IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION No.22699/2015 (GM-CPC) BETWEEN:
LANKEGOWDA S/O. LATE HANUMEGOWDA, AGED ABOUT 67 YEARS, BIDARE KAVAL, GANDASI HOBLI, ARSIKERE TALUK, HASSAN DISTRICT – 573 119. ... PETITIONER (BY SRI: H.C. SHIVARAMU, ADVOCATE) AND:
1. NAGARATNAMMA W/O. LATE BHEEMEGOWDA, AGED BOUT 62 YEARS, 2. BASAVARAJA, S/O. LATE BHEEMEGOWDA, AGED ABOUT 37 YEARS, BOTH ARE RESIDING AT BIDARE KAVAL, GANDSI HOBLI, ARSIKERE TALUK, HASSAN DISTRICT – 573 119.
3. GANGEGOWDA S/O. LATE JAVAREGOWDA, AGED ABOUT 52 YEARS, HULLENAHALLI, KEMBALUR POST, BAGURU HOBLI, CAHNNARAYAPATNA TALUK, HASSAN DISTRICT – 573 111. ... RESPONDENTS (BY SRI: H.T. JAGADEESH, ADVOCATE FOR R-1 TO R-3) ***** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.09.04.2015 PASSED IN MA.NO.7/2014 ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND JMFC ARASIKERE VIDE ANNEX-G AND ETC., THIS PETITION COMING ON FOR PRILIMINARY HEARING IN ‘B’ GROUP THIS DAY, COURT MADE THE FOLLOWING:
O R D E R Though the writ petition is listed for preliminary hearing in ‘B’ group, with the consent of learned counsel on both sides, it is heard finally.
2. Petitioner herein is the plaintiff in O.S. No.403/2013, which is pending on the file of the II Addl. Civil Judge (Jr.Dn.) at Arsikere. The said suit has been filed by the petitioner seeking a declaration that he has a right of way as an easementary right and a consequential relief of permanent injunction. Along with the plaint, petitioner has filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) seeking an order of temporary injunction against the defendants, restraining them from interfering with his easementary right. By order dated 11/08/2014, the trial Court allowed the said application. Being aggrieved, respondents herein preferred M.A.No.7/2014 before the Court of Senior Civil Judge and JMFC at Arsikere. By the impugned order dated 09/04/2015, the first appellate Court has allowed the appeal and dismissed the application filed by the petitioner herein. Being aggrieved, the plaintiff in the suit has preferred this writ petition.
3. I have heard learned counsel for petitioner and learned counsel for the respondents as well as perused the material on record.
4. It is noted that even before the trial Court, a Commissioner was appointed to visit the spot and to file a report as per the memo of instructions issued by the plaintiff and defendants. The Taluk Surveyor was appointed as a Commissioner and has filed the report, which has been considered by both the Courts below. On considering the said report, the trial Court has held that the Court Commissioner has answered the questions submitted by the plaintiff to the Commissioner by way of memorandum of instructions in favour of the Commissioner. Taking into consideration the report of the Commissioner that there is, what is called as “thirugadalu rasthe”, the trial Court allowed the application restraining the defendants from interfering with the plaintiff’s easementary right.
5. However, while considering the very same Commissioner’s Report, the appellate Court has stated that no reliance could be placed on the rough sketch submitted along with the Commissioner’s Report that there is an alternative way to reach plaintiff’s land from Karimanahalli Village. That the easementary right sought by the plaintiff is not an easement of necessity, as he has an access to his house by an alternative road and on that basis, the appellate Court allowed the appeal and dismissed the application filed under Order XXXIX Rules 1 and 2 of CPC. Further, the appellate Court has also opined that the trial Court has not considered the balance of convenience and irreparable loss as well as injury that is caused to the plaintiff, if an order of temporary injunction is not granted.
6. On reading the judgment of the first appellate Court, it is noted that the said Court has transgressed the realm of consideration that has to be made while considering the application filed under Order XXXIX Rules 1 and 2 of CPC. The first appellate Court could not have concluded that the plaintiff has no easementary right of necessity or that there is an alternative way and therefore, he cannot claim such an easementary right. The same would imply a pre-judging of the suit itself. Further, the first appellate Court is also not right in holding that the trial Court has not considered on whom the balance of convenience and irreparable loss would lie, before granting the interlocutory injunction as I find that the trial Court has, indeed, considered the said aspect of the matter.
7. This Court, on 29/09/2015, has directed both sides to maintain status quo in the suit property as it existed on that day. The said order is in operation.
8. In the circumstances, the impugned order passed by the first appellate Court is quashed and the order passed by the trial court is restored. The respondents are restrained from interfering with the petitioner’s right to use the way, by way of an easementary right and at the same time, the petitioner is also restrained from misusing the said easementary right thereby, prejudicing the right, title and interest of the defendants in the suit, pending disposal of the suit.
9. The writ petition is allowed in the aforesaid terms. No costs.
10. At this stage, learned counsel for the respondents submits that the suit is of the year 2013 and that a direction may be issued to the trial court to dispose of the suit expeditiously.
11. In light of the said submission, the parties to the suit are directed to co-operate with the trial court for expeditious disposal of the suit.
Sd/- JUDGE S*