IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.21758 OF 2019 (GM-CPC) Between Sri. Prabhakar Gupta, Aged about 75 years, Managing Director, M/s. Ramachandra Rexins Pvt Ltd., No.29/2, 4th Main Road, New Tharagupet, Bengaluru – 560 002. ... Petitioner (By Sri. Viswanatha Shetty., Advocate) AND Sri D.Muniyappa, S/o. Dekappa, Aged about 67 years, R/at Bommasandra Village, Attibele Hobli, Anekal Taluk, Bangalore District – 560 059. ... Respondent (By Sri. T. Thippeswamy, Advocate) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed by the Senior Civil Judge and JMFC, Anekal in M.A.No.4/2016 Dated: 18.1.2019 vide Annexure-P allowing the appeal filed by the respondent setting aside the order passed by he Principal Civil Judge and JMFC, Anekal on IA No.1 in O.S.No.518/2015 Dated 15.2.2016 vide Annexure-K and etc., This writ petition coming on for Preliminary Hearing this day, the court made the following:
ORDER Petitioner/plaintiff has knocked at the doors of this court in its writ jurisdiction laying a challenge to the order dated 18.01.2019 made by learned Senior Civil Judge, Anekal vide Annexure-K, allowing respondent’s M.A.No.4/2016 and thereby, setting at naught the order of temporary injunction dated 15.02.2016 made by the learned Principal Civil Judge, Anekal on petitioner’s I.A.No.1 under Order XXXIX Rules 1 & 2 of CPC, 1908 in his pending civil suit in O.S.No.518/2015. The respondent/defendant has entered caveat and is represented by his learned counsel who opposes the Writ Petition.
2. Learned counsel for the petitioner submits that the land bearing Sy.Nos.209 to 212 of Bommasandra village, Attibele hobli in Anekal taluka of Bangalore district, having been acquired by the KIADB under section 29 of the Karnataka Industrial Area Development Act, 1966 were developed as industrial plots more than three decades ago;
plot No.253 admeasuring 18,205 sq. meters formed in the said lands having been allotted to the petitioner, was the subject of a registered Lease cum Sale Agreement dated 16.06.1982 (Annexure-A); this was followed by Possession Certificate dated 30.04.1982 (Annexure-B); petitioner has established an industry in the name and style of “M/s Ramachandra Rexins Pvt. Ltd” and carrying on its business of manufacturing of PVC leather cloth etc.
3. Learned counsel for the petitioner submits that some dispute between the petitioner and the KIADB having arisen with regard to the plot in question, petitioner filed a suit in O.S.No.1322/2006 for declaration and permanent injunction against the KIADB and the said suit came to be decreed on 06.02.2009 (Annexure-D); petitioner filed E.P.No.17/2009 putting the said decree in execution and got the sale deed comprising the suit property, duly executed and registered on 11.06.2010 (Annexure-E). This judgment and decree came to be set-aside in respondent’s R.A.No.5030/2016 and the matter has been remanded to the trial court for consideration afresh. However, in petitioner’s M.S.A.No.16/2018, this court having framed the question of law, has admitted the Appeal and granted interim order of stay on 12.02.2018 (Annexure-L).
4. Learned counsel for the petitioner further submits that, in the meanwhile, petitioner filed O.S.No.518/2015 seeking a decree of permanent injunction restraining the respondent from interfering with his possession of the suit site wherein, his industry has been running; petitioner’s I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC came to be allowed by the trial court after hearing both the parties vide order of temporary injunction dated 15.02.2016 restraining the respondent from interference; this order has been reversed by the learned Senior Civil Judge at Anekal by allowing respondent’s M.A.No.4/2016 vide impugned order dated 18.01.2019 at Annexure-P, unjustifiably and in gross disregard of the wealth of material supporting the case of the petitioner over that of the respondent.
5. Learned counsel for the caveator/respondent argues vehemently opposing the Writ Petition inter alia contending that the Writ Petition for issuance of Certiorari, does not lie against the orders made by Civil Courts vide Apex Court decision in Radhey Shaym Vs. Chhabi Nath, 2015 (5) SCC 423; the decree obtained by the petitioner against the KIADB having been set-aside in respondent’s Regular Appeal is no longer in existence, notwithstanding the interim stay order granted by this court in petitioner’s M.S.A.No.16/2018; there is absolutely no material produced by the petitioner to show that he is in the possession of the suit site; the learned Senior Civil Judge having exercised his discretion, has granted relief to the respondent which cannot be nullified by this court.
6. I have heard the learned counsel for the petitioner and the learned counsel for the caveatir/respondent. I have perused the Writ Petition Papers and the Apex Court Ruling cited at the Bar. I am of the considered opinion that relief needs to be granted to the petitioner by setting aside the impugned order for the following reasons:
(a) the lands in question having been acquired by the KIADB more than three decades ago, an industrial layout having been formed by it therein, the suit site has been allotted to the petitioner which is evidenced by registered Lease cum Sale Agreement followed by Possession Certificate; the rescinding of the allotment having been found fault with by the Civil Court in petitioner’s suit against the KIADB, petitioner has obtained the execution and registration of the sale deed by putting the said decree in execution; although the said judgment and decree having been set-aside in respondent’s R.A, and the matter having been remanded to the trial court for fresh consideration, this court in petitioner’s M.S.A, has granted ad interim stay after admitting the Appeal on the framed substantial questions of law. Thus, there is abundant material which the trial court has taken note of while issuing the order of temporary injunction in favour of the petitioner which order could not have been set at naught by the learned Senior Civil Judge in respondent’s M.A at all;
(b) the norms governing grant of order of temporary injunction are into place since long. The trial court after considering the material on record and after following these norms, has rightly held that the petitioner has been in the lawful possession of the suit site wherein, he has been running his industry. There is absolutely no material supporting the version of the respondent that it is he who has been in possession of the lands in question including suit site and not the petitioner. Merely because in his R.A, the judgment and decree obtained by the petitioner against the KIADB have been set at naught and the matter is now remanded to the trial court for disposal afresh, it cannot be inferred that the respondent is in possession, especially when the petitioner has been granted ad interim order of stay in his M.S.A, that too, after hearing the respondent. In fact, pursuant to the decree against the KIADB, petitioner has already secured a registered sale deed by putting the same in execution. Therefore, there was no reason for the learned Senior Civil Judge for allowing the respondent’s M.A and thereby, setting aside the order of temporary injunction granted by the trial court;
(c) the contention of the respondent that in Radhey
amenable to writ jurisdiction under Article 226 of the Constitution”, is true. But this Writ Petition in form and substance is the one under Article 227, regardless of Article 226 being inadvertently mentioned in the Writ Petition. In the very decision, the Apex Court has observed at para 25 “There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional.” Further at para 29.2, the Apex Court has observed “Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.” Therefore, the contention of the learned counsel for the respondent that even under Article 227, this court cannot interfere with the orders of the civil courts, regardless of their enormity of injustice, is too far-fetched an argument.
7. In the above circumstances, this Writ Petition succeeds; the impugned order dated 18.01.2019 made by learned Senior Civil Judge, Anekal in respondent’s M.A.No.4/2016 (Annexure-P), stands quashed and consequently, the order dated 15.02.2016 rendered by the learned Principal Civil Judge, Anekal on petitioner’s I.A.No.1 in his pending O.S.No.518/2015 is restored.
8. The observations made hereinabove being confined to disposal of this Writ Petition, shall not in any way influence the trial of the suit.
Costs made easy.
Ru/DS/-
Sd/- JUDGE