IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.12828 OF 2018 (GM-CPC) BETWEEN:
1. NAGAPPA GOWDA, S/O. GOVINDAIAH GOWDA, 82 YEARS, 2. SMT. MANJULA, W/O. RAVI, 37 YEARS, BOTH ARE R/AT NAGALAPURA, HOSAHALLI VILLAGE, UNTURUKATTE, KAIMARA POST, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577438.
(BY SRI. PRASAD B.S., ADVOCATE) AND B.T.MANJAPPA GOWDA, S/O. LATE THIMMAIAH GOWDA, 67 YEARS, R/O. BOBSIRS, DURVASAPURAM POST, MULABAGILU VILLAGE, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577438.
(BY SRI. B.K.MANJUNATH, ADVOCATE) … PETITIONERS … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.02.2018 IN MISC. APPEAL NO.14/2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT THIRTHAHALLI BY THE PETITIONER PRODUCED AT ANNEXURE-G AND GRANT AN INTERIM ORDER TO STAY THE ORDER DORDER DATED 14.02.2018 IN MISC.APPEAL NO.14/2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT THIRTHAHALLI BY THE PETIIONER PRODUCED AT ANNEXURE-G.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in a specific performance suit in O.S.No.310/2014 are invoking the writ jurisdiction of this Court for assailing the order dated 14.02.2018 a copy whereof is at Annexure-G whereby the learned Senior Civil Judge, Thirthahalli, having favoured respondents’ MA No. 14/2017 has granted the temporary injunctive relief. After service of notice, the respondent- plaintiff having entered appearance through his counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines to grant indulgence in the matter because:
a) the agreement to sell dated 12.06.2012 specifically mentions about delivery of possession in favour of respondents in so many words; although the said agreement was not duly stamped, later the same has been made admissible in evidence by paying the deficit stamp duty along with penalty as prescribed by the provisions of Karnataka Stamp Act, 1957;
b) prima facie, the agreement in question can be taken cognizance of inasmuch as, it speaks of a registered testamentary dispossession of the subject property by the first petitioner and the said testament is stated to have been revoked by the testator vide another instrument; nothing is mentioned in the Written Statement to the effect that the said registered Will having been concocted, has been revoked; however, by the testator who is the defendant;
c) the revenue officials having visited the spot have mentioned in their report as to the respondent- plaintiff having grown paddy crop that was allegedly removed by the petitioners which again is the subject matter of CCC No.309/2019 pending before this Court on the contempt jurisdiction; the respondent being the complainant in the said case states that he shall not press the same; a memo to that effect is also being filed in this Court too;
d) ordinarily, the lower appellate Court’s version in the discretionary matters like the grant of temporary injunctive relief are treated as final subject to outcome of the suit and therefore this Court does not undertake a deeper scrutiny of the version, in the absence of warranting circumstances; and, e) the respondent has given up his grievance/complaint against alleged removal of paddy crop by the petitioners from the subject property.
In the above circumstances, this writ petition being devoid of merits, is dismissed.
The observations made hereinabove shall not influence the trial & disposal of the suit in questioning any way.
Since the suit is of the year 2014, the learned judge shall make all endeavors to dispose off the same preferably within an outer limit of nine months.
No costs.
Sd/- JUDGE Bsv