The President vs Sri. Anburasan on 27 May, 2019

[Cites 3, Cited by 0]

Karnataka High Court

The President vs Sri. Anburasan on 27 May, 2019

Bench: Krishna S. Dixit

                               1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE DAY 27TH OF MAY, 2019

                         BEFORE

    THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT

       WRIT PETITION NO.38484/2018 (GM-CPC)

BETWEEN:

1. The President,
   Global Gold Mines,
   Industrial Co.operative
   Society Limited,
   Dasarahosahalli, BEML,
   KGF - 563 120.

2. The Secretary
   Global Gold Mines,
   Industrial Co.operative
   Society Limited,
   Dasarahosahalli, BEML,
   KGF - 563 120.                  ...Petitioners

(By Sri T. Rajaram, Advocate)

AND:

Sri Anburasan
S/o. Kalairasan
Aged about 45 years
R/at: No.80, Kennedy's
4th Line, Oorgaum Post
K.G.F - 563120.                       ...Respondent

(By Sri Sachin V.R. and
    Ajit Kalyan, Advocates )
                                  2



       This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to call for
records and set aside the order dated 16.12.2017 passed
in O.S. No.358/2017 vide Annexure - E on I.A. No.1 on
the file of the Principal Civil Judge and Additional JMFC
at K.G.F and order dated 09.07.2018 passed in M.A.
No.3/2018 vide Annexure-G on the file of the Senior Civil
Judge and Principal JMFC, K.G.F until conclusion of the
case and etc.

     This Writ Petition coming on for Orders, this day,
the Court made the following:

                              ORDER

In this writ petition, the defendants in O.S.No.358/2017 lay a challenge to the order dated 09.07.2018 made by learned Senior Civil Judge, KGF dismissing there appeal in MA No.3/2018 whereby the order dated 16.12.2017 made by learned Principal Civil Judge, KGF IA No.1 has been allowed granting injunctive relief in favour of the respondent - plaintiff.

2. After service of notice, the respondent- plaintiff had entered appearance through its counsel who makes submission resisting the prayers in the writ petition.

3. Learned counsel for the petitioner - defendants vehemently contends that the learned Civil Judge at KGF is not justified in granting an order of temporary injunction in favour of the respondent - plaintiff concerning the subject property belonging to BGML, a Central Government Public Sector Undertaking ignoring the possession of the petitioners as is evidenced by the letter dated 02.02.2011 a photostat copy whereof is passed on to the Board. He further submits that there is absolutely no material available on record for the Courts below to tilt the balance in favour of the plaintiff's side. He adds that the Appellate Court too is fade away by the version of the trial Court unjustifiably and therefore, indulgence in writ jurisdiction is warranted to set the injustice at naught.

4. Learned counsel for the respondent - plaintiff per contra submits that in it O.S. No. 337/2011 already an injunctive decree has been obtained in respect of the very same property which the Court below has acted upon as a material piece of evidence; the BGML itself has 4 given a letter dated 05.10.2013 to the effect that it is the respondent- plaintiff who has been in the possession of the suit schedule property and that there is no reason to doubt its prima facie truthfulness; lastly, he submits that both the Courts below have concurrently held in favour of the respondent - plaintiff and therefore, in the absence of cogent contra material, the Writ Court ordinarily does not interfere in these matters.

5. I have heard the learned counsel for the parties and perused the writ petition papers. This is not a fit case for indulgence of Writ Court for the following reasons:

i) The judgment and decree obtained by the respondent - plaintiff on 06.07.2011 in O.S.No.337/2011 in respect of the very same property constitutes a prima facie evidentiary material supporting its case as to possession; the contention that the said decree is obtained ex-parte does not make much difference inasmuch as the efficacy level remains the 5 same as between a decree obtained ex-parte and a decree obtained after full-fledged trial;

ii) The BGML which admittedly is the owner of the suit property vide letter dated 05.11.2013 has specifically favoured the case of the respondent - plaintiff and that there is no reason to doubt the version emerging from the said letter;

(iii) The BGML letter dated 02.02.2011 on which there is a manuscript endorsement reads "Paid Rs.2000/- (Two Thousand only) towards payment of rent Arrears on 31/3/2012 vide Receipt No.39058; this version prima facie raises the doubt as to its truthfulness since admittedly this amount is said to have been paid by cash and not by cheque; this apart, the person who has made this endorsement does not have designation and authorization which are apparently lacking in the letter;

(iv) Lastly, the trial Court and the appellate Court having exercised due discretion have made the impugned 6 orders which the Writ Court cannot readily accept in the absence of cogent material supporting the version of the petitioner - defendants.

6. In the above circumstances, this writ petition being devoid of merits and no other ground having been urged, stands dismissed.

Costs made easy.

Sd/-

JUDGE nms

Unlock Advanced Research with PRISMAI

Karnataka High Court