IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO. 6651/2017 (GM-CPC) BETWEEN:
1. SRI B G ROOPKUMAR S/O GURAPPAGOWDA, AGED ABOUT 60 YEARS, REPRESENTED BY G.P.A HOLDER, SRI. ASHITH B.R.
2. SRI. ASHITH B.R. S/O ROOPKUMAR AGED ABOUT 32 YEARS BOTH ARE RESIDING AT SRI. MALLIKARJUNA RICE MILLS, BICCODU VILLAGE AND POST, BELUR TALUK, HASSAN DISTRICT-570 026.
... PETITIONERS (BY SRI. P P HEGDE, ADVOCATE) AND:
1. SMT B N ANUPAMA D/O SRI. B.M. NATARAJ, AGED 40 YEARS 2. SMT. B.M. APPORVA D/O SRI. B.N. NAGARAJ, AGED 38 YEARS 3. SMT. B.N. MANJULA W/O SRI. B.M. NATARAJ, AGED ABOUT 55 YEARS 4. SRI. B.M. NATARAJ S/O LATE MUT HANNA B.M. AGED ABOUT 65 YEARS 5. SMT. B.N. ROOPA W/O SRI. B.M. NANDISH AGED ABOUT 48 YEARS 6. SRI. RENUKANANDA B.N S/O SRI. B.M. NANDISH, AGED ABOUT 30 YEARS 7. SMT. B.N. RACHITA D/O SRI. B.M. NANDISH, AGED ABOUT 28 YEARS 8. SRI. B.M. NANDISH S/O LATE MUTHANNA B.M, AGED ABOUT 60 YEARS ALL ARE R/AT ANUGHATTA VILLAGE, AREHALLY HOBLI, BEGUR TALUK, HASSAN DISTRICT-570 026.
9. TRICOLOR INVESTMENT AND PROPERTIES PVT., LTD., HEAD OFFICE AT MYSURU BY ITS SISTER CONCERN UNIT. INDIAN ESTATES, BY ITS MANAGING PARTNER, MR. PAWAN C.M.
S.O MOGANNAIAH C.M AGED ABOUT 32 YEARS RESIDING AT NO.638, 2ND FLOOR, MYSORE MILK DIARY ROAD, OPP: DFRL SIDDARTHA NAGAR , MYSORE 570 011.
... RESPONDENTS (BY SRI. NATARAJA BALLAL, ADVOCATE FOR C/R9) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 08.07.2016 PASSED BY THE HON'BLE CIVIL JUDGE (JUNIOR DIVISION) AND JMFC, BELUR IN I.A.NO.2 IN O.S.NO.115/2016 VIDE ANNX-D.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.P.P.Hegde, learned counsel appearing for the petitioner and Sri. Nataraja Ballal, learned counsel appearing for Caveator / respondent No.9.
2. An order passed by the trial Court allowing I.A.No.2 filed by 8th plaintiff i.e., respondent No.8 herein by restraining defendant Nos.1 and 2 from causing any obstruction for their free movement and persons, agents, executives, labourers, contractors, staffs, suppliers, cars, vehicles in ABCD area as shown in the rough sketch and as morefully described in the application for injunction, which came to be affirmed by the first appellate court in M.A.No.16/2016, has been called in question. Perused the records.
3. Respondent Nos.1 to 9 herein have filed the suit O.S.No.115/2016 against defendant Nos.1 and 2 i.e., petitioners for the relief of perpetual injunction to restrain them from causing any obstruction for free movement of plaintiffs or any persons claiming under them in respect of property described in the plaint schedule contending interalia that it is a 15 feet road and runs about 2 kms, which is a panchayath road and used from time immemorial.
4. Defendant Nos.1 and 2 appeared on service of suit summons, filed their written statement and denied the averments made in the plaint. Plaintiffs in aid of main relief filed an application under Order 39 Rule 1 and 2 CPC seeking for temporary injunction to restrain defendants during the pendency of suit from causing any obstruction to the use and enjoyment of said panchayath road. Defendants by reiterating the defence raised in the written statement and by filing a detailed statement of objections contended that purported road which plaintiffs claim as a panchayath road, is not in existence and said property is the property belonging to them and even otherwise also plaintiffs have alternate road for their ingress and egress to their residential property. Hence, they sought for rejection of the application.
5. Trial Court after considering rival contentions and on appreciation of documents placed by the parties and taking into consideration necessary three (3) ingredients for grant of an temporary injunction namely, prima facie case, balance of convenience and irreparable loss and injury has found all these three factors are in favour of plaintiffs and as such, granted an order of temporary injunction, which came to be affirmed by first appellate Court as already noticed hereinabove. Assailing these orders, defendant Nos.1 and 2 are before this Court.
6. It is the contention of Sri. P.P.Hegde, learned counsel appearing for the defendants / writ petitioners that temporary injunction that has been granted in respect of imaginary land, there is no such road and plaintiffs have not even indicated survey number of the suit schedule property and have failed to establish prima facie case. Hence, it is contended that both Courts committed a serious error in granting temporary injunction.
7. Per contra, Sri. Nataraja Ballal, learned counsel appearing for caveator / respondent No.9 has supported the impugned orders.
8. This Court in exercise of revisional jurisdiction would not sit as an appellate court to reappreciate the disputed facts, which has been examined by the Courts below. In the event of there being either non-consideration of available material or ignoring the available material or erroneous appreciation of available material on record by the Courts below, would exercise the supervisory jurisdiction under Article 227 of the Constitution of India as otherwise not.
9. In the instant case, as could be seen from the impugned orders trial Court has noticed that plaintiffs have been able to place prima facie material to grant an order of temporary injunction against defendants namely, it has found that photocopy of action plan or estimation prepared by the jurisdiction Grama Panchayath revealed that they have been taking steps to improve the existing road, which is disputed road namely, suit schedule property. The records would also disclose that on either side of the disputed road plaintiffs’ and defendants’ properties are situated and in the light of said material placed on record, trial Court has arrived at a conclusion that plaintiffs have prima facie case established existence of road and on account of property belonging to plaintiffs being used as home-stay and disputed road being used as ingress and egress for the purposes of users of home-stay, trial Court has held that in the event of defendants are not restrained by an order of temporary injunction defendants would definitely cause obstruction and as such, there being prima facie case in favour of plaintiffs trial Court has held, refusal to grant temporary injunction in favour of plaintiffs would cause irreparable loss and injury to plaintiffs, but on the other hand, during the pendency of suit if said road being allowed to use as such, it would not cause any hardship to defendants much-less to plaintiffs. Hence, it has opined grant of temporary injunction was necessary.
10. Lower appellate court on appreciation of entire facts and material placed before it has found that there was no error committed by the trial Court in granting an order of temporary injunction. In fact, lower appellate court has noticed that contention of parties before trial court was to the effect that said road is a private road formed by the defendants for the purposes of defendants to carry coffee seeds and for the movement of labourers from one block to another and as such, it came to be held that existence of road was not in dispute. However, it has been held by trial Court that issue as to whether it is a public road as contended by plaintiffs or private road as contended by defendants, is required to be examined by a full fledged trial and there being prima facie case in favour of plaintiffs, order of trial Court granting temporary injunction was held not to be interfered. Said finding recorded by lower appellate court is based on well established principles of law and supported by reasons, as held by first appellate court at paragraph 11 of its order.
11. Said finding recorded by first appellate court does not call for any interference as it does not suffer from irregularity or illegality. Hence, writ petition stands dismissed. However, it is made clear that opinion expressed by the Courts below would be necessarily for the purposes of considering I.A.No.2 and trial Court shall not be influenced by any observations made by it or by first appellate court during the course of impugned orders.
Ordered accordingly.
SD/- JUDGE DR