Karnataka High Court
Smt Jayalakshmi vs Sri M N Suresh on 21 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
Writ Petition No. 22802 OF 2017 (GM-CPC)
Between:
1. Smt. Jayalakshmi,
W/o. late G. Manickyam,
Aged about 74 years,
Residing at No.12A, 1st Cross,
1st Main, Hanumanthapura,
Sriramapuram,
Bengaluru - 560 021.
2. Smt. Tamilselvi M.,
D/o. late G. Manickyam,
Aged about 59 years,
Residing at No.36/7,
1st Main Road, 2nd Cross,
Hanumanthapura,
Bengaluru - 560 021.
3. Sri Raja M.,
S/o. late G. Manickyam,
Aged about 57 years,
Residing at No.26, 1st Main Road,
1st Cross, Vivekananda Colony,
Hanumanthapura, Sriramapura,
Bengaluru - 560 021.
4. Smt. Manonmani,
2
D/o. late G. Manickyam,
Aged about 55 years,
Residing at No.43, 2nd Main Road,
Sriramapura, Bengaluru - 560 021.
5. Smt. Reeta,
D/o. late G. Manickyam,
Aged about 52 years,
Residing at No.50, 1st Main,
Hanumanthapura,
Sriramapuram,
Bengaluru - 560 021.
6. Smt. Anndukkarasi,
D/o. late G. Manickyam,
Aged about 50 years,
Residing at Teriyathallapadi,
Uthanagarai Taluk,
Krishnagiri District,
Tamilnadu - 635 307.
7. Smt. Shashikala,
D/o. late G. Manickyam,
Aged about 46 years,
Residing at No.8/A,
Avalamma Choutry,
Basaveshwaranagar,
Bengaluru - 560 021.
8. Smt. Vanishree,
D/o. late G. Manickyam,
Aged about 44 years,
Residing at No.26, Kadavarepalyam,
Indiranagar Post,
Bengaluru - 560 021.
The Petitioners No.1 to 4, 6 and 7
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Represented by petitioner No.5
and SPA Holder
Smt. Reeta,
D/o. late G. Manickyam,
Aged about 52 years,
Residing at No.50,
1st Main, Hanumanthapura,
Sriramapuram,
Bengaluru - 560 021.
... Petitioners
(By Sri Sachidananda K., Advocate)
And:
Sri M.N. Suresh,
S/o. Sri P. Narayanappa,
Aged about 40 years,
Residing at No.161, 1st Main,
7th Cross, Vivekananda Road,
Ramamurthy Nagar,
Dooravani Nagar Post,
Bengaluru - 560 016. ... Respondent
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to set aside the order
dated 18.03.2017 passed by the learned XII Additional
City Civil Judge at Bengaluru in O.S.8383/2013 in
I.A.VI filed by the petitioners under Order XXXIX Rule
2A of Civil Procedure Code at Annexure-A.
This Petition coming on for Preliminary Hearing
this day, the court made the following:
ORDER
The Plaintiffs/Petitioners have filed the present writ petition against the order dated 18.03.2017 on IA 4 No.6 made in O.S.No.8383/2013 on the file of the XII Additional City Civil Judge, Bangalore, dismissing the application filed by the plaintiffs under Order XXXIX Rule 2A read with Section 151 of Code of Civil Procedure.
2. The plaintiffs filed a suit for declaration of title and also to declare the sale deed dated 07.03.2011 executed by one Mr.Subramani in favour of Sri.Subramani registered as document No.5522/2010- 2011 in the office of the Sub Registrar, K.R.Puram, Bangalore as null and void and also for mandatory injunction directing the defendant to demolish the unauthorized and illegal construction put up on the suit schedule property at his cost and if he fails to do so, the Hon'ble Court be pleased to appoint a Commissioner to demolish the unauthorized construction put up by the defendant on the suit schedule property and put the plaintiffs in vacant possession of the suit schedule 5 property and also for permanent injunction against the defendant not to interfere in the possession of suit schedule property contending that he is the absolute owner of the suit schedule property and defendant has no manner of right, title or interest in the suit schedule property. The claim of the defendant was that one Subramani being his vendor had purchased 26 sites from Mr. Abdul Azeez in Sy.nos.29, 30, 31 and 34 by way of registered sale deed dated 08.05.1974 but nowhere it was mentioned that he has purchased site No.70 which belongs to plaintiffs. Inspite of the same, the defendant and his henchmen have threatened the plaintiffs and dispossessed them from the suit schedule property and have hastily put up construction in the suit schedule property and the defendant is likely to alienate the suit schedule property in favour of third party. Therefore, he filed the suit for the relief sought for.
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3. The defendant filed the written statement denying the entire plaint averments and contended that very suit filed by the plaintiffs is not maintainable and originally the suit schedule property was purchased by his vendor Subramani under a registered sale deed dated 08.05.1974 from its original vendor. After the purchase, the defendant's vendor was in peaceful possession and enjoyment of the suit schedule property including various sites purchased by the vendor of the defendant. Thereafter, the defendant after obtaining the Sale Deed and katha has constructed a residential house and he is in peaceful possession and enjoyment of the suit schedule property along with his family members. The plaintiffs are strangers to the suit schedule property. The plaintiffs or their predecessor have no right, title or interest in the suit schedule property and the plaintiffs are not the owners of suit schedule property. Therefore, the defendant sought for dismissal of the suit.
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4. During the pendency of the suit, the plaintiffs filed IA for temporary injunction against the defendant. The trial Court considering the applications and objections by order dated 24.04.2014 allowed IA Nos.1 and 2 filed by the plaintiffs and thereby the defendant was restrained from either making further construction or alienating the suit property till disposal of the suit.
5. The learned counsel for the petitioners submit that the order passed by the trial Court granting temporary injunction on 24.04.2014 has reached finality. Defendant has not filed any appeal before the Appellate Court. Thereafter, the plaintiffs have filed IA under Order XXXIX Rule 2A r/w Section 151 of Code of Civil Procedure to detain the defendant in civil prison for the violation of the order passed by the Court dated 19.11.2013 under the application was made on 03.01.2014. In the said application it was contended 8 that on 19.11.2013, the Court was pleased to grant ad- interim temporary injunction against defendant restraining not to put further construction in suit schedule property and directed the plaintiffs to comply Order 39 Rule 3(a) of Code of Civil Procedure. Therefore, it is necessary to pass orders to detain the defendant in civil prison as prayed for in the accompanying application.
6. The said application was resisted by the defendant by filing objections and contended that the very application filed is frivolous, vexatious and is filed with malafide intention for wrongful gain. The plaintiffs filed suit for declaration and possession. The defendant filed written statement and elaborately submitted his case in the written statement and sought for dismissal of the suit. He further contended that the plaintiffs are not the owners of suit schedule property and they are not in possession and enjoyment of the same. They 9 have claimed the suit schedule property on the basis of the alleged sale deed and they have created the katha and property tax paid receipts based on the said created documents. The plaintiffs have filed the above suit suppressing the material facts and without cause of action they have filed the suit for wrongful gain. Before filing of the suit the constructed building has come up and now plaintiffs have produced different photographs and that photographs are not the photos of suit schedule property. The defendant has completed construction on or before October 2013 before filing of the suit, only the interior work was pending, at that time the plaintiffs have filed the frivolous suit giving wrong information and got interim order of status quo. After intimating the interim order passed by the Hon'ble Court, the defendant stopped the interior work. The defendant has not violated the order of the Court and complied the order passed by the Court. It is further contended that absolutely there is no merits in the 10 application under counter and liable to be dismissed. The plaintiffs have not made out any prima facie case to satisfy the Court to grant interim order and has not placed any materials showing any subsequent events and under the circumstances, the application filed is not maintainable and remedy is only to file miscellaneous petition regarding violation of the court order. Therefore, sought for dismissal of the application.
7. The trial Court considering the application and objections by the impugned order dated 18.03.2017 dismissed the IA filed under Order XXXIX Rule 2A r/w Section 151 of Code of Civil Procedure. Hence, the present writ petition is filed.
8. Sri. Sachidananda K., learned counsel vehemently contended that the impugned order passed by the trial Court rejecting the application filed under Order XXXIX Rule 2A r/w Section 151 of Code of Civil 11 Procedure is erroneous and contrary to material on record. He further contended that the trial Court while granting ad-interim temporary injunction on 24.04.2014 has recorded a finding that inspite of ad- interim temporary injunction order, the defendant continued construction of third floor and at the completion stage, in fact defendant appeared through his advocate on 03.01.2014 only, inspite of knowledge of the ad-interim injunction order passed against him by the Court. He further contended that the trial Court ought to have allowed the application. He further contended that the photographs produced before the trial Court as well as before this Court as per Annexures L, L1 and L2 clearly indicates that the defendant in violation of the order passed by the trial Court dated 19.11.2013 has put up further construction. Therefore, the trial Court ought to have allowed the application. Hence, he sought to quash the impugned order by allowing this petition.
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9. I have heard the learned counsel for the petitioners.
10. It is not in dispute that the plaintiffs have filed suit for declaration declaring that they are the owners of the suit schedule property and to cancel the sale deed dated 07.03.2011 and for granting mandatory injunction directing the defendant to demolish the unauthorized and illegal construction put up on the suit schedule property at his cost and for permanent injunction against the defendant not to interfere in the possession of plaintiffs suit schedule property. The same was disputed by the defendant by filing written statement and specifically contended that defendant is the owner of the property in question under registered sale deed dated 08.05.1974 and plaintiffs are strangers to the family before entire construction was made and defendant has constructed a residential house and he is in peaceful possession and enjoyment of property along 13 with his family members. The plaintiffs are strangers to the suit schedule property, they have no right title or interest including their vendor in respect of the property in question. It is also not in dispute that the trial Court by order dated 19.11.2013 granted ad-interim order of temporary injunction restraining the defendant from putting up further construction. Subsequently the said order was made absolute by order dated 24.04.2014 restraining the defendant from either making further construction or alienating the suit property till disposal of the suit. The said order passed by the trial Court has reached finality.
10. In the interregnum the plaintiffs filed the present application under Order XXXIX Rule 2A r/w Section 151 of Code of Civil Procedure in the pending suit. In the application accompanying affidavit, plaintiffs have only stated to detain the defendant in civil prison as the Court deems fit for having violated 14 the order passed by the Hon'ble Court on 19.11.2013. In the affidavit at para 3 it is stated as under:
"I state that on 19.11.2003, this Hon'ble Court was pleased to grant ad-interim order of temporary injunction against the defendant restraining not put further construction in suit schedule property and directed to comply Order 39 Rule 3(a) of CPC. As per the order of this Hon'ble Court, compliance has been carried out.
Wherefore, I pray that this Hon'ble Court be pleased to pass necessary orders to detain the defendant in civil prison and as prayed for in the accompanying application, in the interest of justice".
Except reference made to the interim order dated 19.11.2013, he has not stated in the affidavit accompanying application as to what was the construction as on the date of grant of Interim Order and what was constructed subsequent to the interim order passed by the Hon'ble Court. Absolutely no averments are made with regard to dis-obeyance of the 15 interim order passed by the trial Court dated 19.11.2013 by the defendant.
11. The said application was resisted by the defendant by filing objections and categorically stated that the plaintiffs are not owners of the suit schedule property and not in possession and they are in possession and enjoyment of the same. They have claimed the suit schedule property on the basis of the alleged sale deed creating katha and property tax receipts. It is further contended that the plaintiffs have suppressed the material fact and without cause of action filed this suit for wrongful gain. Before filing of the suit the construction has come up and they have produced different photographs and the photographs produced by plaintiffs are not the photos of the suit schedule property. The defendant has completed construction on or before October 2013, i.e. before granting of Interim order dated 19.11.2013, only the 16 interior work was pending. At that time that the plaintiffs have filed this frivolous suit giving wrong information and got interim order of status-quo. After intimating the interim order passed by the Court, the defendant has stopped the interior work. The defendant has not violated any court order and complied the order passed by the Court.
12. The trial Court considering the application and objections has recorded a finding that this Court has passed ad-interim temporary injunction on 19.11.2013. This application was filed on 03.01.2014. In support of her case plaintiff has produced several photographs and the CDs. This will not serve any purpose unless the above photographs and CDs are proved in accordance with law. The plaintiff has produced those photos and CDs and they were all marked in evidence. Mere marking of documents is not proof. The plaintiff has not produced negatives of the 17 photos. It is not known how the photographs were taken. It is also not known whether the photos were taken in a camera having reel or the photos are digital photos. She has stated in the cross-examination that the defendant threatened the police and snatched the camera from the photographer and removed the reel. No complaint has been lodged against the defendant for threatening the police and snatching the camera from the photographer. Even the photographer has not been examined in the case to show that defendant has violated the order of the injunction granted by the Court.
13. The trial Court further recorded a finding that it is the contention of the defendant that photographs produced by the plaintiffs do not pertain to the suit schedule property. When such is the objection raised by the defendant in the objection statement itself, the plaintiffs would have been diligent in proving the 18 fact that the photographs pertain to the suit schedule property. No such attempt is made by the plaintiff. The evidence available record is not sufficient to hold that the defendant has violated the order of temporary injunction granted by the Court.
14. The trial Court considering the entire material on record has rightly dismissed the application and same is in accordance with law. When the plaintiffs have made allegation that the defendant has disobeyed the interim order dated 19.11.2013. It is for the petitioners to produce material document to prove the disobedience. Except the application filed nothing is pleaded in the application to dispossess. Therefore, the application is frivolous and wasting precious time of the Court.
15. In view of the aforesaid reasons, the petitioners have not made out any prima facie case to interfere with the impugned order passed by the Court 19 below exercising the powers under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed with cost of Rs.10,000/- payable by the plaintiffs to the defendant before the trial Court, on the next date of hearing.
Sd/-
JUDGE UN