IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.943 OF 2019 (GM - CPC) BETWEEN:
Sri.Paramesha S/o Sri.Halage Gowda, Aged about 45 years, Resident of Bantenahalli Village, Kasaba Hobli, Belur Taluk, Hassan District. ... Petitioner (By Sri.B.J.Mahesh, Advocate) AND:
Sri.Manjegowda S/o Late Sri.Rudregowda, Aged about 54 years, Resident of Yarehalli Village, Kasaba Hobli, Belur Taluk, Hassan District – 802 204.
(By Sri.Murthy D.Naik, Advocate) … Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the impugned order dated 19.12.2018 passed by the Civil Judge (Sr.Dvn), Belur in M.A.No.30/2018, vide Annexure – A. Consequently dismiss the application filed by the respondent/plaintiff under Order 39 Rule 1 & 2 of CPC in O.S.No.249/2018 pending on the file of Civil Judge (Jr.Dvn) and JMFC, Belur This writ petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioner-defendant filed the present writ petition against the order dated 19.12.2018 passed by Civil Judge (Sr.Dn), Belur made in Miscellaneous Appeal No.30/2018 allowing the appeal by setting aside the order dated 04.12.2018 made in O.S.No.249/2018 on I.A.No.II granting injuction, restraining the defendant from putting up the construction of building by encroaching ‘B’ suit schedule property measuring East to West 50 feet and North to South 20 feet out of the ‘A’ schedule property, belonging to the plaintiff, pending disposal of the suit.
2. The respondent who is the plaintiff before the trial Court filed suit for declaration, permanent injunction, mandatory injunction and to deliver the possession of ‘B’ schedule property by raising various contentions. The defendant filed written statement denied the plaint averments and contended that the plaintiff is not the owner of the ‘B’ schedule property and defendant is the owner in possession of ‘B’ schedule property, after obtaining necessary plan and permission from the jurisdictional authorities, the construction is made. Therefore, he sought to dismiss the suit.
3. The Plaintiff also filed an application-I.A.No.II under Order 39 Rule 1 and 2 of the Code of Civil Procedure restraining the defendant and his representatives by an order of temporary injunction from constructing any house or building in the ‘B’ suit schedule property. The said application was resisted by the defendant. The trial Court considering the entire material on record, by the order dated 04.12.2018 dismissed the said application. Aggrieved by the said order, the plaintiff filed an appeal in M.A.No.30/2018 before the Lower Appellate Court. The Lower Appellate Court while allowing the application has virtually declared the plaintiff as owner of suit schedule properties and granted injunction for the first time. Hence, the present writ petition is filed.
4. I have heard the learned counsel appearing for the parties to the lis.
5. Sri.Mahesh B.J, learned counsel for the petitioner has contended that the impugned order passed by Lower Appellate Court reversing the order passed by the trial Court granting injunction for first time is errorneous and contrary to the material on record. He would further contend that the suit filed by the plaintiff is for declaration, permanent injunction, mandatory injunction and possession of ‘B’ suit schedule property and the very application filed for injunction would not arose. The trial Court has rightly rejected the application and the discretionary order passed by the trial Court was reversed by Lower Appellate Court without recording any finding that the order passed by the trial Court is perverse, illegal and contrary to the material on record. Therefore, he sought to allow the writ petition.
6. Per contra, Sri.Murthy D.Naik, learned counsel for the respondent sought to justify the impugned order passed by the Lower Appellate Court and contended that the trial Court has not properly appreciated the material produced on record. The Lower Appellate Court considered the entire material on record in proper perspective and granted injunction directing the defendant not to put up construction in ‘B’ schedule property, till disposal of the suit. The same is in accordance with law. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel appearing for the parties and in view of the rival contentions urged by them, the only point arises for consideration is:-
“Whether the impugned order passed by the Lower Appellate Court is justified in granting injunction for the first time reversing the order of trial Court in the facts and circumstances of the present case”.
8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
9. It is not in dispute that the plaintiff-respondent filed a suit for declaration, permanent injunction, mandatory injunction and possession of ‘B’ suit schedule property contending that he is the owner of the property in question and that the defendant has illegally encroached the ‘B’ suit schedule property out of ‘A’ schedule property and constructed the house. Therefore, he sought the prayer which reads as under:
“a) To declare that, plaintiff is the absolute owner of the suit schedule ‘A’ property and further to deliver possession of the ‘B’ schedule propety by demolishing the building illegally constructed by the defendant by way of mandatory injunction and further for permanent injunction restraining the defendant or anybody claiming through him in any manner encroaching or interfering with the peaceful possession of the plaintiff over the suit schedule property and,”
10. The defendant filed written statement denied the entire plaint averments and contended that defendant is in possession of ‘B’ suit schedule property after obtaining necessary plan and approval, he has constructed the house and has not encroached the property of plaintiff as alleged and sought for dismissal of the suit.
11. The prayer sought in the application-I.A.No.II for grant of temporary injuction filed by the plaintiff reads as under:
“For the reasons sworn to in the accompanying affidavit, this Hon’ble Court be pleased to pass an order of temporary injunction restraining the defendant from putting up the house or builidng in ‘B’ schedule property during pendency of the above suit in the interest of justice and equity.
B. Portion of A schedule property encroached by the defendant measuring East to West 50 feet and North to South 20 feet and bounded on the East by: Road, West by: Site No.7, South by: Building being constructed by defendant and North by : A Schedule property i.e., Site No.8 and 9”.
12. The same was resisted by the defendant. The trial Court considering the entire material on record has recorded a finding that the plaintiff has not made out prima facie case. The balance of convenience not lies in favour of the plaintiff. Accordingly, the trial Court rejected the application filed by the plaintiff for temporary injunction and categorically recorded its finding is as under:
“Hence, considering all the materials on record, in my view, at this stage, the balance of convenience lies in favour of defendant and that, if temporary injunction is granted the defendant will be put to irreparable loss and injury. Further, from the materials on record, the defendant is constructing the house in the site purchased by him and by obtaining licence. Hence, at this stage, the plaintiff has not made out prima facie case. Further, the grievance of plaintiff can be met out by imposing condition on the defendant that, the defendant is directed to remove the construction put up by him on his own cost, if the plaintiff succeeds in proving his case, after disposal of the present suit. Hence, for the reasons stated above, I answer point no.1 to 3 in the Negative.
17. Reasons for point No.4:- For the reasons stated above, I proceed to pass the following:
:ORDER:
The application filed by the plaintiff under Order 39 Rule 1 and 2 of C.P.C is hereby dismissed with cost.”
13. Aggrieved by the said order, the respondent- plaintiff filed appeal in M.A.No.30/2018 before Lower Appellate Court. The Lower Appellate Court considering the entire material on record set aside the order passed by the trial Court and has recorded a finding that the plaintiff has produced the document in support of his case and the balance of convenience lies in favour of the plaintiff. If I.A.No.2 is not allowed, the defendant will complete the construction in ‘B’ suit schedule property and the plaintiff will be put to irreparable loss and injury and would also amounts to multiplicity of proceedings. If the temporary injunction is granted restraining the defendant from encroaching the schedule property and putting up construction and also for early disposal of the suit, no prejudice will be caused to the plaintiff. Accordingly, granted injunction in favour of plaintiff.
14. The Lower Appellate Court while considering the Miscellaneous Appeal No.30/2018 filed by the plaintiff- respondent against the order passed by the trial Court rejecting temporary injunction virtually recorded a finding on the merits of the case and held that plaintiff is the owner of the property. The Lower Appellate Court while considering the application for temporary injunction cannot conduct mini trial to decide the prayer of the parties and should confine only to the prayer sought for in the application for temporary injunction. As it is clear from the material on record that the relief sought by the plaintiff is for declaration, permanent injunction and possession of ‘B’ suit schedule property, it means the plaintiff is not in possession of ‘B’ suit schedule property as on the date of filing of the suit. If that is so, the very application filed for temporary injunction restraining the defendant from constructing any house or building in the ‘B’ suit schedule property was not maintainable. The trial Court considering the entire material on record has recorded a finding that the defendant is constructing the house in the site purchased by him. Hence, at this stage, the plaintiff has not made out prima facie case. Further, the grievance of plaintiff can be met out by imposing condition on the defendant that, the defendant is directed to remove the construction put up by him on his own cost, if the plaintiff succeeds in proving his case, after disposal of the present suit. The Lower Appellate Court without considering the very prayer sought in the application, as well as the main prayer proceeded to pass the impugned order and erroneously granted injunction. Even though, as could be seen from the main relief, the plaintiff is seeking possession of ‘B’ suit schedule property. If that is so, the application should not have been entertained by the Lower Appellate Court. The order passed by Lower Appellate Court is illegal without any material and contrary to the record. Infact the main relief is for possession of ‘B’ suit schedule property, granting injunction would not arise.
15. In view of the above, the impugned order passed by the Lower Appellate Court interfering with discretionary order passed by the trial Court cannot be sustained.
16. Learned counsel for the respondent-plaintiff sought to rely on the judgment of the Hon’ble Supreme Court in the case of Home Care Retail Marts Private Limited V/s New Era Fabrics Limited reported in (2009) 17 SCC 429 at Para 8 the Hon’ble Supreme Court observed as under:
“5. In our opinion the High Court had no jurisdiction to interefere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellae court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code”.
17. There is no quarrel with the law laid down by the Hon’ble Supreme Court in the said case. Admittedly, in the present case the main relief is sought for possession of ‘B’ suit schedule property. It means plaintiff is not in possession of ’B’ suit schedule property. The Lower Appellate Court ignoring the very main relief, entertained the application for the first time. It is patently illegal and contrary to the pleadings and material on record and the same cannot be sustained. Therefore, the said judgment has no application to the facts and circumstances of the present case on hand.
18. For the reasons stated above, the writ petition is allowed. The impugned order dated 19.12.2018 passed by the Civil Judge (Sr.Dvn), Belur made in M.A.No.30/2018 is hereby quashed. The order passed by the trial Court on I.A.No.II dated 04.12.2018 made in O.S.No.249/2018 on the file of Civil Judge (Jr.Dvn) is restored.
19. However, it is needless to observe that during the pendency of the present writ petition the defendant filed an affidavit before this Court stating that he has invested huge amount towards the construction and substantial work of construction has already been done. Without conceding to the case of plaintiff/respondent, plaintiff/respondent undertakes that if he is permitted to proceed with the construction subject to outcome of O.S.No.249/2018, in the event of plaintiff-respondent succeeds in the suit, he will not claim equity and would handover possession of the property in favour of the plaintiff/respondent, if need be by clearing the structure. The said submission is placed on record.
Sd/- JUDGE UN