IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.1942 OF 2018 (CPC) BETWEEN:
Smt. Saleth Mary W/o Chinnappa C/o Kantharaj Aged about 61 years R/o No.262, 1st Cross Kammanahalli village Rayappa Road Bengaluru – 560 084 (By Sri S.N.Ashwathanarayan, Advocate) AND:
1. Karnik Swamy Father name not known Aged about 76 years 2. Janvaries K.S.
S/o Karnik Swamy Aged about 56 years 3. Smt. Selvi Mary W/o Kasparaju D/o Karnik Swamy Aged about 46 years …Appellant 4. Kasparaju S/o Rayappa Aged about 56 years All are R/o Seegehalli village Virgonagar Post Bengaluru East Taluk Bengaluru – 560 049 (R2, R3 and R4 – served;
... Respondents v/o dated 18.01.2019 R2 & R3 are LRs of R1) This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 23.11.2017 passed on IA No.1 in O.S.No.1160/2017 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, dismissing IA No.1, filed under Order 39 Rules 1 and 2 CPC.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT This is plaintiff’s appeal. His application for temporary injunction in O.S.No.1160/2017 stood dismissed by order dated 23.11.2017. The plaintiff’s suit is for declaration with regard to her absolute right, title and interest in respect of ‘A’ schedule property, Mandatory injunction for demolishing unauthorized construction made by the defendants in plaint ‘B’ and ‘C’ schedule properties and for possession of ‘B’ and ‘C’ schedule properties.
2. Pending disposal of the suit, the plaintiff sought for an order of temporary injunction to restrain the defendant Nos.3 and 4 from putting up further construction on ‘C’ schedule property.
3. The trial Court after perusing the materials placed before it, came to conclusion that by the time the suit was filed, the construction had already come up in ‘B’ schedule property. A three storied building had been constructed by that time. It is also observed that even after construction of building on ‘B’ schedule property in the year 2007, the plaintiff appears to have not taken any steps to seek possession of the property. Thus, the Court below did not find prima-facie case for grant of temporary injunction.
4. On perusing the materials and the impugned order, I am of the opinion that the trial Court has exercised discretion properly for not granting an order of temporary injunction. This is a suit for declaration of title, mandatory injunction and possession. In case the plaintiff succeeds in the suit, she will be entitled to possession and also can seek demolition of the building. The circumstances do not warrant grant of temporary injunction. There are no grounds to interfere with the impugned order. Appeal is dismissed.
The trial Court is directed to expedite the disposal of the case in the circumstances.
If the plaintiff wants early disposal, she is at liberty to file an application under Section 151 of the Code of Civil Procedure requesting the trial Court for out of turn disposal.
KMV/-
Sd/- JUDGE