IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.5558/2019 (GM – CPC) BETWEEN:
SRI K.P.HANUMANTHEGOWDA @ PUTTASWAMY S/O LATE PUTTEGOWDA AGED ABOUT 69 YEARS, PROPRIETOR: JAI HANUMAN TRANSPORT JAI HANUMAN NILAYA B.KATIHALLY KOPPALU HASSAN TALUK & DISTRICT-573201 ... PETITIONER [BY SRI H.C.SHIVARAMU, ADV.] AND:
SRI K.P.VENKATARAMU S/O LATE PUTTEGOWDA AGED ABOUT 67 YEARS, R/AT NO.1118, BASATTI KOPPALU SLATERS HALL MAIN ROAD HASSAN-573201 …RESPONDENT [BY SRI B.K.NARENDRA BABU, ADV. FOR C/R.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 03.01.2019 PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE AT HASSAN IN M.A.NO.49/2018 MARKED AS ANNEXURE-F AND THE ORDER PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN ON I.A.NO.2 IN O.S.NO.64/2018 MARKED ORDER DATED 10.09.2018 VIDE ANNEXURE-D BY ISSUING A WRIT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Learned counsel Sri.Narendra Babu.B.K., accepts notice for respondent.
2. The petitioner has challenged the order passed by the learned Principal District Judge at Hassan in M.A.No.49/2018 dated 03.01.2019 whereby the order of the I Additional Senior Civil Judge and JMFC at Hassan ['Trial Court' for short] dated 10.09.2018 on I.A.No.2 in O.S.No.64/2018 has been confirmed.
3. The respondent/plaintiff has filed O.S.No.64/2018 for partition and separate possession of the suit property. In the said proceedings, I.A.No.2 was filed by the plaintiff seeking for temporary injunction, restraining the defendant No.2/petitioner from putting up further construction of the building over the suit property – item No.4. The Trial Court passed an order of temporary injunction, restraining the petitioner from putting up construction of the building. Being aggrieved, M.A.No.49/2018 was filed before the Lower Appellate Court by the petitioner and the same came to be dismissed. Hence, this writ petition.
4. Learned counsel Sri.Shivaramu.H.C., appearing for the petitioner placing reliance on the judgment of the Hon'ble Apex Court in the case of K.M.Pratap V/s. K.M.Gourish and Another [2017 (1) CCC 208 [SC], would submit that considering the finishing stage of the building, the petitioner has to be protected, putting him on terms, to complete the construction as observed by the Hon'ble Apex Court in the judgment referred to supra.
5. It is submitted that the petitioner is in possession of the property in question – item No.4 of the suit property, pursuant to the Palupatti of the year 1993 and 1995. Both the Courts below failed to appreciate this vital aspect, the petitioner being in possession of the property in question while granting the temporary injunction as sought for, by the respondent. It is further submitted that the respondent is claiming the rights over the property in question after 38 years since the conversion of the agricultural land into non-agricultural purpose was approved by the competent authority in the year 1963. Learned counsel further submitted that in the event the respondent succeeds in the suit, the property in question shall be handed over to the respondent or shall be demolished.
6. Per contra, learned counsel Sri.Narendra Babu.B.K., appearing for the respondent would submit that the ex-parte temporary injunction was granted by the Trial Court vide order dated 03.04.2018 and the sanction plan was obtained by the petitioner on 12.04.2018 and as on date, it is lapsed. No documents were placed before the Courts below to establish that there was a partition in the year 1993 and 1995 by virtue of which the property in question was fallen to the share of the petitioner and he is in absolute exclusive possession of the said property. It is submitted that unless the partition suit is decided, no exclusive right of any member of the joint Hindu family can be claimed. Further, permitting the petitioner to put up construction would adversely affect the rights of the respondent.
7. I have given my anxious consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
8. In the partition suit filed by the respondent, I.A.No.1 was filed seeking temporary injunction against the petitioner, restraining him to put up construction in the property in question – item No.4 of the suit property. The same was considered by the Trial Court and ex-parte temporary injunction was granted and thereafter it was confirmed against which the appeal was preferred by the petitioner and the same has been dismissed. No doubt at the initial stage, interim order was granted by the Lower Appellate Court staying the order of the Trial Court, the same came to be vacated and appeal has been rejected finally observing that, no documents have been placed on record by the petitioner herein to establish that there was a partition as per the Palupatti of the year 1993 and 1995. Even if such documents are produced, as contended by the learned counsel for the petitioner, this Court cannot adjudicate upon the same at this stage.
9. The dispute between the parties is in as much as whether there was any partition effected between the parties in the year 1993 and 1995. This is a core question that can be answered only after conducting a full pledged trial. It is well settled law that while considering an interim order as sought for, by the respondent, the prima-facie case has to be examined by the Courts to arrive at a decision whether a temporary injunction to restrain the petitioner from further proceeding with the construction could be granted or not, coupled with balance of convenience and hardship that would be caused to the other side, if permitted to proceed with the construction.
10. The arguments of the learned counsel for the petitioner that the petitioner would be permitted to proceed with the construction with the terms and the same can be handed over or demolished depending on the outcome of the original suit, cannot be countenanced for the reason that such an action of demolishing the building would not only a waste of money and time to the parties but a national waste. It would not only lead to multiplicity of proceedings and would cause damage to both the parties, but results in the failure of justice to both the parties.
11. The judgment referred to by the learned counsel for the petitioner was rendered in the context where the building was half way through and it was actually meant to be used as an educational institution. But, when the rights of the private parties are involved and no such benefit would be accrued to the public by proceeding with the construction, it would rather prejudice the rights of the plaintiff.
12. Hence, exercising the supervisory powers under Article 227 of the Constitution of India, this Court can examine whether the orders impugned are passed judiciously, concurrent findings of both the Courts below cannot be held to be perverse or no jurisdictional error is found in the order impugned to interfere with.
Hence, Writ Petition stands dismissed.
NC.
Sd/- JUDGE