Karnataka High Court
Deepak S/O Chandrakantsa Baddi vs Hasmukh S/O Krishnasa Habib on 14 March, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.102439/2019 (CPC)
BETWEEN:
1. DEEPAK S/O CHANDRAKANTSA BADDI,
AGE:ABOUT 34 YEARS, OCC:BUSINESS,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
2. SRIKANT S/O CHADRAKANTSA BADDI,
AGE:ABOUT 28 YEARS, OCC:BUSINESS,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
... APPELLANTS
(BY SHRI VINOD SHANKAR PAWAR, ADV.)
AND:
1. HASMUKH S/O KRISHNASA HABIB,
AGE:ABOUT 65 YEARS,
OCC:PHOTOGRAPHER,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
2. JITENDRA S/O BHIHARILAL SHAH,
AGE:ABOUT 75 YEARS, OCC:BUSINESS,
R/O 4-B, PARSHVA DARSHAN,
CHSI, CHANDAVARKAR ROAD,
BOREVELI (WEST), MUMBAI.
3. KIRAN S/O BHIHARILAL SHAH,
AGE:ABOUT 68 YEARS, OCC:RETIRED,
R/O 102, TORAL APARTMENTS,
KESHWAPUR, HUBBALLI 580023.
4. KUNAL S/O JEETENDRA SHAH,
AGE:ABOUT 33 YEARS, OCC:PRIVATE JOB,
:2:
R/O 4-B, PARSHVA DARSHAN,
CHSI, CHANDAVARKAR ROAD,
BOREVELI (WEST), MUMBAI.
5. BHAVIN S/O KIRAN SHAH,
AGE:ABOUT 37 YEARS,
OCC:PRIVATE JOB,
R/O 35/10, 2ND FLOOR,
LAXMI ROAD, 5TH CROSS,
SHANTI NAGAR, BANGALORE. ... RESPONDENTS
(BY SHRI DINESH M.KULKARNI, ADV. FOR R1,
R2- DISPENSED WITH)
THIS MFA FILED U/O.43 RULE 1(r) OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED:27.04.2019,
PASSED IN O.S.NO.94/2019 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, ALLOWING THE
IA NO.2 FILED U/O. 39 RULE 1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In a suit for declaration, partition and permanent injunction, the trial Court on the application filed by the plaintiff, has injuncted defendants 5 and 6 from constructing or erecting any structure or building by dismantling the existing portion of the suit property, until the final disposal of the suit.
2. The 5th and 6th defendants are in appeal principally contending that this interim order is being :3: utilized by the plaintiff to contend that they should not undertake any repairs or renovations.
3. The learned counsel for the appellants has filed an affidavit in the form of undertaking in which it is stated as follows:
"4. That first of all I am not going to dismantle or construct or erect any structure or building in the suit property.
5. I will carry out repairs of both walls by plastering with cement without causing damage to the walls.
6. I will carry out painting work of entire shop. I will change shutters of my shop since the existing shutter is damaged without causing any damage to the building more particularly first floor.
7. I will carry out electric work of the building without causing damage to any walls.
8. I will carry out the work of flooring by putting tiles of my floor and put name board of my shop outside the shop.
9. Further, I will put a zinc sheet roof behind my shop in as it is open to sky and I will not cause any damage to the walls and if at all in spite of my due diligence if any damage is caused, I will undertake to get it repaired out of my own cost and expenses. Hence this undertaking in the form of affidavit". :4:
4. Learned counsel submits that the appellants have categorically undertaken not to dismantle or to construct any structure or build in the suit property as ordered by the trial Court and in view of the undertaking, they may be permitted to carry out repairs of both walls by plastering them with cement so as to prevent damage to the walls. He submits that painting the entire shop and changing the shutters of the shop may be permitted, since the existing shutter is damaged and this would not cause any structural alteration to the building.
5. He also states that the electric work is required to be carried out and that he shall carry out the same without causing any damage to the walls. Lastly, he submits that the erection of zinc sheet roof behind the shop would not amount to erecting a structure since that zinc sheet is being put up in that portion of the structure which is open to sky.
6. Learned counsel also submits that the floor existing in the shop is extremely old and he would replace it and this would also not amount to any structural alternation.
:5:
7. To this affidavit, a counter affidavit is filed by the plaintiff stating that the appellants have already carried out work of the inner walls and completed not only the painting work but also replaced the floor tiles and have also secured a new electricity connection. It is stated that a complaint has been lodged against the illegal acts of the appellants and also an application for violation of the order of injunction.
8. This Court had appointed a Court Commissioner to inspect the spot on 26.02.2022. The Commissioner had inspected the premises and she has also produced photographs of the structure.
9. She has stated that the repair work had not been done and the shop needed plastering, painting, flooring, proper electricity wiring and proper water connection. She has also stated that the premises requires the rear portion of the shop to be covered, as the shop was open to sky. She has also stated that the shutters are damaged and the appellant could change the shelter without causing damage to the building. :6:
10. In view of the report of the Commissioner, the appellants are permitted to do the following works:
a. Carry out the plastering of both walls with cement without causing any damage to the walls;
b. Carry out painting of the entire shop; c. Change the shatters of the shop without causing any damage to the building' d. Carry out necessary electrical works without causing any damage to the walls; e. Carry out the work of flooring by putting tiles and also by erecting the name board outside the shop; and lastly f. To put a zinc sheet roof behind the shop.
11. The appellants are directed not to dismantle or construct or erect any structure or building in the suit property, as ordered by the trial Court while carrying out the above works.
12. The appeal is accordingly disposed off, recording the undertaking of the appellants.
13. Having regard to the nature of litigation between the parties and the subject matter of the suit, it would be necessary to request the trial Court to ensure :7: that the suit is disposed off as expeditiously as possible at any rate within a period of one year subject to both the parties cooperating with the Court.
14. Both the learned counsel undertake before me that they will cooperate with the Court and ensure its disposal within a period of one year.
(Sd/-) JUDGE Jm/parag rap hs 1 to 6 Vnp/p arag raphs 7 till end