Karnataka High Court
Sri V C Srinivas vs Sri Bharulal G on 18 July, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.4579/2022 (CPC)
BETWEEN:
SRI V C SRINIVAS
S/O V K CHOODANATHA SETTY,
AGED ABOUT 62 YEARS,
R/AT NO.1, 19TH CROSS,
R T STREET,
BALEPET,
BENGALURU SOUTH,
CHIKPET,
BENGALURU-560053
... APPELLANT
(BY SRI. M.VEERABHADRAIAH, ADVOCATE)
AND:
1. SRI BHARULAL G
S/O LATE SHAH GULABCHAND,
AGED ABOUT 53 YEARS,
2. SRI MAHAVEER KUMAR G
S/O LATE SHAH GULABCHAND,
AGED ABOUT 46 YEARS,
BOTH ARE R/AT NO.28,
ADITHYA MANSON,
F NO.4, 3RD FLOOR,
SAJJAN RAO ROAD,
V V PURAM,
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BENGALURU - 560 004.
ALSO AT:
M/S GULABCHAND AND SONS,
NO.33/2, HANUMANTHARAYA STREET,
(B V K IYENGAR ROAD)
BENGALURU - 560 053)
... RESPONDENTS
(BY SRI.P.D. SURANA, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DATED 31.05.2022 PASSED
OS.NO.6574/2018 ON THE FILE OF THE II ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-17,
DISMISSING THE I.A.NO.5 FILED UNDER ORDER 39 RULE
1 AND 2 R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the plaintiff in O.S.No.6574/2018 on the file of the II Additional City Civil Judge, Bengaluru City, and he is aggrieved by the impugned order dated 31.5.2022. The operative portion of this order reads as under:
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"I.A. No.5 filed by the plaintiff under Order 39 Rules 1 and 2 R/w Section 151 of C.P.C. is dismissed.
The defendants shall file affidavit undertaking that he will not alter the building and will do only plastering and white washing of the walls in suit 'B' schedule property. Further, he will ensure that he will not cause damage to the building while doing the above work."
2. Sri M. Veerabhadraiah, the learned counsel for the appellant, submits that the civil Court has erred in rejecting the plaintiff's application for temporary injunction against the defendants, who could only be tenants, to restrain them from carrying out certain constructions. The civil Court could not have rejected the application in the facts and circumstances of the case; more importantly, the civil Court, even without an application from the respondents, could not have permitted them to undertake any construction much less permit them to plaster and whitewash the subject property. Therefore, this Court must interfere. -4-
3. Sri P.D. Surana, the learned counsel for the respondents, submits that the respondents, who are in possession of the subject property in their own rights, have commenced interior repair work even before the commencement of the suit. He relies upon a set of photographs to submit that the internal plastering and painting work is completed as of today.
4. Sri P.D. Surana, relying upon another set of photographs, submits that the appellant and his son are trying to damage the roof from outside resulting in seepage and the respondents would only ensure plastering and water proofing to stop seepage of water. In rejoinder, Sri M. Veerabhadraiah, stoutly denies that the appellant or any person under him is responsible for any damage to the property.
5. The dispute between the appellant and the respondents is about whether the respondents could -5- have undertaken the plastering work without the permission from the concerned authorities. Sri. M. Veerabhadraiah submits that the respondents should have taken such permission whilst Sri P.D.Surana contests the same. This controversy need not be addressed for the present in the light of the undisputed fact that the internal plastering work is already completed.
6. If the respondents, who are admittedly in possession of the subject property, have completed internal plastering and whitewashing and what remains to be executed is only certain plastering and water proofing in the terrace to prevent seepage of water, there would be no reason for interference by this Court with the impugned order. However, this Court must caution the respondents against carrying out any work except water proofing and plastering in the terrace to prevent seepage.
7. When queried on the suit for eviction pending for over four years, the learned counsels submit -6- that presently the civil Court must hear the pending applications which would include the issue on the maintainability of the suit. The learned counsels are also categorical that they would address the Court without seeking any further adjournments.
8. In the light of the above, the appeal stands disposed of calling upon the parties to assist and cooperate with the civil Court in expeditious disposal of the pending applications and decision on the question of maintainability of the suit and calling upon the civil Court to decide on these pending questions/applications within six weeks. It is reiterated that the respondents shall only execute plastering and waterproofing work on the roof to prevent the seepage.
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JUDGE nv