IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.35903 OF 2016 (GM-CPC) BETWEEN:
Pandavapura Taluk House Building Co-operative Society Ltd., Pandavapura, Represented by its Secretary – Sri S.K.Ninge Gowda S/o Late Kale Gowda Aged about 55 years R/o Pandavapura Mandya District-571434 ... Petitioner (By Sri Rajagopal M R, Advocate) AND:
1. Sri M. Karthik S/o Late B. Marigowda Aged about 28 years R/at Haralahalli village Kasaba Hobli Pandavapura Taluk Mandya District-571434 2. Smt. Vedavathi W/o K.R.Nagaraju Aged about 50 years 3. Sri K.G.Ramegowda S/o Late Gopalegowda Aged about 18 years R-2 and R-3 are R/o Katteri village Aralakuppe Post, Chinakurali Hobli Pandavapura Taluk, Mandya District-571434 4. Smt. Latha W/o Devaraju Aged about 43 years R/o Srinivasa Agrahara K.Shettihalli Hobli Srirangapatna Taluk Mandya District-571434 5. Smt. Kalpana W/o K.N.Umesha Aged about 41 years R/o Kodahalli Hosur Village T.S.Chathra Post Pandavapura Taluk Mandya District-571434 6. Smt. Kamalamma W/o Mogannegowda Aged about 67 years R/o Chikkade Village Kasaba Hobli Pandavapura Taluk Mandya District-571434 …Respondents (By Sri C.M.Nagabushana, Advocate for R1 & notice to R-2 to 6 dispensed with vide order dated 12.12.2017) This Writ Petition is filed under Article 227 of The Constitution Of India praying to quash the order dated 19.12.2015 passed by the learned Civil Judge & JMFC, Pandavapura on IA No.1 in O.S.No.309/2015 at Annexure-M and also the order dated 27.04.2016 passed by the learned Addl. Senior Civil Judge and JMFC, Pandavapura in MA No.3/2016 at Annexure-N, consequently, dismiss IA No.1 in O.S.No.309/2015 on the file of the Civil Judge and JMFC, Pandavapura.
This Writ Petition coming on for ‘preliminary hearing’ this day, the Court made the following:
ORDER The sixth defendant, who is unsuccessful before the Courts below filed the present writ petition against the order dated 27.04.2016 made in M.A.No.3/2016 on the file of the Additional Senior Civil Judge and JMFC, Pandavapura, dismissing the appeal, confirming the order passed by the trial Court dated 19.12.2015 on IA No.1 filed under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure in O.S.No.309/2015 for temporary injunction restraining the defendants from alienating the suit schedule property.
2. The first respondent who is the plaintiff before the trial Court filed the said suit for permanent injunction based on a unregistered Will contending that he is in possession and enjoyment of the suit schedule property. The defendants without any manner of right are interfering with his possession. The defendants filed written statement denying the plaint averments and the alleged Will and sought for dismissal of the suit.
3. The plaintiff also filed IA No.1 for temporary injunction, reiterating the plaint averments. Same was objected by the defendants, reiterating the averments made in the written statement.
4. The trial Court considering the application and objections, by the impugned order dated 19.12.2015 allowed IA No.1 filed by the plaintiff and restrained the defendants from alienating the suit schedule property. Same was confirmed by the lower appellate Court by the impugned order dated 27.04.2016. Hence, the present writ petition is filed.
5. I have heard the learned counsel appearing for the parties to the lis.
6. Sri Rajagopal M R, learned counsel for the petitioner mainly contending that the impugned order passed by the trial Court, before granting temporary injunction has not considered the written statement and the material documents produced to show that the plaintiff has not made out any case. Therefore, he sought to quash the impugned order.
7. Per contra, Prof. C.M.Nagabhushana, learned counsel for the respondent No.1 sought to justify the impugned orders and contended that even after filing of objections and production of documents, the defendants have not made out any ground to interfere with the impugned order passed by the trial Court.
8. Having heard the learned counsel for the parties and perusal of the entire material on record carefully, the trial Court while considering the application in Para 7, except referring RFA No.1432/2012, O.S.No.8/2010 and FDP No.2/2012, has not relied upon any of the defence and the documents produced by the defendants to oppose the application for temporary injunction. The trial Court has held that “after perusing the pleadings and documents placed on record, I hold that the plaintiff has made out a prima-facie case and balance of convenience lies in their favour. When there is prima-facie case and balance of convenience, the plaintiff is entitled to temporary injunction.” Except stating ‘perused the pleadings and documents’, he has not discussed what is the objections raised and what are the pleadings raised and what are the documents produced and finally same is also confirmed by the lower appellate Court, without considering the material documents produced by both the parties. In view of the same, the impugned order passed, granting injunction cannot be sustained at this stage.
9. Sri Rajagopal M R, learned counsel for the petitioner/sixth defendant fairly submits that the sixth defendant will not alienate the suit schedule property till consideration of the application by the trial Court. The said fair submission is placed on record.
10. In view of the aforesaid reasons, the writ petition is allowed. The impugned order passed by the lower appellate Court dated 27.04.2016 made in M.A.No.3/2016 on the file of the Additional Senior Civil Judge and JMFC, Pandavapura, confirming the order dated 19.12.2015 passed on IA No.1 in O.S.No.309/2015 on the file of the Civil Judge and JMFC, Pandavapura is quashed.
11. The matter is remanded to the trial Court to consider the IA No.1 afresh, after considering the application for temporary injection objection and documents produced by the defendants and pass orders within a period of two months from the date of receipt of a copy of this Order, subject to the co-operation by both the parties.
12. Parties are directed to appear before the trial Court on 05.01.2018.
13. Office is directed to transmit the original records to the trial Court forthwith.
SD/- JUDGE KMV*