IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.63552 OF 2016 (GM-CPC) Between:
SHIVARUDRAIAH, AGED ABOUT 57 YEARS, S/O MARAIAH, R/O HEGGERE VILLAGE, KASABA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT – 572 101. …PETITIONER (BY SRI. SHIVARAMU H.C., ADVOCATE) AND:
MANEESH B.S., AGED ABOUT 38 YEARS, S/O G.C. BYRAIAH, R/O SIDDARTHANAGAR, (GOLLAHALLI), KASABA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT – 572 101. ... RESPONDENT (BY SRI.K. SURENDRA BABU, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.09.2016 PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND JMFC AT TUMKUR IN M.A.NO.26/2016 AT ANNEX-H AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is the defendant before the trial Court has challenged the order passed in M.A.No.26/2016 whereby, while allowing the appeal, the Appellate Court has set aside the order passed by the Principal Civil Judge and JMFC, Tumkuru, on I.A.No.1 filed by the plaintiff which had been allowed by the trial Court. The suit in O.S.No.1132/2015 had been filed seeking for relief of declaration. Plaintiff claims to be the owner of the suit schedule property, has sought for appropriate relief to declare that the documents that have come into existence in the name of the defendant and others in respect of the suit schedule properties do not bind the plaintiff and for a relief of permanent injunction restraining the defendant from putting up any sort of permanent construction on the suit schedule property. The trial Court while considering the application filed by the plaintiff, by order dated 01.08.2016 and also the application filed by the defendant under Order XXXIX Rule 4 of C.P.C. has vacated the interim order of injunction that was earlier granted in favour of the plaintiff. The trial Court while considering the application has observed that the plaintiff himself had produced the Katha extract in respect of the suit schedule property which stood in the name of the defendant. It is further observed that the defendant had produced documents standing in his name which includes license, building commencement certificate all obtained in the name of the defendant. The defendant had also relied on the documents produced in O.S.No.220/2014 filed by one Gowramma against the defendant in the present proceedings and noticing that there was a finding that the defendant in the present proceedings was in possession of the suit schedule property and in the suit filed by Gowramma against the defendant, an application filed by Gowramma against the present defendant came to be rejected. The Court further has observed that plaintiff had not produced any document to demonstrate the possession of the suit schedule property nor had putforth any documents including steps taken to challenge the revenue entry made into the name of the defendant with respect to the suit schedule property. Taking note of all the material and facts on record the Court had observed unequivocally at paragraph No.15 of the impugned order that documents produced prima facie show the possession of the defendant over the schedule property. The Court has vacated the exparte order of temporary injunction granted on 04.12.2015.
2. The said matter was taken up in appeal by the plaintiff before the Appellate Court. The Appellate Court while considering the M.A.No.26/2016 has allowed the appeal and set aside the order vacating the exparte order of injunction granted. The Counsel for the petitioner contends that the trial Court having vacated the order of injunction, the Appellate Court ought not to have interfered with the order. It is further contended that the Appellate Court has wrongly appreciated the aspects of balance of convenience and in fact, seriously erred in recording the finding that the defendant would not be put to any irreparable hardship by observing that if the defendant is restrained by putting up further construction on his own on the suit schedule property, no hardship would be caused as the suit schedule property would remain in the present state of condition till the disposal of the suit.
3. Learned counsel for the respondent – plaintiff contends that there is clear material on record to indicate that the plaintiff is the only legal heir of G.C.Bhyraiah and relies on the pleadings of the previous suit wherein, it is stated that the mother of the defendant is a party to the said legal proceedings and an admission has been made as regards to the legal representative of late G.C.Bhyraiah. It is further contended that in the light of the said stand taken by the mother of the defendant, the defendant in the present case is bound by such assertion. However, these are aspects that are required to be decided in trial and at this stage, the Court would not enter into such an enquiry. The trial Court has noticed that defendant is in possession and so also the Appellate Court has reiterated the said finding that the construction is partially complete and as regards the balance of convenience and had rejected the application for injunction filed by the plaintiff. It is also to be noted that the revenue records and building license are also taken in the name of the defendant and remain valid as on date. In the event the plaintiff were to succeed, it is needless to state that the defendant who is the party to the present proceedings being aware of the legal consequence is not entitled to claim equities. While deciding as regards to the correctness of the order passed by the trial Court, the Appellate Court cannot upset the order merely because a different finding could be arrived at, in the absence of any perversity in the order of the trial Court, and in the light of the said position the order passed in M.A.No.26/2016 is set aside.
4. The suit relates to the year 2015, the trial Court to expedite the trial of the case by taking note of the seniority of the case vis-a-vis other pending cases.
5. Accordingly, the petition is disposed of.
Sd/- JUDGE nvj