Karnataka High Court
Shri.Krishna Laxman Hosamani vs Smt.Shubhangi Diggambar Kowadkar on 11 November, 2024
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NC: 2024:KHC-D:16464
WP No. 108927 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.108927 OF 2016 (GM-CPC)
BETWEEN:
1. SHRI KRISHNA LAXMAN HOSAMANI,
AGE: 42 YEARS, OCC: WEAVERS,
R/O: H.NO.291, BASAVAN GALLI,
KHASBAG, DIST: BELAGAVI.
2. SHRI PARUSHARAM JIVAJI SAPARE,
AGE: 56 YEARS, OCC: WEAVER,
R/O: SAPPAR GALLI, VADAGAON,
DIST: BELGAVI.
3. SHRI HANUMANT JIVAJI SAPARE,
AGE: 46 YEARS, OCC: WEAVER,
R/O: SAPPAR GALLI, VADAGAON,
DIST: BELGAVI.
4. SHRI KIRAN CHANDRAKANT CHILLAL,
Digitally signed
AGE: 45 YEARS, OCC: KIRANA MERCHANT,
by SAROJA
HANGARAKI
R/O: H.NO.573, SAPPAR GALI, VADAGAON,
Location: High DIST: BELGAVI.
Court of
Karnataka
5. SHRI DEEPAK SHANTARAM CHILLAL,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: PLOT NO.29, DAATRAY GALLI,
VADAGAON, DIST: BELGAVI.
6. SHRI MAHESH JATTAYYA RAIKAR,
AGE: 38 YEARS, OCC: GOLDSMITH,
R/O: H.NO.303, BASAVAN GALLI,
KHASBAG, DIST: BELGAVI.
7. SHRI.SHIVAKUMAR CHANDRAKANT GOLAI,
AGE: 34 YEARS, OCC: WEAVER,
R/O. H.NO.616, SAPPAR GALI,
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WP No. 108927 of 2016
VADAGAON, DIST: BELGAVI.
8. SHRI SURESH PARSHURAMSA DALBANJAN,
AGE: 45 YEARS, OCC: WOOD WORKS,
R/O: ANCHATGERI IONI, DAJIBAN PETH
HUBBALLI, DIST: DHARWAD.
9. SHRI NAMDEV VEERABHADRAPPA SHINAGARI,
AGE: 66 YEAWRS, OCC: WEAVER,
R/O: MALAPRABHA NAGAR, VADAGAON,
DIST: BELAGAVI.
10. SHRI RAJU ANANT MIRAJKAR,
AGE: 38 YEARS, OCC: WEAVER,
R/O: C.C.B. NO.294, CROSS NO.5,
BHARAT NAGAR, SHAHAPUR,
DIST: BELAGAVI.
11. SHRI PRAKASH NAGESH REVANKAR,
AGE: 37 YEARS, OCC: GOLDSMIH,
R/O: BHARAT NAGAR, LAXMI ROAD,
SHAHAPUR, DIST: BELGAVI.
12. SHRI NARAYAN RAMKRISHNA KAMKAR,
AGE: 41 YEARS, OCC: WEAVER,
R/O: H.NO.425, TEGGIN GALLI,
VADAGAON, DIST: BELGAVI.
13. SHRI SURESH NAMADEV MORKAR,
AGE: 51 YEARS, OCC: WEAVER,
R/O: LAXMI GALI, OLD BELGAVI,
DIST: BELGAVI.
14. SMT. VEENA W/O. NARAYAN KAMKAR,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.425, TEGGIN GALLI,
VADAGAON, DIST: BELGAVI.
15. SMT. RADHA KASHEPPA DHAVALI,
AGE: 40 YEARS, OCC: WEAVER,
R/O: MALAPRABHA NAGAR, VADAGAON,
DIST: BELGAVI.
16. SHRI ADIVEPPA RAMCHANDRA BHANDARE,
AGE: 42 YEARS, OCC: WEAVER,
R/O: AT: DOMBARKOPPA,
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WP No. 108927 of 2016
TAL AND DIST: BELGAVI.
17. SHRI CHANDRAKANT MONAJI CHILLAL,
AGE: 69 YEARS, OCC: KIRANI MERCHANT,
R/O: H.NO.573, SAPPAR GALLI,
VADAGAON, DIST BELGAVI.
18. SHRI SHAM RAMCHANDRA CHOUDARI,
AGE: 46 YARS, OCC: TAILORING
R/O: PLOT NO.45, PATIL GALLI,
OLD P. ROAD KHASBAG, DIST: BELGAVI.
19. SHRI VITTHAL RAMCHANDRAPPA MORKAR,
AGE: 67 YEARS, OCC: WEAVER,
R/O: MAAPRABHA NAGAR,
VADAGAON, DIST: BELGAVI.
...PETITIONERS
(BY SRI ANAND R. KOLLI, ADVOCATE)
AND:
1. SMT. SHUBHANGI DIGGAMBAR KOWADKAR,
AGE: 33 YEARS, OCC: HOUSE HOLD WORK,
R/O: 993, 6TH LANE, SHIVAJI NAGAR, BELGAVI.
2. SHRI DATTA IRAPPA KOKITKAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: CTS NO.351/1D, MAIN
MAHADWAR ROAD, BELGAVI.
3. SHRI SUBHAS SADASHIVRAO KOKITKAR,
AGE: 45 YEARS, OCC: BUSINESS,
R/O: CTS NO.351/1A, MAIN
MAHADWAR ROAD, BELGAVI.
4. SHRI SANJAY TUKARAM KOKOTKAR,
AGE: 54 YEARS, OCC: BUAINWAA
R/O. CTS NO.351/1B, MAIN
MAHADWAR ROAD, BELGAVI.
5. SHRI TANAJI RAMACHANDRA GHOTANE,
AGE: 44 YEARS, OCC: AGENT,
R/O: HARIBHAU CHANDAGADKAR MALA
JUNNE - BELGAVI CORNER,
OLD PUNE-BANGALORE ROAD,
BELGAVI.
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WP No. 108927 of 2016
6. SHRI NARAYAN SHANKAR BASTWADKARM
AGE: 45 YEARS, OCC: ENGINEERM
R/O: KAPEEL NIWAS,
NEAR BHATKANDE SCOOL
KAPEELESHWAR COLONY, BELGAVI.
7. SHRI UMESH RAMACHANDRA PAWARM
AGE: 39 YEARS, OCC: AGENTM
R/O: MAIN ROAD, ANAGOL,
NEAR MARATH SCHOOL,
RAGHUNATH PETH,
ANAGOL, BELGAVI.
...RESPONDENTS
(BY SRI ABHILASH HANAMANNAVAR, ADVOCATE FOR
SRI SHREEVATSA S. HEGDE, ADVOCATE FOR R1;
SERVICE OF NOTICE IN RESPECT OF R2, R3 AND
R5 TO R7 IS DISPENSED WITH;
NOTICE ISSUED TO R4 IS SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF IN
THE NATURE OF CERTIORARI, QUASHING THE IMPUGNED ORDER ON
IA.NO.29 AND 31 FILED UNDER 39 RULE 1 AND 2 R/W. 151 OF CPC.,
RESPECTIVELY PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC
BELAGAVI IN OS.NO.608/2010 DATED 03.11.2014 CONSEQUENTLY
SET ASIDE THE ORDER PASSED IN MISCELLANEOUS APPEAL (MA)
NO.62/14, 63/14 AND 76/14 DATED 24.09.2016, PASSED BY THE 1st
ADDITIONAL SENIOR CIVIL JUDGE AND CJM BELAGAVI VIDE
ANNEXURE-F AND G RESPECTIVELY AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2024:KHC-D:16464
WP No. 108927 of 2016
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present petition is filed by defendant Nos.7 to 24 seeking the following reliefs:
"a) Issue a writ of in the nature of certiorari, quashing the impugned order on IA.No.29 and 31 filed under 39 Rule 1 and 2 R/W. 151 of CPC., respectively passed by the Hon'ble Principal Civil Judge and JMFC Belagavi in OS.No.608/2010 dated 03.11.2014 consequently set aside the order passed in Miscellaneous Appeal (MA) No.62/14, 63/14 and 76/14 dated 24.09.2016, passed by the 1st Additional Senior Civil Judge and CJM Belagavi vide Annexure-F and G respectively in the interest of justice and equity.
b) Pass any other as this Hon'bel Court deems fit on the facts circumstances of the case."
2. Respondent No.1/plaintiff filed a suit in O.S.No.608/2010 seeking the following reliefs:
"A) A DECREE for permanent injunction restraining the defendants, their agents, servants, henchmen or any person or persons acting or purporting to act on their behalf from making illegal construction and thereby interfering with the plaintiff's actual, physical possession, occupation and enjoyment of the suit property.
(AA) A Decree for mandatory injuction be granted directing the defendants to demolish and take away all the temporary sheds which they have/caused to have constructed in and upon the suit property land, and in case of their failure to do so the same the removed through the process of the court.-6-
NC: 2024:KHC-D:16464 WP No. 108927 of 2016 B) A DECREE awarding costs of this suit to the plaintiff from the defendants.
C) A DECREE awarding any other relief which this Hon'ble court deems fit and proper to the plaintiff.
D) AN ORDER granting permission to amend the plaint if found necessary."
3. The said suit has been contested by defendant No.7 and also by other defendants. I.A.No.29 was filed by defendant Nos.7 to 25 under Order XXXIX Rule 1 and 2 R/w Section 151 of the Code of Civil Procedure1 for an ad-
interim injunction to restrain the plaintiff from alienating the suit property. The said application was objected by the plaintiff. I.A.No.30 was filed under Order XXXIX Rule 1 & 2 R/w Section 151 of CPC by the plaintiff to restrain defendant Nos.7 to 25 for interfering with the plaintiff's possession of the suit property.
4. The Trial Court while considering the said applications vide its order dated 03.11.2014 has recorded the following findings:
1Hereinafter referred to as 'CPC' -7- NC: 2024:KHC-D:16464 WP No. 108927 of 2016 "26. It is true that the plaintiff has sought the relief of ad- interim injunction against the defendants in I.A.No.30 and sought ad-interim relief in respect of her actual physical possession, occupation and enjoyment of the suit property. It is to be noted that this contention of the plaintiff is clearly opposed by the learned counsel for the defendants No.7 to 25 by filing IA.No.31 and IA.No.29 on the ground that thus plaintiff is attempting to sell the portion of the suit property and in this regard, these defendants have issued a public notion in paper publications and also submitted the memorandum to the Deputy commissioner. It is to be noted that defendants No.7 to 25 have alleged that plaintiff is trying to alienate the suit property to other parties and interfering the actual physical possession of these defendants in respect of suit property. It is true that these defendants No.7 to 25 have not sought any counter claim in respect of the relief sought in the present suit and other allegations, are not incidental to the cause of action as pleaded in the present suit At the same time, this court has already observed while discussing on point Nos. 1 and 2 that this court is not suppose to put forth its opinion regarding possession over the suit property unless and until the evidence on both side is concluded. The allegations made against one another will be considered at the time of trial as now the case is posted for evidence of the defendants.
Under such circumstances, without having proof regarding the actual physical possession over the suit property, both these plaintiff and defendants No. 7 to 25 can not claim the reliefs of ad-interim injunction against one another by claiming that they will be put to irreparable loss and hardship, if no interim injunction is granted in their, favour. Both the parties can go with the trial and get the speedy disposal of the present suit and thereby their rights can be determined as early as possible. By considering these aspects, I am of the opinion that at this stage, both parties have failed to prove that they will be put to irreparable loss and hardship if no interim -8- NC: 2024:KHC-D:16464 WP No. 108927 of 2016 injunction is granted as prayed in I.A. No. 29 to 31. Hence, I answer these two points in the Negative.
28. It is relevant to note that grant of temporary injunction is a discretionary relief of which is to be exercised by the court on well settled judicial principles. While considering the said aspect, this court in also suppose to look into the conduct of the parties, as granting of injunction is an equitable relief. It is to be noted that it is the contention of the plaintiff that she is in actual physical possession of the suit property by the virtue of a gift deed and only after execution of the gift deed in her favour the plaintiff has come up with the present suit on the ground that these defendants are causing interference in her possession and are trying to put up buildings illegally. On the other hand, these defendants have come up with their contention that they have purchased many plots the suit property and they are in actual physical possession and enjoyment of the suit property bearing R.S. No. 566/5 since, the year 1999 and now they have come up with the L.A.s without claiming any counterclaim regarding their alleged rights over the suit property These things clearly show that parties i.e., plaintiff and the defendants No.7 to 25 are not approaching the court with clean hands. This court is not suppose to put forth its opinion regarding possession over the suit property as there is a need to go for trial in respect of said aspect. It is to be noted that this court has already observed regarding prima-face possession and that of the aspect of balance of convenience while discussing on point No.1 and 2. These things clearly dispute the contention of the plaintiff as well as the defendants No.7 to 25 in seeking the relief of temporary injunction against one another. That without going for trial, this plaintiff is seeking ad-interim injunction against the defendants No.7 to 25 and these defendants No.7 to 25 are seeking ad-interim injunction against the plaintiff without leading their evidence. This conduct of both parties clearly disentitle them in seeking the relief of ad- interim injunction against one another. By keeping in view of all these things, both parties have not satisfied the essential requirements of granting ad-interim injunction as prayed in I.A.No.29 and 31."
(emphasis supplied) -9- NC: 2024:KHC-D:16464 WP No. 108927 of 2016
5. The Trial Court vide the said order dated 03.11.2014 dismissed I.A.Nos.29 and 30. Being aggrieved M.A.Nos.62, 63 and 76/2014 was filed before the First Appellate Court. The First Appellate Court vide order dated 24.09.2016 dismissed the M.A.Nos.62 and 63/2014 and allowed M.A.No.76/2014 and passed the following order:
"ORDER Miscellaneous Appeal No.62/2014 and Misc. Appeal No.63/2014 filed by the appellant/defendants No.7 to 25 U/o. 43 Rule 1 (r) of C.P.C., are hereby dismissed with costs.
The order passed by the trial court on I.A.No.29 and 31 are confirmed.
The order of status quo granted by this court on 11/11/2014 in both appeals is vacated.
Miscellaneous Appeal No.76/2014 filed by the appellant/plaintiff U/o. 43 Rule 1 (r) of C.P.C., is hereby allowed with costs.
I.A.No.30 filed by the plaintiff in O.S.No.608/2010 is allowed with costs.
The defendants 7 to 25, their agents or any one claiming through them are hereby restrained by the order of Temporary injunction from causing any illegal interference and obstruction of plaintiff's possession and
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NC: 2024:KHC-D:16464 WP No. 108927 of 2016 enjoyment over the property bearing R.S.No.566/5 measuring 2 acres 31 gunthas bounded by:
To the East : By Sy.No.566/1.
To the West : By Sy.No.566/4.
To the North : By Sy.No.566/2 and 566/3. To the South : By remaining land out of Sy.No.566/5.
For a period of two months from the date of this order, within which the parties shall co-operate for disposal of entire suit on merits.
Send the copy of this judgment to the trial court. The original of the judgment shall be kept in M.A.No.76/2014 and the copies of which be kept in M.A.No.62/2014 and M.A.No.63/2014."
6. Being aggrieved by the order of the First Appellate Court allowing of I.A.No.30 the defendant Nos.7 to 25 have filed the present appeal.
7. It is forthcoming that the Trial Court while considering the case of the plaintiff and defendant Nos.7 to 14 has considered the respective case of the parties under Order XXXIX Rule 1 and 2 R/w Section 151 of CPC
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NC: 2024:KHC-D:16464 WP No. 108927 of 2016 and exercised its discretion in refusing the interim relief sought for by both the parties.
8. The First Appellate Court while considering the appeal filed by the parties, has dismissed the appeals filed by defendant Nos.7 to 25 in M.A.Nos.62 and 63/2014 and allowed the appeal filed by the plaintiff in M.A.No.76/2014.
9. It is relevant to note here that the Trial Court as well as the First Appellate Court has exercised its discretion in refusing interim relief as sought for by defendant Nos.7 to 14. The First Appellate Court has however interfered with the exercise of discretion insofar as I.A.No.30 filed by the plaintiff is concerned and has restrained defendant Nos.7 to 25.
10. In view of the findings recorded by the Trial Court as well as the First Appellate Court wherein they have concurrently exercised their discretion under Order XXXIX Rule 1 of the CPC, the question of this Court interfering with the exercise of said discretion in the present writ petition does not arise.
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NC: 2024:KHC-D:16464 WP No. 108927 of 2016
11. The above writ petition is disposed off by observing that the Trial Court shall compete the trial of the suit as expeditiously as possible.
12. The findings recorded by the Trial Court and the First Appellate Court and also this Court are limited to consideration of the interim applications.
SD/-
(C.M. POONACHA) JUDGE SSP CT-ASC List No.: 1 Sl No.: 48