IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.12181/2018(GM-CPC) BETWEEN:
SRI RAVIKUMAR T S/O LATE THIPPAIAH AGED ABOUT 43 YEARS OCC: AUTO DRIVER NO.124/B, S.O.G. COLONY INDUSTRIAL AREA DAVANAGERE-06.
... PETITIONER (BY SRI VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
SRI SHIVANANDAMURTHY DEAD BY HIS LRS 1. SMT. HANUMAKKA W/O LATE SHIVANANDAMURTHY AGED ABOUT 49 YEARS, R/O 1ST CROSS, GANDHI NAGAR DAVANAGERE-01 2. SRI PRADEEP S/O LATE SHIVANANDAMURTHY, AGED ABOUT 23 YEARS, R/O 1ST CROSS, GANDHI NAGAR DAVANAGERE-01.
3. SRI PASHANTH S/O LATE SHIVANANDAMURTHY AGED ABOUT 23 YEARS, R/O 1ST CROSS, GANDHI NAGAR DAVANAGERE-01 4. SRI BASVARAJAPPA B S/O THIMMAPPA AGED ABOUT 56 YEARS, R/O 2ND MAIN, 12TH CROSS, K.T.J NAGAR, DAVANAGERE-577001.
5. SMT. NALINAMMA W/O BASAVARAJAPPA B AGED ABOUT 50 YEARS, R/O 2ND MAIN, 12TH CROSS, K.T.J NAGAR DAVANAGERE-577001.
... RESPONDENTS (BY SRI V. P. KULKARNI, ADVOCATE FOR C/R5 & R4; R1, R2 & R3 ARE SERVED BUT UNREPRESENTED) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 24.1.2018 PASSED IN M.A. NO.27/2017 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AT DAVANAGERE AS PER ANNEXURE-K CONFIRMING THE ORDER DATED 11.10.2017 PASSED ON IA NO.III IN O.S.NO.683/2012 ON THE FILE OF ADDITIONAL CIVIL JUDGE DAVANAGERE AS PER ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The unsuccessful plaintiff is before this Court against the order dated 24.1.2018 made in M.A. No.27/2017 on the file of the Prl. Senior Civil Judge, Davanagere dismissing the appeal and confirming the order passed by the trial Court dismissing the application for Temporary Injunction.
2. The plaintiff filed the suit for specific performance to enforce the agreement dated 29.1.2002 and to declare that the sale deed dated 29.1.2011 executed by defendant NO.1 in favour of defendant Nos.2 and 3 is null and void and not binding on the plaintiff, contending that the defendant No.1 who is the absolute owner of the suit schedule property has executed agreement in favour of the plaintiff to sell the plaint schedule property for a total consideration of Rs.95,000/- and received Rs.30,000/- on the date of the agreement. Inspite of the repeated demands, the defendant No.1 not executed the sale deed. Therefore the plaintiff filed the suit. The 1st defendant filed the written statement and denied the plaint averments and contended that the suit filed by the plaintiff is barred by law and sought for dismissal of the suit. The defendant Nos.2 and 3 filed the written statement and denied the plaint averments and contended that they are the bonafide purchasers from the 1st defendant and sought for dismissal of the suit.
3. During the pendency of the suit, the plaintiff filed I.A. No.3 for Temporary Injunction under Order 39 Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure to restrain the defendant Nos.2 and 3 from digging the land and raising any columns or foundation in the plaint schedule property, morefully described in the schedule to the plaint as well as I.A., pending disposal of the suit, reiterating the averments made in the plaint. The said application was opposed by the defendants by filing objections. The trial Court considering the application and the objections by the order dated 11.10.2017 dismissed I.A. No.3 holding that the plaintiff has not made out a prima facie case and balance of convenience in his favour for grant of Temporary Injunction. Against the said order passed by the trial Court, the plaintiff filed appeal before the lower appellate Court in M.A. No.27/2017. At the inception, the lower appellate Court granted Temporary Injunction as prayed for. After appearance of the defendants, the lower appellate Court considering the entire material on record by the impugned order dated 24.1.2018 dismissed the appeal and confirmed the order passed by the trial Court. Against the concurrent findings recorded by the Courts below, the present petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Vighneswar S. Shastri, learned counsel for the petitioner – plaintiff contended that the impugned order passed by the Courts below refusing to grant the order of Temporary Injunction, is contrary to the material on record and liable to be set aside. He would further contend that the suit filed by the plaintiff for specific performance and if the defendants are allowed to proceed with the construction, the very suit become infructuous. Therefore the Courts below ought to have directed the parties to maintain status quo till the disposal of the suit. The same has not been done. He contended that if ultimately, the construction is over and thereafter the defendants claim equity, then the very purpose for which suit is filed, will be frustrated. Therefore he sought to allow the writ petition.
6. Per contra, Sri V.P. Kulkarni, learned counsel for the respondents 4 and 5 – defendant Nos.2 and 3 sought to justify the impugned orders passed by the Courts below, rejecting the prayer for grant of Temporary Injunction. He contended that admittedly the recitals in the alleged agreement executed by the defendant No.1 in favour of the plaintiff do not depicts that possession was delivered. In the absence of delivery of possession, the plaintiff cannot file suit for Temporary Injunction and both the Courts below concurrently held that the plaintiff has not made out a prima facie case for grant of Temporary Injunction. Such a concurrent findings of fact cannot be interfered by this Court and sought for dismissal of the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for specific performance to enforce the agreement against the defendant No.1. It is also not in dispute that the 1st defendant alienated the property in question in favour of defendant Nos.2 and 3 before the filing of the suit. Admittedly, the defendant Nos.2 and 3 are in possession of the property and they are trying to put up construction and the memo dated 4.4.2019 along with photographs filed by Respondent Nos.4 and 5 – defendant Nos.2 and 3 depict that the ground flour is already constructed. Both the Courts below concurrently held that the plaintiff has not made out any prima facie case and balance of convenience does not lie in his favour for grant Temporary Injunction. It is also not in dispute that in the agreement alleged to have been executed by the defendant No.1, there is no recital for delivery of possession in favour of the plaintiff. In view of the above, both the Courts rightly refused to grant Temporary Injunction.
8. So far as the contention of the learned counsel for the petitioner – plaintiff that if the defendants are allowed to put up construction during the pendency of the suit, the very purpose for which the suit is filed become frustrated, cannot be accepted for the simple reason that if ultimately the suit is decreed for the specific performance, the defendants shall not claim any equity as they are taking risk during the pendency of the suit to put up construction. In order to protect the right and interest of the plaintiff, the lower appellate Court rightly directed the defendant Nos.2 and 3 to file affidavit before the trial Court and undertake to abide the decision of the trial Court. Learned counsel for the respondents 4 and 5 – defendant Nos.2 and 3 submits respondent Nos.4 and 5 have filed affidavit before the Court. In view of the undertaking filed by defendant Nos.2 and 3, if ultimately the plaintiff succeeds in the suit for specific performance, the defendant Nos.2 and 3 cannot claim any equity.
9. In view of the above, the reasons assigned and the conclusion arrived at by the Courts below are just and proper. The petitioner has not made out any ground to interfere with the impugned orders in exercise of power under Article 227 of the Constitution of India.
10. Accordingly, the writ petition is dismissed.
Any observations made by the Courts below and this Court while considering the application for Temporary Injunction, shall not come in the way of both the parties and they shall establish their respective cases independently in accordance with law.
Sd/-
JUDGE Gss/-