IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.3743 OF 2016 (GM-CPC) BETWEEN:
1. SRI.PURANDARA RAI S/O SHEENAPPA RAI AGED ABOUT 53 YEARS R/OF SABALOOR HOUSE KOILA VILLAGE & POST K.C.FARM PUTTUR TALUK, D.K. – 574 201 2. SRI.DINAKARA RAI S/O SHEENAPPA RAI AGED ABOUT 47 YEARS R/OF SABALOOR HOUSE KOILA VILLAGE & POST K.C.FARM PUTTUR TALUK, D.K. – 574 201 3. SRI.SANTHOSH RAI S/O SHEENAPPA RAI AGED ABOUT 43 YEARS R/OF SABALOOR HOUSE KOILA VILLAGE & POST K.C.FARM PUTTUR TALUK, D.K. – 574 201 ... PETITIONERS (BY SRI.S.VISHWAJITH SHETTY, ADVOCATE) AND:
1. SRI.CHENNAPPA GOWDA S/O LATE SHEENAPPA GOWDA AGED ABOUT 36 YEARS R/OF YENIOTHADKA HOUSE KOILA VILLAGE & POST PUTTUR TALUK, D.K. – 574 201 2. SRI.JAWAHAR RAI S/O LATE SHEENAPPA RAI AGED ABOUT 50 YEARS R/OF SABALOOR HOUSE KOILA VILLAGE & POST K.C.FARM PUTTUR TALUK, D.K. – 574 201 ...RESPONDENTS (SRI.S.RAJASHEKAR, ADVOCATE FOR RESPONDENT NO.1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A DATED 18.1.2016 MADE ON I.A.NO.2 IN R.A.NO.40/2015 BY THE COURT OF PRINCIPAL SENIRO CIVIL JUDGE, PUTTUR, D.K., ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants 3 to 5 have filed the present writ petition against the order dated 18.1.2016 passed on I.A.No.2 made in R.A.No.40/2015, allowing the application in-part, temporarily restraining the defendants from causing interference with the peaceful possession and enjoyment of ‘A’ schedule property of the plaintiff, except making use of the Gandhipete-Yenithadka road situated on the ‘A’ schedule property till the pending disposal of the appeal.
2. The respondent No.1, who is the plaintiff before the Trial Court, filed the suit for declaration and permanent injunction against the defendants. After contest, the Trial Court, by the judgment and decree dated 17.11.2015, dismissed the suit. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiff filed R.A.No.40/2015. Along with the appeal, the plaintiff also filed I.A. for temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The Lower Appellate Court considering the application and objections, by the impugned order dated 18.1.2016, allowed the application in part and granted temporary injunction restraining the defendants from causing interference with the peaceful possession and enjoyment of ‘A’ schedule property of the plaintiff except making use of the Gandhipete-Yenithadka road situated on the ‘A’ schedule property till the pending disposal of the appeal. Hence, the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri.S.Vishwajith Shetty, the learned counsel for the petitioners - defendants contended that the impugned order granting temporary injunction is erroneous and contrary to the material on record. He further contended that no temporary injunction was granted during the pendency of the suit in O.S.No.18/2015 and ultimately, the suit came to be dismissed. Therefore, the Lower Appellate Court was not justified in granting temporary injunction, for the first time. He also contended that the Trial Court after full-fledged trial has dismissed the suit holding that the suit schedule property does not exists and the boundaries given by the plaintiff are not correct. The Trial Court also held that the road which the defendants used does not exist in the schedule property, but it exists in survey No.69 and 70 of Koila village, Puttur Taluk. He further contended that the material on record shows that the plaintiff has attempted to close the approach road to the defendants’ house. When that being the position, having regard to the finding of the Trial Court, the Lower Appellate Court is not justified in allowing the application for temporary injunction.
Therefore, he sought to quash the impugned order by allowing the writ petition.
5. Per contra, Sri.S.Rajashekar, the learned counsel for the respondent No.1 - plaintiff sought to justify the impugned order and contended that by the impugned order of the Lower Appellate Court, the defendants are permitted to make use of the road. Therefore, he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is not in dispute that the respondent No.1 – plaintiff filed the suit for declaration and permanent injunction in respect of the suit property. The suit was filed on 29.1.2008. Throughout the proceedings, till the disposal of the suit, that is, till 17.11.2015, there was no interim order of temporary injunction. The suit came to be dismissed on 17.11.2015. Being aggrieved by the judgment and decree of the Trial Court, the plaintiff filed R.A.No.40/2015 before the Principal Senior Civil Judge and A.C.J.M., at Puttur, who by the impugned order has granted temporary injunction on 18.1.2016. The said order passed by the Lower Appellate Court was stayed by this Court on 8.2.2016. For more than one and half year, the interim order is operating and now an application is filed for vacating the interim order. The fact remains that throughout the original proceedings, there was no interim order in favour of the plaintiff and for the first time, the Lower Appellate Court, by the impugned order, granted temporary injunction restraining the defendants to make use of the road.
7. In view of the above said facts without adverting to the merits and demerits, it is suffice to direct the Lower Appellate Court to decide the appeal itself on merits. Till then, it is reasonable to direct both the parties to maintain status quo as of today, till the disposal of the appeal.
8. In view of the aforesaid reasons, the writ petition is disposed of. The Lower Appellate Court is directed to dispose of the appeal in R.A.No.40/2015 as expeditiously as possible, subject to cooperation of both the parties. Till the disposal of the appeal, both the parties are directed to maintain status quo, as of today.
9. Since the main matter itself is disposed of, considering I.A.No.1/2017 for vacating interim order would not arise. Accordingly, I.A.No.1/2017 is dismissed.
Sd/- JUDGE AHB