Karnataka High Court
M R Janardha Iyangar, vs Anil S/O Prabhakar Jadhav, on 21 July, 2017
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
WRIT PETITION No.101246/2015 (GM-CPC)
BETWEEN:
1. SHRI M R JANARDHA IYANGAR,
S/O. M.R.RAJ IYANGAR,
AGE:54 YEARS, OCC:BUSINESS,
R/O:RAVINDRA NAGAR, SHIVAMOGA.
2. SHRI M R SRINIVAS IYANGAR,
S/O.M.R.RAJ IYANGAR
AGE:51 YEARS, OCC:BUSINESS,
R/O:RAVINDRA NAGAR,
SHIVAMOGA. ... PETITIONERS
(BY SRI C.N.HARLAPUR, ADV.)
AND:
1. SRI ANIL S/O PRABHAKAR JADHAV,
AGE:54 YEARS, OCC:SERVICE,
R/O:MYADAR ONI, HUBLI.
2. SRI VILAS S/O PRABHAKAR JADHAV,
AGE:56 YEARS, OCC:SERVICE,
R/O:MYADAR ONI, HUBLI.
3. SMT.VASUNDHARA D/O PRABHAKAR JADHAV,
AGE:51 YEARS, OCC:BUSINESS,
R/O:MYADAR ONI, HUBLI.
4. SMT.NUTAN D/O PRABHAKAR JADHAV,
AGE:59 YEARS, OCC:BUSINESS,
R/O:MYADAR ONI, HUBLI.
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5. SMT.RADHA W/O BALAKRISHNA PAWAR,
AGE:48 YEARS, OCC:HOUSEHOLD,
R/O:MYADAR ONI, HUBLI. ... RESPONDENTS
(BY SRI SHIVASAI M.PATIL, ADV. FOR R1 TO R5)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE HON'BLE IV ADDL.CIVIL JUDGE & JMFC, HUBLI
ON I.A.NO.III IN O.S.NO.200/2012 DATED 12.01.2015 PRODUCED
VIDE ANNEXURE-M AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court assailing the order dated 12.01.2015 on IA No.3 in O.S.No.200/2012, as at Annexure-M to the petition.
2. The petitioners herein are the defendants No.2 and 3 in the said suit. The suit in question is filed seeking to eject the petitioners herein from the suit schedule properties. During the pendency of the suit, the plaintiffs have filed an application in IA No.1 seeking temporary injunction. The Court below while disposing of the said application has granted the injunction restraining the defendants from alienating, changing or creating charge 3 over the suit schedule properties till the disposal of the suit. It is in that circumstance, the need for filing the present application in IA No.3 has arisen inasmuch as the defendants No.2 and 3 contend that the shop in which they are carrying on the business of preparing and selling bakery products is in a dilapidated condition and is likely to collapse. Since a right is being putforth in the suit to continue in the said premises, in any event until a decision is taken in the suit they are entitled to carry on the business in the said premises. It is in that circumstance the defendants No.2 and 3 have filed the application seeking permission to renovate and strengthen the said shop premises which is the suit schedule properties. The Court below through the order dated 12.01.2015 has dismissed the application.
3. It is no doubt true that the Court below has referred to the photographs and in that light has arrived at his conclusion. In fact the learned counsel for the 4 respondents has also brought to the notice of this Court a project report prepared by an Engineer enclosing photographs of the shop premises. A prima facie perusal of the same would indicate that the premises in fact is a very old construction and the walls also appear to be in a dilapidated condition. However, keeping in view the injunction that has been granted by the Court below, even if the structural change to the nature of the building is not permissible certainly the intention is not that the building should not even be brought to an appropriate habitable condition so as to avoid either the building collapsing during the pendency of the proceedings or there being any casualties in that regard. Therefore to avoid these eventualities, in any event though the structural nature of the building cannot be changed or altered certainly the strengthening of the building to enable the safety of the occupants and its regular maintenance to carry on business during the pendency of the suit cannot be denied.
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4. Therefore, only for the purpose of ascertaining that the limited required repairs are carried out to strengthen the building at the cost of the petitioners herein, the Court below shall appoint an appropriate Commissioner to tender a report limited to that aspect of the matter and the repair that is suggested by the Commissioner shall be permitted at the cost of the petitioners and if need be under the supervision of the Commissioner. Such consideration shall be made within a time frame.
5. To enable the same, the order dated 12.01.2015 is set aside. IA No.3 is restored to file of the Court below. The Court below shall appoint a Commissioner on the very next date of hearing. The Commissioner shall tender the report to the Court below in the manner as indicated above within 15 days from the date of appointment of the Commissioner. Based on the same, the Court below shall permit the repairs to be effected based on the report of the Commissioner and to the extent to strengthen the building 6 for the safe occupation of the same till the disposal of the suit. Such orders shall be passed by the Court below while disposing of IA No.3 within a period of 15 days from the date of receiving the report from the Commissioner.
Petition is accordingly disposed of.
Sd/-
JUDGE Jm/-