Karnataka High Court
Ravi Aswathanarayana vs A. D. Sathyananda on 5 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:19052
WP No. 8248 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 8248 OF 2021 (GM-CPC)
BETWEEN:
1. RAVI ASWATHANARAYANA,
S/O. LATE P. ASWATHANARAYANA,
AGED ABOUT 50 YEARS.
2. DEEPA NAGARAJ,
W/O. RAVI ASWATHANARAYANA,
AGED ABOUT 45 YEARS.
BOTH ARE RESIDING AT NO. 317,
6TH C CROSS, OMBR LAYOUT,
BENGALURU - 560 043.
...PETITIONERS
(BY SRI. R. K. THONTADHARYA, ADVOCATE)
Digitally
signed by AND:
GAYATHRI N
Location: A. D. SATHYANANDA,
HIGH
COURT OF S/O. A. G. DORESWAMY,
KARNATAKA AGED ABOUT 57 YEARS,
RESIDING AT NO. 315,
6TH C CROSS, OMBR LAYOUT,
BENGALURU - 560 043.
...RESPONDENT
(BY SRI. RAKSHITH R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
19.03.2021 IN O.S. NO.778/2019 ON THE FILE OF THE HON'BLE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU
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NC: 2023:KHC:19052
WP No. 8248 of 2021
CITY CCH-43 AS MUCH AS IT REJECTED I.A.NO.5 IN
O.S.NO.778/2019 AS PER ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition, by the defendants in O.S.No.778/2019, is directed against the impugned order dated 19.03.2021 passed on I.A.No.5 in O.S.No.778/2019 by the XLII Additional City Civil and Sessions Judge, Bengaluru City, whereby the said application filed by the petitioners-defendants under Section 151 of CPC is rejected.
2. Heard learned counsel for the petitioners and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent- plaintiff instituted the aforesaid suit for mandatory injunction and other reliefs in relation to plaint 'A' & 'B' schedule properties. The respondent-plaintiff claimed that he was the owner in possession and enjoyment of the plaint 'A' schedule property and that the plaint 'B' schedule property belonging to the petitioners-defendants was situated to the east of the plaint 'A' schedule property. -3-
NC: 2023:KHC:19052 WP No. 8248 of 2021
4. After entering appearance in the suit, the petitioners filed their written statement not only repudiating the claims and contentions of the respondent-plaintiff but also sought for a counter claim by describing their property as written statement counter claim schedule property. It was contended by the petitioners- defendants that plaint 'A' schedule property was situated to the west of the written statement counter claim schedule property.
5. In the suit, the respondent-plaintiff filed an application I.A.No.1 for temporary injunction restraining the petitioners from removing or further demolishing the compound wall of the plaintiff's property on the eastern side or erecting, digging and plastering the same in terms of the rough sketch shown in the plaint 'B' schedule property. So also, the petitioners-defendants filed I.A.No.5 under Section 151 of CPC for permission to repair, restore, plaster and paint the damaged portion of western side outer walls of the defendants' property. Both the applications having been opposed by both parties, the trial Court proceeded to pass a common order on I.A.Nos.1 and 5, whereby I.A.No.1 filed by the respondent- plaintiff was allowed and I.A.No.5 filed by the petitioners- defendants was dismissed by the trial Court. -4-
NC: 2023:KHC:19052 WP No. 8248 of 2021
6. Insofar as allowing of I.A.No.1 is concerned, the petitioners have not challenged the same before this Court. However, aggrieved by the impugned order insofar as it relates to dismissing I.A.No.5 filed by them, the petitioners-defendants are before this Court by way of the present petition.
7. In addition to reiterating the various contentions urged in the present petition and referring to the material on record, learned counsel for the petitioners, on instructions, submits that if the petitioners are permitted to carry out plastering and painting works of the western wall of their property as described as written statement counter claim schedule property, the petitioners would do so without causing any damage to the plaint 'A' schedule property and the petitioners would not claim any equity in this regard.
8. The submission made by the learned counsel for the petitioners is placed on record.
9. Per contra, learned counsel for the respondent submits that there is no merit in the petition and the same is liable to be dismissed.
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NC: 2023:KHC:19052 WP No. 8248 of 2021
10. The materials on record further discloses that there are several contentious issues and disputed questions of law and fact that would arise for consideration between the parties including questions regarding legality, validity and correctness of the construction put up by both the parties on their respective properties.
11. Under these circumstances, without expressing any opinion on the merits/demerits of the rival contentions and keeping the same open to be decided by the trial Court after a full fledged trial, without prejudice to the rights and contentions of the parties, I deem it appropriate to dispose of the petition by modifying the impugned order passed by the trial Court and by consequently disposing of I.A.No.5 by permitting the petitioners to do plastering and painting work to the western wall of the counter claim written statement schedule property and by issuing certain directions in this regard.
12. In the result, I pass the following:
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NC: 2023:KHC:19052 WP No. 8248 of 2021 ORDER
(i) The petition is hereby disposed of.
(ii) The impugned order dated 19.03.2021 passed on I.A.No.5 filed by the petitioners in O.S.No.778/2019 by the XLII Additional City Civil and Sessions Judge, Bengaluru City, stands modified.
(iii) I.A.No.5 filed by the petitioners stands disposed of by permitting the petitioners to carry out the plastering and painting work in respect of the western wall of the counter claim written statement schedule property.
(iv) The aforesaid permission is subject to the condition that the petitioners shall not claim any equities in this regard.
(v) It is however made clear that this order shall not be treated or construed as enabling the petitioners to put up any further construction on the counter claim written statement schedule property.
(vi) The respondent-plaintiff is directed not to obstruct or cause hindrance to the petitioners-defendants to do -7- NC: 2023:KHC:19052 WP No. 8248 of 2021 plastering and painting work as stated supra;
however, the proposed plastering and painting work shall be notified in advance by the petitioners to the learned counsel for the respondent.
(vii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
Sd/-
JUDGE BSR List No.: 1 Sl No.: 36