IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.56668 OF 2018 (GM-CPC) BETWEEN:
Sri. Sunil, S/o Prabhakar Aged about 38 years, R/at: Shantinagara, Tumkuru Town, Tumakuru-577 501. … Petitioner (By Sri. M. B. Ryakha, Advocate) AND:
1. Sri. Kavallaiah, S/o Chandraiah, Aged about 42 years, 2. Kum. Kavana, D/o Kavallaiah, Aged about 10 years, 3. Kum. Jayalakshmi, D/o Kavallaiah, Aged about 7 years, Respondent Nos.2 and 3 are minors, represented by their father-1st Respondent Sri.Kavallaiah All are R/at Maralur Village, Kasaba Hobli, Tumkuru Taluk-577 501. … Respondents (By Sri. Fayaz Sab B.G, Advocate for C/R1 (CP.No.11912/2018) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 22.11.2018 in M.A.No.19/2018 passed by the II Additional District and Sessions, at Tumkur vide at Annexure-J and pleased to dismiss the miscellaneous appeal filed by the respondent vide Annexure-G and etc.
This Writ Petition coming on for Preliminary hearing this day, the Court made the following:-
ORDER Sri.M.B.Ryakha, learned counsel for the petitioner. Sri. Fayaz Sab B.G., learned counsel for Caveator/respondent No.1.
2. Petition is admitted for hearing. With the consent of both the parties, the same is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 22.11.2018 passed by the Trial Court, by which appeal preferred by the respondent No.1 under Order XLIII Rule (1)(r) of Code of Civil Procedure, 1908 has been allowed and the order of the trial Court granting injunction in favour of the petitioner has been set aside.
4. When the matter was taken up today, learned counsel for respondent No.1 submitted that even prior to institution of the suit, respondent No.1 had raised substantial questions during the pendency of the suit. Respondent No.1 has completed the construction and the finishing work in respect of the construction remains to be done.
5. Learned counsel further submitted that respondent No.1 shall not undertake any construction activity and will only carry out finishing work, which has already been constructed on the suit property. He further submitted that respondent No.1 undertakes that in case of the success of the petitioner in the civil suit, he shall not claim any equity and will remove the construction at his own cost.
6. To the aforesaid submission, learned counsel for the petitioner has no objection and has submitted that petition be disposed of by recording the statement made by learned counsel for respondent No.1 mentioned in aforesaid paragraph.
7. In view of the aforesaid submission and in the facts of the case, petition is disposed of by taking the submission made by learned counsel for respondent No.1 on record and respondent No.1 is directed to file an undertaking by way of affidavit before the trial Court within one week from the date of receipt of certified copy of this order that he shall not undertake any construction activity and will only carry out the finishing work in respect of the construction, which has already been raised.
8. In addition, respondent No.1 shall furnish an undertaking in the form of affidavit that in the event the petitioner succeeds in the civil suit before the trial Court, he shall not claim any equity and shall remove the construction at his cost and consequences.
Sd/- JUDGE Mds/-