IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.46910-46912/2018 (GM-CPC) Between:
1. Sri.Chowdaiah, S/o. Late Chikkashetty, Aged about 47 years, 2. Sri.Chikkanna, S/o. Late. Chikkashetty, Aged about 43 years, 3. Puttamadashetty, S/o. Late Chikkashetty, Aged about 40 years, All are residing at, Hullagala Village, Kirugavalu Hobli, Malavalli Taluk, Mandya District-571 430. ... Petitioners (By Sri.Sathyanarayana Gopal Rao, Adv., for Sri.Ningaraja.M.N, Adv.,) And:
Smt.Devamma, Wife of Late Puttamadashetty, Aged about 58 years, Residing at NES Extension, Housing Board Colony, Malavalli Town, Mandya District-571 430. ... Respondent These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the order dated 18.09.2018 passed by the Hon’ble Prl.Civil Judge and JMFC at Malavalli on the application filed by the respondent in O.S.No.81/2017 on I.A.No.4 vide Annexure-A.
These Writ Petitions coming on for ‘Preliminary Hearing’ this day, the Court made the following:
ORDER These writ petitions are filed by defendants in O.S. No.81/2017 against the order dated 18.9.2018 whereby the Principal Civil Judge and JMFC, Malavalli, has allowed I.A.No.4 filed by plaintiff seeking police protection to implement the order passed by the trial Court dated 7.4.2018 restraining the defendants, their assignees, labours or agents or anybody acting on their behalf from causing interference to the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any manner whatsoever by way of granting the interim order of temporary injunction in respect of suit schedule property till the disposal of the suit.
2. The respondent-plaintiff filed the suit for declaration and for permanent injunction contending that she is owner of the suit schedule property based on the registered sale deed dated 25.9.1996 said to have been executed by the defendants for valuable consideration. The plaintiff has also contended that defendants have no manner of right, title and interest to interfere with the same.
3. The defendants filed written statement denying the plaint averments contending that the defendants are the absolute owners of the property in question. The defendants and their father were in need of loan of Rs.1.00 lakh and accordingly, they approached the plaintiff for the said loan. At that time, the plaintiff agreed to advance the loan by charging interest at the rate of 24% p.a. The plaintiff further to advance the loan amount, insisted the defendants for execution of the sale deed of the property as security and that after discharge of the said loan, she will execute re-
conveyance deed in favour of defendant No.1. Though they were not ready to execute the sale deed and that, they were ready to execute any other document like mortgage deed, the plaintiff did not agree for the same. Hence, they executed the sale deed in favour of the plaintiff. Though they were ready to return the loan amount, the plaintiff refused to execute the reconveyance deed as agreed by her. Therefore, sought for dismissal of the suit.
4. The trial Court on the application filed by the plaintiff under Order XXXIX Rules 1 and 2 read with section 151 of Code of Civil Procedure by an order dated 7.4.2018 granted temporary injunction in favour of the plaintiff as prayed for. Against the said order passed by the trial Court, the defendants filed M.A. No.4/2018 which is pending consideration. The material on record also clearly depicts that the present defendants have also filed O.S. No.147/2017 against the plaintiff to enforce specific performance of the alleged agreement said to have been executed by the plaintiff to reconvey the property and the said suit is also pending. In the meanwhile, the plaintiff filed the application I.A. No.4 for police protection and the same came to be allowed by the impugned order. Hence, these writ petitions are filed.
5. I have heard Sri Satyanarayana Gopal Rao, learned Counsel for Sri Nagaraja M.N., learned counsel appearing for the petitioners.
6. Learned counsel for the petitioners-defendants would contend that the impugned order passed by the trial Court granting police protection is not sustainable. The defendants are the absolute owners of the suit schedule property and in view of the persuasion made by the plaintiff, the defendants executed document as security for borrowing loan from the plaintiff and plaintiff has also not executed reconveyance deed in favour of defendant No.1. The said aspect of matter has not been considered by the trial Court. He would further contend that the appeal in M.A. No.4/2018 is pending adjudication. The trial Court ought not have granted interim order. The plaintiff has an alternative remedy of filing an application under Order XXXIX Rule 2(A) of Code of Civil Procedure. Therefore, he sought to allow the writ petitions.
7. Having heard the learned counsel for the petitioners, undisputed fact is that, the plaintiff has filed suit for declaration of permanent injunction based on the registered sale deed dated 25.09.1996 and it is also not in dispute that the trial Court after hearing both the parties, granted temporary injunction directing the defendants not to interfere with the possession and enjoyment of the plaintiff over the suit schedule property.
8. Admittedly, the present defendants filed M.A.No.4/2018 before the trial Court against the temporary injunction granted by the trail Court. The said appeal is pending adjudication. As of now, no interim is granted. It is also not in dispute that based on the registered sale deed which is said to have been executed by the plaintiff, the defendants have already filed O.S.No.147/2017 for specific performance. The said suit is pending for adjudication between the parties and no interim order is granted. The fact remains is that in view of the sale deed dated 25.09.1996, the plaintiff is in possession and enjoyment of the suit property. Unless and until, reconveyance deed is executed by the plaintiff, the defendants cannot claim that they are in the possession. The injunction granted by the trial Court has reached finality. The trial Court considering the entire material on record, proceeded to allow the present application.
9. Sri.Sathyanarayana Gopal Rao for Sri.Ningaraja M.N., learned counsel for the petitioners contended that though there is a remedy for the plaintiff to file an application under Order XXXIX Rule 2(A) of the Code of Civil Procedure, the trial Court granted an injunction in spite of disobedience on the part of the defendants. The implementation of injunction order, ultimate endeavour of the Courts should be in the direction of upholding the magesty of Courts and safeguarding sanctity of orders and decrees of the Courts form being invaded and flouted in the name of lame, feeble and unreasonable excuses and explanations and in the name of unsustainable technicalities. It is held that police help can be granted in deserving and appropriate cases under Section 151 of Code of Civil Procedure.
10. Admittedly, in the present case, no material is produced by the defendants to show that as to how they came in possession after the sale deed dated 25.09.1996 is executed. In the presence of the injunction granted by the trial Court and the implementation of the said order, allowing the present application filed by the plaintiff is just and proper.
11. My view is justified by dictum of this Court in the case of M.S. Mahadeva prasad and others vs. Mahadevaiah and others reported in ILR 2001 KAR 462, wherein this Court considering the earlier dictums of this Court in the case of Narasimhappa and Papanna has held that when the Court has prima facie considered the matter and granted temporary injunction in favour of the plaintiffs after hearing the defendants, the Court has the power to enforce the same and the contention of the defendants that he is in persona cannot be accepted at this stage and the remedy under Order XXXIX Rule 2(A) of Code of Civil Procedure is not exhaustive, the Court can pass orders if necessary for police protection to enforce the orders of the Court.
12. In view of the aforesaid reasons, the defendants- petitioners have not made out a prima-facie case to interfere with the impugned order passed by the trial Court in exercise of power under Article 227 of the Constitution of India.
Accordingly, the petitions are dismissed.
Sd/- JUDGE CS/VM CT-RG