IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 34833 OF 2017 (GM-CPC) BETWEEN:
SRI. B. N. GOPALA AGED ABOUT 48 YEARS, S/O. LATE NAGAPPA SHETTY, RESIDING AT J. P. NAGARA, BELUR-573 115, HASSAN DISTRICT.
… PETITIONER (BY SRI. SHANKARANARYANA BHAT N, ADVOCATE) AND:
1. SRI. M. GURUPADASWAMY AGED ABOUT 52 YEARS, S/O. LATE MALIYAPPA GOWDA, RESIDING AT PUMP HOSUE ROAD, BELUR-573 115, HASSAN DISTRICT.
2. SRI. B. N. KUMARA AGED ABOUT 46 YEARS, S/O. LATE NAGAPPA SHETTY, 3. SRI. B. N. PRABHAKAR AGED ABOUT 43 YEARS, S/O. LATE NAGAPPA SHETTY, 4. SRI. B. N. LOKESH AGED ABOUT 36 YEARS, S/O. LATE NAGAPPA SHETTY, 5. SMT. B. N. CHANDRAMATHI AGED ABOUT 52 YEARS, D/O. LATE NAGAPPA SHETTY, 6. SMT. B. N. TEJAVATHI AGED ABOUT 40 YEARS, D/O. LATE NAGAPPA SHETTY, R2 TO 6 ARE RESIDENTS OF DEVANGA ROAD, BELUR-573 115, HASSAN DISTRICT.
(BY SRI. PRAMOD R, ADVOCATE FOR R1;
… RESPONDENTS SRI. KARIGOWDA, ADVOCATE FOR C/R1; NOTICE TO R2-6 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT RECORDS AND QUASH THE ORDER OF THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, BELUR IN M.A.NO.18/2017 DTD.14.7.2017 VIDE ANNEX-G IN THIS W.P.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in O.S.No.104/2017 and the respondent in M.A.No.18/2017 is invoking the writ jurisdiction of this Court for laying a challenge to the order dated 14.07.2017 a copy whereof is at Annexure-G whereby, the learned Senior Civil Judge, Beluru, having allowed the said M.A. has dismissed IA No.13 filed by the plaintiff in the suit; however, a direction is issued to the respondents to stipulate Subjudice Clause in the event of alienating or encumbering the subject property. After service of notice, the contesting respondent having entered Caveat through their counsel, resist the writ petition. Notice to other respondents is dispensed with.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines indulgence in the matter because:
(i) the suit of the petitioner itself is for a decree of permanent injunction & mandatory injunction i.e., the petitioner has sought for the demolition of the building constructed by the respondents in the suit property; at para No.4 of the plaint, petitioner has specifically stated that the first respondent has put up the building unauthorizedly when petitioner was away for about two months or so in connection with harvesting of the crops elsewhere;
(ii) the photographs produced by the respondents along with their application for vacating of the interim order show that the construction of the building is almost accomplished and that they have performed the opening ceremony on 14.01.2018; a copy of invitation card for the Gruha Pravesham is also produced and, (iii) the impugned order protects the interest of the plaintiff inasmuch as, if there is alienation or encumbrance of the interest in the suit property pendente lite, a stipulation of Subjudice needs to be made in the conveyance; however, the respondents state that they shall not alienate or encumber the suit property without the leave of the Court below; this completely protects the interest of the petitioner.
In the above circumstances, this writ petition is disposed off without medaling with the impugned order but, with the above observation.
Sd/- JUDGE Bsv