWNERS WELFARE ASSOCIATION, NO.8/3, NEXT TO OM SHAKTHI TEMPLE CHANDRANAGAR, KUMARASWAMY LAYOUT 2ND STAGE, BENGALURU-560111.
REPRESENTED BY ITS SECRETARY SRI.S.N.RAMAKRISHNA.
(BY SRI SHIVANNA A. G., ADVOCATE) AND:
1. SRI PAPANI SREERAM S/O SRI. N.P.BHUJAGENDRA NAIDU, AGED ABOUT 42 YEARS, RESIDING AT 4-1270, OPP: MILK DIARY, VELLORE ROAD, GREAMSPET, CHITOOR-517002.
ANDHRA PRADESH.
2. SHRI. PAPANI PRASAD S/O SRI. N.P. BHUJAGENDRA NAIDU, AGED ABOUT 44 YEARS, SITE NO.9, SITE NO.16 AND 25, MEENAKSHI LAYOUT, KALEENAAGRAHARA, B.G.ROAD, BANGALORE-560076.
... PETITIONER 3. SHRI. M SRIDHAR RAO S/O M. KRISHNAMRAJU, NO.14, DR. P. VIVEKANANDA LAYOUT, 7TH PHASE, JP NAGAR, BENGALURU-560078 4. SHRI. BHUJAGENDRA NAIDU S/O SRI. DORASWAMY NAIDU, AGED ABOUT 69 YEARS NO.4-1270, OPP MILK DIARY, VELLORE ROAD, GREAMSPET, CHITOOR-517002.
ANDHRA PRADESH.
5. SMT. PAMPANI PRAMEELA AGED ABOUT 64 YEARS, W/O N.O BHUJAGENDRA RAO NO.4-1270, OPP MILK DIARY, VELLORE ROAD, GREAMSPET, CHITOOR-517002.
ANDHRA PRADESH.
6. M/S SRI K.V. INFRA A REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNERS, a) SRI. S. MURALI KUMAR, S/O KRISHNAM NAIDU, AGED ABOUT 44 YERS, RESIDING AT NO.97/6, 3RD CROSS, 5TH BLOCK, BHUVANESHWARI NAGAR, BSK 3RD STAGE, BANGALORE-560085.
b) SRI. SURESH BABU C S/O SUBRAMANYA NAIDU, AGED ABOUT 38 YEARS, RESIDING AT NO.2395-E, FLAT NO.401, 3RD FLOOR, 18TH MAIN ROAD, KUMARASWAMY LAYOUT 2ND STAGE, BANGALORE-78.
7. SMT. PAPANI MADHURI W/O SHRI SOAPALLIVARA PRASAD AGED ABOUT 52 YEARS, C/O BHUJAGENDRA NAIDU, NO.4-1270, OPP MILK DIARY, VELLORE ROAD, GRAMSPET, CHITOOR-517002.
ANDHRA PRADESH.
8. THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE, CORPORATION CIRCLE, N.R.SQUARE, BENGALURU-560068.
9. THE ASSISTANT DIRECTOR OF TOWN PLANNING BRUHATH BENGALURU MAHANAGARA PALIKE, BOMMANAHALLI, BEGUR MAIN ROAD, OLD CMC BUILDING, BENGALURU-560068 10. THE EXECUTIVE ENGINEER (SOUTH) BBMP, NEXT TO KONANAKUNTE POLICE STATION, NO.48, 13TH MAIN ROAD, JAGHRUTHI COLONY, JP NAGAR, 7TH PHASE, PUTTENAHALLI, BENGALURU-560078.
11. THE ASSISTANT EXECUTIVE ENGINEER BBMP, YELACHENAHALLI SUB DIVISION, NEAR SUBRAMANYAPURA POLICE STATION, UTTARAHALLI SUB DIVISION, BENGALURU-560051.
... RESPONDENTS (BY SRI S. K. ACHARYA, ADVOCATE FOR R1, R3-R5 & R7; R6(a) & R6(b), R9-R11 ARE SERVED UNREPRESENTED; NOTICE TO R2, R8 & R10 ARE DISPENSED WITH VIDE ORDER DATED 25.03.2019) … THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE TRIAL COURT TO CONSIDER THE I.A.NO.3 AND 4 FOR GRANT OF INTERIM ORDER IN ACCORDANCE WITH LAW IN VIEW OF THE URGENCY IN THE MATTER AS A SAME IS PENDING FOR CONSIDERATION BEFORE THE TRIAL COURT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present petitioner who is plaintiff filed in O.S.No. 7554/2018 against the respondents-defendants for declaration and other consequential declaration of title, mandatory injunction and permanent injunction in respect of suit schedule properties. The plaintiff filed an application – I.A.1 under Section 11(3) of the Bangalore City Civil Court Act for permission to file the above suit before the Vacation Court as the matter was urgent. The said application was allowed and the matter was posted on 22.10.2018 on which date, the trial Court issued notice and suit summons to the Caveators/other defendants returnable by 2.11.2018. Subsequently, some of the defendants represented through their respective Counsel and inspite of service of notice, the learned Judge has not decided applications for temporary injunction. Therefore, the petitioner approached this Court for a direction to the trial Court to consider I.As. 3 and 4 for grant of temporary injunction in accordance with law and in view of the urgency, he has sought for an injunction restraining defendant Nos.3, 5 and 7 from putting up further construction on ‘B’ schedule property which was made in violation of sanctioned plan and licence. He has further sought for an interim injunction directing the respondent Nos.3, 5 and 7 to maintain status quo over the ‘C’ schedule property which is a public road pending disposal of of I.A.4 filed in O.S.No.7554/2018.
2. This Court by the order dated 25.2.2019 while issuing notice to the respondents returnable by today (25.3.2019) directed respondent Nos. 3, 5 and 7 to maintain status quo over the suit ‘C’ schedule property, till the next date of hearing. That is how the present application has been filed by respondent Nos.1, 3 to 5 and 7 for vacating the interim order of status quo granted by this Court.
3. I have heard the learned Counsel for the parties to the lis.
4. Sri A.G. Shivanna, learned Counsel for the petitioner contended that the suit is filed for declaration, mandatory and temporary injunction in respect of the suit schedule properties against the defendants. In view of the urgency, an application came to be filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. The trial Court while issuing notice has not passed any interim order and even after service of notice though some of the defendants were represented, the trial Court has not considered the application nor has passed any orders. Therefore, the petitioner has filed the present writ petitions and this Court had granted an interim order as sought for.
5. Sri S.K. Acharya, learned Counsel for respondent Nos.1, 3 to 5 and 7 submits that though the contesting defendants filed written statement and objections to the application, the petitioner is dragging the matter on the ground that interim order of status quo is granted by this Court and therefore, sought to dismiss the writ petitions.
6. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff had filed a suit for declaration, mandatory injunction and permanent injunction and sought for an interim order claiming urgency. The Court at the first instance issued notice and summons to the Caveator as well as other defendants. Now the contesting defendants have already filed written statement as well as objections, and it is duty of the trial Court to consider the application and pass appropriate orders within the time stipulated as contemplated under Order XXXIX Rule 3-A of the Code of Civil Procedure, but the same has not been done by the trial Court. Therefore, the petitioner was constrained to file these writ petitions seeking interim order and this Court granted the interim order of status quo.
7. Admittedly, the contesting defendants already filed written statement as well as objections and there is no impediment for the trial Court to consider I.As.3 and 4 filed under Order XXXIX Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure and pass appropriate orders after hearing both parties in accordance with the provisions of Order XXXIX Rule 3-A of the Code of Civil Procedure.
8. At this stage, learned Counsel for both parties submit that now the matter is posted on 11.4.2019 and in view of the urgency pleaded, the trial Court is directed to take this matter on 2.4.2019 and after hearing the parties on applications 3 and 4, appropriate orders shall be passed in accordance with law.
9. In view of the above, writ petitions are disposed of directing the trial Court to consider I.As. 3 and 4 for temporary injunction and pass appropriate orders in accordance with law on 2.4.2019 without granting further adjournments. Learned Counsel for the plaintiff and contesting defendants shall proceed with arguments on I.A.s 3 and 4.
10. Till consideration of I.As.3 and 4, the interim order of status quo granted by this Court in respect of the suit ‘C’ schedule property is continued only till 2.4.2019 and the trial Court shall not adjourn the matter on that day at the instance of any of the parties and consider the applications independently based on the pleadings and material documents produced by both parties and pass appropriate orders strictly in accordance with law.
Accordingly, writ petitions are disposed of.
Sd/- Judge Nsu/-