Karnataka High Court
Smt. Manjula vs Thrimurthy on 9 November, 2017
Bench: B.S.Patil, Aravind Kumar
CCC 1026/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
&
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CCC No.1026/2017 (CIVIL)
BETWEEN
SMT.MANJULA,
W/O KARISIDDARADHYA,
AGED ABOUT 34 YEARS,
AGRICULTURIST,
R/O KODIHALLI (KERE KODIHALLI),
KASABA HOBLI, ARASIKERE TALUK,
HASSAN DISTRICT-573 103. ...COMPLAINANT
(By Sri A.V.GANGADHARAPPA, ADV.)
AND
1. THRIMURTHY,
S/O JAYAKUMAR,
AGED ABOUT 43 YEARS,
2. KOTRAIAH,
S/O CHANNAVEERAIAH,
AGED ABOUT 53 YEARS,
BOTH ARE R/O KODIHALLI (KERE KODIHALLI),
KASABA HOBLI,
ARSIKERE TALUK,
HASSAN DISTRICT-573 103. ... ACCUSED
(By Sri K.G.SADASHIVAIAH, ADV.)
CCC 1026/2017
2
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, PRAYING THAT THE HON'BLE HIGH
COURT BE PLEASED TO TAKE COGNIZANCE OF THE WILLFUL
DISOBEDIENCE BY THE ACCUSED TO THE LAWFUL ORDER
DATED 11/04/17 PASSED BY THIS HON'BLE COURT IN
W.P.NO.4336/17, VIDE ANNEXURE-A.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
B.S.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This contempt petition is filed alleging violation of order dated 11.04.2017 passed by this Court in W.P.No.4336/2017 with regard to obstruction said to have been caused by accused nos.1 & 2 to the complainant to have access to her house through the main road i.e., Bengaluru-Hassan road.
2. On 05.09.2017, this Court passed the following order:
"The basis of the present case under the Contempt of Courts Act is the alleged breach and non-compliance of the order dated 11.04.2017 passed by this Court in the main writ petition, whereby this Court had restrained the accused persons from causing obstruction to the complainant by CCC 1026/2017 3 making use of common passage/pathway measuring 8 feet from East to West and 150 feet from North to South situated on the land bearing Sy.Nos.23 and 24 of Kodihalli village (Kere Kodihalli) village, Kasaba Hobli, Arsikere Taluk.
2. We have heard Mr.Gangadharappa A.V., learned counsel appearing for the complainant and Mr. K.G.Sadashivaiah, learned counsel appearing for the accused.
3. It appears from the photograph that the encroachment created is with mud and clay as well as barbed wire. As the injunction is granted against the accused persons, they could not create any obstruction by mud or clay or with barbed wire.
4. However, the learned counsel appearing for the accused declared before us that the obstruction made by mud or clay or barbed wire are not made by the accused but the obstruction is made by one K.C.Nagaraju, who is having house on Sy.No.23/7. He further submitted that so far as K.C.Nagaraju is concerned, a separate civil suit is filed by the complainant seeking CCC 1026/2017 4 easementary right and no temporary injunction is granted in the said civil suit. Therefore, he submitted that the complaint against the accused herein i.e., the respondents in W.P.No.4336/2017 and defendant in O.S.No.106/2016 is frivolous and not maintainable.
5. In our view, the accused cannot contend that they created obstruction because there was a prohibitory order. As per the declaration made before us, the accused did not create any obstruction but such obstruction is said to have been created by one K.C.Nagaraju against whom there is no order nor he was a party to the proceedings.
6. In these circumstances, if the complainant is permitted to remove the obstruction, if required, with the help of police, the accused cannot raise any objection. If such obstruction is created by Mr.K.C.Nagaraju, he may raise objection. Hence, it is observed that the complainant is at liberty to remove the obstruction created over 8 feet road and the accused persons are CCC 1026/2017 5 prohibited from interfering with the complainant from removal of the obstruction created with mud and barbed wire. It is also clarified that if Mr.K.C.Nagaraju has made obstruction by mud and barbed wire, he will be at liberty to resist and object the removal. If Mr.K.C.Nagaraju raises any objection, then the complainant shall not be entitled to remove the obstruction.
Put up the matter on 13.09.2017 for reporting outcome."
3. When the matter was listed again before this Court on 16.10.2017, it was pointed out by the complainant that accused-respondents 1 & 2 did not permit the complainant to remove the obstruction despite specific order passed on 05.09.2017 so as to enable the complainant to have access to her house. Counsel appearing for the respondent- accused strongly denied the assertions made by the complainant and urged that the obstruction was not caused by them, but was caused by one K.C.Nagaraj who is the owner of the house adjoining the house of the accused.
CCC 1026/20176
4. In order to ascertain the state of affairs, this Court called for a report from the local police who were allegedly present at the relevant point of time regarding the aforesaid action attributed to the accused. Accordingly, report has been filed by the local police who have stated that obstruction was indeed caused by accused 1 & 2. It is in this background, accused 1 & 2 have filed additional statement of objections by way of affidavit dated 08.11.2017. They have denied the contents of the report.
5. We have heard the learned Counsel for both parties.
6. Mr. Sadashivaiah, learned Counsel for respondents 1 & 2 submits on instructions from his clients that from the B.H.Road, complainant could have access to her house without any hindrance or obstruction from accused 1 & 2 and that in this regard, affidavit undertaking would be filed within a week from today before this Court. He further points out that accused 1 & 2 cannot be held responsible for the obstruction caused by Nagaraj. CCC 1026/2017 7
7. In this connection, learned Counsel for both parties have drawn the attention of the Court to the sketch prepared by the Court Commissioner which is produced along with the affidavit dated 12.10.2017 filed by accused 1 & 2. In the said sketch, it is clear that from B.H.Road starting from the point indicated with letter 'E' upto the point indicated with letters 'I' & 'L', there is a vacant area through which complainant can proceed to have access to her house at point indicated with letters 'I' & 'L'. Therefore, as per the undertaking given by accused 1 & 2, for the said space having eight feet width leading upto the spot shown by letters 'I' & 'L', which is allegedly blocked due to resistance by Nagaraj, accused 1 & 2 cannot obstruct but thereafter from the spot indicated with letters 'I' and 'L' the accused cannot be held responsible and it will be for the complainant to work out her remedy against Nagaraj in accordance with law.
8. In the light of the above, we are of the view that accused 1 & 2 shall file an undertaking by way of affidavit within a week in compliance with the direction issued by CCC 1026/2017 8 this Court. Hence, present contempt proceedings are closed with a direction to accused 1 & 2 to file affidavit to the aforesaid effect within a week and abide by the affidavit so filed. It is needless to observe that the arrangement and undertaking given would be subject to the result of the suit. This petition is accordingly disposed of.
Sd/-
JUDGE Sd/-
JUDGE KK