IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.51136/2017(GM-CPC) BETWEEN:
1. SRI GURUPRASAD, S/O RAMANNA SHETTY, AGED ABOUT 42 YEARS, KAMALA NIVASA, PALDOTTU HOUSE, MALADY VILAGE, POST: KUNJALKATTE, BELTHANGADI TALUK, D. K.-574214.
... PETITIONER (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. SRI RAMANNA SHETTY, S/O SRI AITAPPA SHETTY, AGED ABOUT 75 YEARS, KAMALA NIVASA, PALDOTTU HOUSE, MALADY VILAGE, POST: KUNJALKATTE, BELTHANGADI TALUK, D. K.-574214.
2. SMT. VASANTHI R. SHETTY, W/O SRI RAMANNA SHETTY, AGED ABOUT 70 YEARS, KAMALA NIVASA, PALDOTTU HOUSE, MALADY VILAGE, POST: KUNJALKATTE, BELTHANGADI TALUK, D. K.-574214.
... RESPONDENTS …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.10.2017 IN O.S.324/2017 ON THE FILE OF THE CIVIL JUDGE AND JMFC., BELTHANGADY AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant filed the present writ petition against the order dated 25.10.2017 made in O.S.No.324/ 2017 on the file of the Addl. Civil Judge and JMFC, Belthangady, directing to issue show cause notice to the PSI of Punjalkatte Police for non compliance of the order dated 20.09.2017.
2. The plaintiffs filed suit for permanent prohibitory injunction restraining the defendant, his men and representatives from blocking or creating any obstructions to plaint ‘B’ schedule road and from obstructing the plaintiffs from using the plaint ‘B’ schedule road, contending that plaintiffs are residing in the house situated in the plaint ‘A’ schedule property. In order to reach the plaint ‘A’ schedule property and the house situated therein, there is a road morefully described in the ‘B’ schedule to the plaint. The said plaint ‘B’ schedule road passes in the government land comprised in Sy.No.257/1 and 30/1P1. The plaintiffs are using the said plaint ‘B’ schedule road in order to reach ‘A’ schedule property and the defendant is blocking the said road. Therefore, plaintiffs filed the suit for the relief sought for.
3. The defendant filed the written statement, denied the plaint averments and contended that there is no plaint ‘B’ schedule road existing, as alleged in the plaint and sought for dismissal of the suit.
4. The plaintiffs also filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking an ad interim ex-parte injunction. The Trial Court, by order dated 20.09.2017 granted an order of temporary injunction, restraining the defendants from blocking or creating any obstruction to the road having width of 25 links situated in Sy.No.257/1 and 30/1P1 situated a Malady village, Belthangady Taluk, which is a plaint B schedule road, till the disposal of I.A.No.2. The Trial Court also directed the PSI of Punjalkatte Police to give protection to the plaintiffs as well as B schedule property, whenever plaintiffs approach for assistance, and issued suit summons to defendant and notice on I.A.No.2 after complying the order XXXIX Rule 3 of Code of Civil Procedure.
5. Subsequently, on 09.10.2017, the defendant filed vakalath, written statement, counter claim and documents. On the said date, the counsel for the plaintiffs submitted that the defendant assaulted the second plaintiff who is the mother of first plaintiff and the police did not give proper assistance to the plaintiffs and sought for suitable orders. Considering the submission made by the learned counsel for the plaintiffs, the Trial Court directed the Punjalkatte Police to give proper protection to the plaintiffs as well as suit schedule property and also directed to give explanation for non-complying with the order dated 20.09.2017, on or before 21.10.2017. Time was granted till 21.10.2017 to file rejoinder to the counter claim.
6. On 21.10.2017, the counsel for the defendant filed memo along with counter claim affidavit to I.A.No.2 and I.A.No.3 along with list of documents. On 25.10.2017, after hearing both the parties on I.A.No.2, the Trial Court directed to issue show cause notice to the PSI of Punjalkatte Police for non compliance of the order. Hence the present writ petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Sri Chandranath Ariga.K. learned counsel for the petitioner/defendant contended that the impugned order passed by the Trial Court directing to issue show cause notice to the Punjalkatte Police is erroneous and contrary to the material on record. Taking advantage of the impugned order, the Police are unnecessarily harassing the defendant and therefore, the impugned order cannot be sustained and he sought to quash the impugned order by allowing the writ petition.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiffs filed suit for permanent prohibitory injunction and also filed an application for temporary injunction. The Trial Court, considering the application, by the impugned order dated 20.09.2017, granted temporary injunction in respect of plaint ‘B’ schedule property and directed Punjalkatte Police to give protection to the plaintiffs as well as plaint ‘B’ schedule road, whenever plaintiffs approach for assistance. Admittedly, defendant has not filed application for vacating the ex-parte interim order granted by the Trial Court. Learned counsel for the petitioner/defendant submits that after considering the application and objections filed, now the Trial Court has made absolute the interim order granted earlier. But the defendant has not filed any appeal.
10. When the interim order granted by the Trial Court on 20.09.2017 and directed the Punjalkatte Police to given protection to the plaintiffs, it was the duty of the Police to comply the said order. Since the police did not comply the order, the Trial Court directed to issue show cause notice to the Punjalkatte Police. It is between the concerned police and the Court. The defendant cannot be aggrieved by the impugned order.
11. Admittedly, after hearing both the parties, as submitted by learned counsel for the petitioner/ defendant, now, the interim order is made absolute.
Therefore, petitioner/defendant has not made out any ground to interfere with the impugned order. It is for the police to respond to the impugned order. Absolutely, petitioner has no grievance, in view of the subsequent development, i.e., the interim order being made absolute. The petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India. Writ Petition is dismissed.
Sd/- JUDGE kcm