Karnataka High Court
Jainddinsab vs Mahammed Yusuf Sharif, on 8 December, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08TH DAY OF DECEMBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
R.S.A.No.100989/2016 (DAMAGES)
BETWEEN:
JAINDDINSAB,
S/O GOUSE MOHIDDINSAB KAPALI,
AGED ABOUT: 77 YEARS,
OCC: RTD. GOVT. SERVANT,
R/O: GOWRI ANGAL STREET,
KOPPAL, TQ: KOPPAL,
DIST: KOPPAL-583229. ... APPELLANT
(BY SRI.RAJASHEKAR GUNJALLI, ADV.)
AND
MAHAMMED YUSUF SHARIF,
S/O MAHAMMED AHAMED SHARIF,
AGE: 64 YEARS, OCC: RTD EMPLOYEE,
R/AT: C/O. MOHOAN BEE,
W/O ISMAIL SHARIF,
NEAR ZANDA KATTI GOWARI
ANGAL STREET, KOPPAL,
DIST: KOPPAL-583229. ... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 01.09.2016 PASSED IN
R.A.NO.12/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KOPPAL, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 16.04.2014, PASSED IN
O.S.NO.39/2011 ON THE FILE OF THE CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KOPPAL, DISMISSING THE
SUIT FILED FOR DAMAGES.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This is plaintiff's second appeal filed under Section 100 of Code of Civil Procedure, challenging the judgment and decree passed by the Senior Civil Judge at Koppal (for short 'lower Appellate Court') in RA No.12/2014, whereby the judgment and decree passed by the Civil Judge and JMFC., Koppal (for short 'the trial Court') in O.S. No.39/2011 is confirmed.
2. For the sake of convenience, the parties are referred to as per their status before the Trial Court.
3. The plaintiff preferred O.S.No.39/2011 against the defendant for the relief of damages. It was contended that he is the owner in possession of the property bearing No.M.B.No.3-9-801/3-8-729 and M.B.No.3-9-303/A/3-8-
730. Both are adjacent to each other, the same was purchased by the plaintiff and his wife through registered sale deed dated 03.01.2001 and 23.08.2001 from its previous owner. Accordingly, the name of the plaintiff and 3 his wife was entered in the municipal records. From the date of purchase of the said properties, the plaintiff is enjoying the suit property without any interference by anybody. It was contended that the plaintiff started construction in the suit property by investing his hard earned money after obtaining due permission from the local authority. When the construction work was in progress, the defendant filed O.S.No.33/2009 for perpetual and mandatory injunction against the plaintiff and his wife, contending that he is the owner of the property and that the plaintiff by encroaching his property is putting up construction, misleading the Court by producing the created documents, obtained the temporary injunction restraining the plaintiffs not to put up construction. However, the said suit came to be dismissed for default. Due to the grant of temporary injunction by the Hon'ble Court, the plaintiff could not put up construction and the materials stored during that period got damaged. On these pleadings, O.S.No.39/2011 was 4 filed which came to be dismissed. Being aggrieved, Regular Appeal No.12/2014 was filed. The lower appellate Court confirming the judgment and decree passed by the trial Court, dismissed the appeal. Hence, this second appeal.
4. Learned counsel Sri.Rajashekar Gunjalli appearing for the plaintiff/appellant would submit that the plaintiff being a bonafide purchaser of the suit property was putting up construction and owing to the suit No.33/2009 filed by the respondent against the plaintiff on flimsy grounds and obtaining order of temporary injunction misleading the Court has caused great damage and inconvenience to the plaintiff. The plaintiff had stored the construction materials and due to the temporary injunction order granted by the Court on the misrepresentation made by the defendant, he has sustained huge losses apart from mental trauma which he has undergone in addition to facing unnecessary litigation 5 which was not warranted. Though the said O.S.No.33/2009 came to be dismissed for default, the plaintiff having suffered mentally and financially, is entitled for the damages due to the wrongful act of the defendant. To establish the same, adequate material was placed on record but both the Courts below failed to appreciate the same and proceeded to dismiss the suit, which calls for interference by this Court, as substantial question of law arises for consideration in this appeal.
5. Head the learned counsel for the plaintiff/appellant and perused the material on record.
6. The grievance of the plaintiff is that filing of O.S.No.33/2009 by the defendant was the cause for his losses which made him to suffer and accordingly he is entitled for the damages from the defendant for his wrongful act. Both the Courts below analytically have examined the material evidence on record to arrive at a finding that the plaintiff has not established any malice or 6 wrongful intention of the defendant and any ingredients of Section 95 CPC to maintain the suit for damages. Filing a suit and obtaining an order of temporary injunction cannot be construed as wrongful act committed by the defendant. Any act done under judicial sanction albeit improperly obtained temporary injunction cannot be termed as wrongful act of the defendant. The suit of the plaintiff is wholly misconceived. As observed by the trial Court, the plaintiff has failed to prove (i) want of reasonable or probable cause of obtaining injunction,
(ii)defendant acted with malice and (iii) defendant is under a legal obligation to compensate. These findings have been concurred by the lower appellate Court. It is clear that evidence produced by the plaintiff do not establish that the defendant has obtained a temporary injunction order on 12.03.2009 fraudulently. Merely because the suit of the defendant in O.S.No.33/2009 was dismissed for default, it cannot be held that the plaintiff has proved the malicious motive of the defendant in obtaining the 7 temporary injunction order. If the plaintiff was aggrieved by the order of the temporary injunction order, a mechanism is provided under law to challenge the same. The same not having been done by the plaintiff, no motive can be attributed to the defendant for the reason of dismissal of the suit for non prosecution and that cannot be the base for claiming damages.
7. There is no perversity or irregularity found in the orders impugned herein. No substantial question of law arises for consideration.
Appeal stands dismissed as devoid of merits.
Sd/-
JUDGE hmb