Karnataka High Court
Sri Harishraj Urs vs Sri Vinayraj Urs on 19 March, 2013
Equivalent citations: 2014 AIR CC 424 (KAR), (2013) 128 ALLINDCAS 592 (KAR), 2013 (4) AIR KANT HCR 697, AIR 2014 (NOC) (SUPP) 729 (KAR), (2013) 3 KANT LJ 661, (2013) 4 CIVLJ 200
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.27795/2012 (GM-CPC)
BETWEEN:
1. SRI HARISHRAJ URS
S/O LATE C. RAMARAJE URS
AGED ABOUT 40 YEARS.
2. SRI. MAHESHRAJE URS
S/O LATE C. RAMARAJE URS
AGED ABOUT 37 YEARS
BOTH ARE R/O. DODDABELALU VILLAGE,
RAVANDUR HOBLI, PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107.
...PETITIONERS
(BY SRI P.M. SIDDAMALLAPPA FOR
M/S. MYLARAIAH ASSOCIATES, ADVS.)
AND:
1. SRI VINAYRAJ URS
S/O T. SRIKANTARAJ URS
AGED ABOUT 25 YEARS.
2. SMT. SHANTHAMMANNI
D/O ALTE CHELUVE URS
W/O T. SRIKANTARAJE URS
AGED ABOUT 65 YEARS
BOTH ARE R/AT BETTADA THUNGA VILLAGE,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
2
MYSORE DISTRICT - 571 107.
...RESPONDENTS
(BY SRI SUNEEL S. NARAYAN, ADV.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 31.7.2012 PASSED IN MISC.APPEAL NO.26/2011
BY THE ADDL. SR. CIVIL JUDGE & JMFC., HUNSUR SITTING AT
PERIYAPATNA VIDE ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the defendants in O.S.No.206/2009 pending on the file of the Civil Judge (Jr.Dn.) at Periyapatna, which has been instituted by the respondents herein, to pass a judgment and decree of permanent injunction, restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of 6 acres and 2 guntas of land bearing Sy.No.117, situated at Kalkere Village, Ravandur Hobli in Periyapatna Taluk of Mysore District. I.A.No.1 filed along with the suit to grant an order of temporary injunction having been opposed by filing statement of objections and the written statement, the same was dismissed by the 3 learned Trial Judge on 11.11.2011. When the said order was assailed by the plaintiffs by filing M.A.No.26/2011 on the file of Civil Judge (Sr.Dn.), by a judgment dated 31.07.2012, the appeal was allowed, the impugned order therein was set aside and I.A.No.1 filed in the suit was allowed. Aggrieved by the said Judgment, the defendants have filed this writ petition.
2. Sri. P.M. Siddamallappa, learned advocate appearing for the petitioners contended that the impugned judgment is perverse, capricious and illegal. He submitted that the Court below is not justified in reversing the well considered order passed by the Trial Court on 11.11.2011. He submitted that despite the plaintiffs having not made out a case for grant of an order of temporary injunction, that too by an Appellate Court, the impugned judgment has been passed, when the plaintiffs have suppressed the material facts in the plaint and had not approached the Court with clean hands. He submitted that the impugned judgment being irrational and being unsustainable, may be quashed.
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3. Sri. Suneel S. Narayan, learned advocate appearing for the respondents, on the other hand by taking me through the impugned judgment made submission in support of the view taken by the Appellate Court and sought upholding of the judgment passed in the appeal.
4. It is trite that an appeal lies from an order of a Trial Court granting or refusing to grant an interim injunction, but what the Court of appeal has to consider is simply whether or not the Trial Judge who dealt with the matter has properly exercise the jurisdiction which he possesses. The Appellate Court is not to approach the case as if it is a Trial Court. Granting or refusing of injunction is a matter resting in the sound discretion of the Trial Court and consequently the Appellate Court, while examining the matter, in an appeal, should be slow to interfere with the discretionary order passed by the Trial Court, unless the appellants show that the view taken by the Trial Court in the matter is perverse, capricious and illegal and that the 5 impugned order being unsustainable that the plaintiffs/appellants are entitled to an order of temporary injunction, pending decision of the suit.
5. In the plaint, the plaintiffs have not stated anything about their relationship with the defendants. At para 3 of the plaint, it has been averred that the defendants have no manner of right, title, interest and possession over the suit property and on account of enmity with the plaintiffs, trespassed into the suit property on 06.06.2009 with the support of the goondas and caused obstruction to the agricultural operation of the plaintiffs in the suit property.
6. In the written statement dated 09.10.2009 filed by the defendant No.1, at para 7 and 8, relationship of the parties and matters relating to the property held by Cheluve Urs and his wife Devajammanni has been stated and also about the possession and enjoyment of the suit property. Learned Trial Judge while passing the order dated 11.11.2011 has adverted to the relationship of the 6 parties and matters relating to property held by Late Cheluve Urs and his wife Devajammanni has been dealt with. Learned Appellate Judge while passing the impugned Judgment, without finding out whether the Trial Court did not properly exercise its discretion in accordance with settled principles of law and the fact that the plaintiffs had not stated anything about the inter-se relationship between themselves and defendants, has passed the impugned judgment.
7. In the case of Lakshminarasimhiah and others Vs. Yalakki Gowda - AIR 1965 Mysore 310, this court has held as follows:-
"7. The granting or refusing of injunctions is a matter resting in the sound discretion with the trial court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case. In exercising the discretionary power, the courts should be guided by the following guiding principles.
There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless 7 to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well-established principles; for if it issues erroneously, an irreparable injury is inflicted for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case the court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice". (1)Story's Equity Jurisprudence (14th Edn.) Vol. II, pages 639-640.
The rule regarding the caution to be observed by courts and the necessity for a clear cause for granting the relief of injunction has been succinctly stated in the American Jurisprudence as follows:-
"Caution in Granting; Necessity of Clear Case: The extraordinary character of the Injunctive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously only after thoughtful deliberation, and 8 with a full conviction on the part of the court of its urgent necessity. In other words, the relief should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complaint to establish the material allegations entitling him to relief." (2) 28 American Jurisprudence page 217.
Besides the above, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is a well- known maxim of equity that "He who comes into equity must come with clean hands," or as otherwise expressed, "He that hath committed inequity shall not have equity". The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratagem or trick."
8. Keeping in view the relationship of the parties and the averments in para 3 of the plaint that the defendants trespassed into the suit property on 06.06.2009 and caused obstruction for agricultural operation, in my view, the Appellate Court while passing 9 the impugned judgment has not applied its mind to the relevant aspects. The Appellate Court has not examined the case in accordance with law. Since the impugned judgment is perverse, cannot be sustained.
In the result, the writ petition is allowed and the impugned judgment is quashed. M.A.No.26/2011 is restored for consideration and decision in accordance with law. Both the parties are directed to appear before the Appellate Court on 30.03.2013 and receive further orders. Contentions of both the parties are left open for consideration by the Appellate Court. The observation made supra, being limited for consideration of the legality of the impugned judgment, the same shall not influence in any manner the Appellate Court while deciding the appeal.
The appeal be decided expeditiously and before 29.06.2013.
No costs.
Sd/-
JUDGE sac*