IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.1355 OF 2013 (CPC) BETWEEN:
1. MR.VINCENT ISSAACS, S/O COMDR. GEORGE ISSAACS (RETD), AGED ABOUT 50 YEARS, RESIDING AT NO.1, 5TH CROSS, HUTCHINS ROAD, CHICO SQUARE, ST.THOMAS TOWN, BENGALURU – 84.
2. MRS.KASTHURI V ISSAACS, W/O MR.VINCENT ISSAACS, AGED ABOUT 45 YEARS, RESIDING AT NO.1, 5TH CROSS, HUTCHINS ROAD, CHICO SQUARE, ST.THOMAS TOWN, BENGALURU – 84. …APPELLANTS (BY SRI.S.V.GIRIDHAR AND CO., ADVOCATE-ABSENT) AND:
MRS.VIDYA HARISH SINHJI R.RANA, W/O LATE GP.CAPT.HARISH SINHJI (RETD), AGED ABOUT 52 YEARS, RESIDING AT APARTMENT, NO.1/3-2, “ESHAAN”, CHICO SQUARE, HUITCHINS ROAD, ST.THOMAS TOWN, BENGALURU – 560084. ...RESPONDENT (BY SRI.KUMAR AND KUMAR ABBHINAV, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC, AGAINST THE ORDER DATED 17.11.2012 PASSED ON I.A.NO.1 IN O.S.NO.2900/2012 ON THE FILE OF THE 42ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC, FOR T.I.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellants is absent. No representation.
2. Heard the counsel for the respondent.
3. This appeal is filed for setting aside the order dated 17.11.2012 passed on IA 1 under Order XXXIX Rule 1 and 2 CPC in O.S. No.2900/2012 passed by the 42nd Additional City Civil and Sessions Judge, Bangalore, (CCH 43).
4. The facts leading to this appeal are that the respondent – plaintiff had filed a suit for permanent injunction and mandatory injunction against the appellants - defendants. The trial Court had passed an order allowing IA 1 filed by the plaintiff and granted the ex parte temporary injunction. Being aggrieved by the said interim order, the defendants have preferred the present appeal.
5. The dispute is in respect of the common passage to be utilized by both the parties. It is submitted that schedule ‘D’ property was the common passage for the benefit of the property of the appellants and as the schedule ‘C’ property was landlocked property, the property owned by late husband of respondent had an access from 5th cross road and consequently the schedule ‘D’ property was the passage available for the benefit of the appellant’s land. The said passage is the only means of access to the house of appellants. The respondent with the assistance of her husband has demolished the wall of the apartment and has field a suit contending that ingress and egress was been prevented on account of the gate.
6. It is the case of the appellants that they had right of easement over the schedule property. But the respondent was attempting to claim the right over the property which has been subject matter of easement in favour of appellants. The trial Court without considering these aspects granted the temporary injunction.
7. The learned counsel for the respondent submitted that since there was no temporary injunction for stay of the interim orders passed by the trial Court on IA 1, further proceedings have been conducted in the trial Court in original suit and now the case is posted for arguments.
8. As could be seen from the impugned order the trial Court has observed that the material produced before the Court by both the parties to show the existence of common passage described as schedule ‘D’ property. In the documents produced by the plaintiff in the schedule, it is clearly mentioned about the existence of common passage in between the properties belonging to both parties. When as per the record there is a common passage left for the enjoyment of both the parties they are entitled to use and enjoy the same without causing any obstruction to other and without demolishing the existing compound wall. Thus, it is evident that the impugned order has not caused obstruction for the use and enjoyment of the common passage by the defendants/appellants. No valid grounds are made out to admit the appeal.
Accordingly, the appeal is dismissed.
Sd/- JUDGE ykl