IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.6161 OF 2017 (GM-CPC) Between:
Sri. S.N. Narendra Babu S/o narayanaswamy, Aged about 40 years, Residing at Sabbenahalli, Kasaba Hobli, Chikkaballapur Taluk-577 001. ... Petitioner (By M. Shivaprakash, Advocate) And:
1. Smt. Ashwathamma D/o Sri. K.G. Munishamachari, W/o Sri. Purushottama Chari, Aged about 30 year, Residing at Seenappa Building, 5th Cross Siddagatta Road, Chikkaballapur Town-577 101.
2. Smt. Manjula, W/o Sri. Umesha Chari, Aged about 27 years, R/at T.G. Tank Road, Chikkaballapur City-577 101.
3. Smt. Eshwaramma W/o Late K.G. Munishamachari, Aged about 50 years, Residing at Seenappa Building, 5th Cross Siddagatta Road, Chikkaballapur City-577 101. …Respondents (Sri. Balakrishna Shastry, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to call for the entire records in O.S.No.135/2007 dated 30.01.2017 on the file of II Addl. Senior Civil Judge and JMFC at Chikkaballapura and quash the impugned order on I.A.No.24 at Annexure-Q dated 30.01.2007 passed by the II Addl. Senior Civil Judge and JMFC at Chikkaballapura and consequently to dismiss the application as not maintainable in law by imposing cost.
This Writ Petition coming on for Orders, this day, the Court made the following:-
O R D E R The petitioner being defendant No.18 in the suit for partition & separate possession of the subject property in O.S.No.135/2007 is invoking the writ jurisdiction of this Court seeking to lay a challenge to the order dated 30.01.2017 made by the learned II Additional Senior Civil Judge, Chikkaballapura, whereby he has been restrained from putting further construction in the subject property. After service of notice, the contesting respondents having entered appearance through their counsel, opposed the petition.
2. Both the learned counsel having argued the matter agree that now the construction in question has been accomplished. Although learned counsel for the contenting respondents, Mr. Shastry says that the said construction is in violation of injunction order, inasmuch as the stay granted by this Court for a limited period, was not extended further. Learned counsel for the petitioner argues that a huge investment with the borrowed money has been made in the subject construction and that keeping the said building vacant, would not enure to the benefit of any of the parties and therefore, request for restraining him from creating tenancy is not justifiable. Learned counsel for the respondents submits that if the third party interest by way of tenancy is created, it would generate several trouble which otherwise can be avoided by keeping the structures vacant subject to the outcome of the suit.
3. I have heard learned counsel of the petitioner and learned counsel for the respondents. I have perused the petition papers.
4. Now that the construction having been accomplished, allegedly with the borrowed money, it enures to nobody’s interest if the subject building is kept vacant and locked. Justice can be done to all the parties if the petitioner is permitted to let out the building subject to the rider that both the petitioner and the intending tenant shall file an undertaking by way of an affidavit in the Court below to the effect that they would be bound by the decree to be passed in the suit and they would accordingly abide by it forthwith.
It is agreed by and between the contending parties that if the said undertaking is breached, that would amount to contempt of not only the trial Court but this Court as well, since it is not just an inter-parte bargain.
Accordingly, the petition is disposed of. No costs.
Sd/-
JUDGE BMC/-