Karnataka High Court
Muneshwara Swamy Temple Trust vs Mr M Lakshman on 18 April, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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MFA No. 2386 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL NO.2386 OF 2023 (CPC)
BETWEEN:
1. MUNESHWARA SWAMY TEMPLE TRUST
A REGISTERED TRUST,
OFFICE AT NO.105, 3RD CROSS,
1ST STAGE ADDITIONAL
GIRINAGAR, BANGALORE-560 085,
REPRESENTED BY ITS
PRESIDENT SRI. K.MARIYAPPA.
2. MR.K.MARIYAPPA,
S/O LATE KUNNAIHA,
AGED ABOUT 71 YEARS,
RESIDING AT NO.885,
8TH B CROSS, GIRINAGARA,
2ND STAGE, BENGALURU-560 085.
3. MR.K.BOREGOWDA,
S/O K. KASHIPATHI
Digitally signed AGED ABOUT 58 YEARS,
by VANDANA S
Location: High
RESIDING AT NO.29TH , 7TH MAIN
Court of 6TH CROSS, AVALAHALLI, BDA
Karnataka EXTENSION, BANASHANKARI,
3RD STAGE, BENGALURU-560 085.
4. MR.K.SHANKAR
S/O.K.KASHIPATHI
AGED ABOUT 50 YEARS,
RESIDING AT NO.1616,
4TH F CROSS, AVALAHALLI,
2ND MAIN, BENGLAURU SOUTH,
BENGALURU-560 026.
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MFA No. 2386 of 2023
5. MR. BORALINGAIAH,
S/O BETTAIAH
AGED ABOUT 72 YEARS,
RESIDING AT NO.7/1,
16TH MAIN, 50 FEET ROAD,
MUNESHWARA BLOCK
BENGALURU-560 026.
6. MR. B.GANGADHARA,
S/O BETTAIAH
AGED ABOUT 48 YEARS,
RESIDING AT NO.7/1,
16TH MAIN, MUNESHWARA BLOCK
GIRINAGARA,
BENGALURU-560 026.
7. MR.K.PURUSHOTTAMA
S/O K.KASHIPATHI,
AGED ABOUT 40 YEARS,
RESIDING AT NO.531,
4TH MAIN, HOSKEREHALLI CROSS,
BANASHANKARI, 3RD STAGE,
BENGALURU-560 085.
8. MR.KRISHNAMURTHY,
S/O K.MARIYAPPA,
AGED ABOUT 48 YEARS,
RESIDING GIRI NAGARA,
BENGALURU-560 026.
9. MR. NARAYANAPPA.V
S/O LATE VENKATAPPA,
AGED ABOUT 62 YEARS,
RESIDING AT NO.212/G,
2ND E CROSS, GIRINAGARA,
BANASHANKARI, 3RD STAGE,
BENGALURU-560 085.
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MFA No. 2386 of 2023
10. MR. CHANDRASHEKHAR,
S/O. SHANKARAPPA,
AGED ABOUT 37 YEARS,
RESIDING AT NO.26/41/1,
16TH MAIN, MUNESHWARA BLOCK,
SRINAGAR, BENGALURU SOUTH,
BENGALURU-560 026.
11. MR. DHANANJAYA,
S/O BORALINGAIAH,
AGED 45 YEARS,
RESIDING AT NO.7/1,
16TH MAIN, 50 FEET ROAD,
MUNESHWARA BLOCK,
BENGALURU-560 026.
...APPELLANTS
(BY SRI. THARANATH POOJARY, SR. COUNSEL APPEARING FOR
SMT. JAITHRA J.NARAYAN., ADVOCATE)
AND:
1. MR M LAKSHMAN
S/O LATE MALLESHAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT NO.38, 5TH CROSS,
ANJANEYANAGAR, BANASHANKARI
3RD STAGE, BANGALORE-560 085.
2. MR.K.PARTHASARATHY,
S/O LATE B.T. KEMPANNA,
AGED ABOUT 58 YEARS,
NO.3394, VHBSCS 4TH PHASE,
GIRINAGAR, HOSAKEREHALLI
CROSS, BSK 3RD STAGE,
BANGALORE-560 085.
3. MR. PUTTIAH,
S/O VAJRAPPA,
AGED ABOUT 68 YEARS,
RESIDING AT NO. 15, 1ST CROSS,
AIYANNASHETTY LAYOUT,
BYATRAYANAPURA,
BANFGALORE-560 026.
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MFA No. 2386 of 2023
4. MR.C.LINGAIAH,
S/O LATE CHIKKANNA,
AGED ABOUT 68 YEARS,
RESIDING AT NO.10/2(6),
4TH MAIN RAOD,
MUNESHWARA BLOCK,
BANGALORE-560 085.
...RESPONDENTS
(BY SRI.P.B. AJITH, ADVOCATE FOR C/R-1 & R-2;
NOTICE TO R-3 & R-4 ARE D/W V/O DT: 18.04.2023) )
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST THE
ORDER DT.31.03.2023 PASSED ON IA NO.3 IN O.S.NO.7046/2019 ON
THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, (CCH NO.6), ALLOWING IA NO.3 FILED
U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants in O.S.No.7046/2019 is directed against the impugned order dated 31.03.2023 passed by the XXIV Addl. City Civil & Sessions Judge, Bengaluru City, whereby the application - I.A.No.3 filed by respondent Nos.1 and 2
- plaintiffs for temporary injunction seeking permission to undertake repair work of the compound wall situated on the south edge of the suit schedule property so as to prevent any further damage to the adjacent property was allowed by the trial Court. -5- MFA No. 2386 of 2023
2. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
3. In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the documents produced thereto, learned Senior Counsel for the appellants submits that prior to the impugned order being passed by the trial Court, the appellants had submitted an undertaking on 29.02.2023, which was recorded by the trial Court to the effect that the appellants would undertake to construct the said wall in view of the photographs produced by the plaintiffs, which show that part of the compound wall situated on the south edge had collapsed.
4. On instructions, learned Senior Counsel for the appellants submits that the appellants would carryout repairs / reconstruction of the said compound wall without prejudice to the rights and contentions of the parties and that the said repairs / reconstruction could be made subject to the final out come of the suit and that the appellants would not claim any equities in this regard.
5. Per contra, learned counsel for the respondents submits that if the appellants are put on terms, the respondent -6- MFA No. 2386 of 2023 Nos.1 and 2 - plaintiffs have no objection for appropriate orders to be passed by this Court.
6. A perusal of the material on record including the impugned order will clearly indicate that there are several contentious issues including disputed questions of law and facts which arise for consideration before the trial Court including the question with regard to legality, validity, correctness, etc., of the Supplemental Deed of Trust dated 15.02.2019, which is being challenged by the plaintiffs in the suit.
7. It is an undisputed fact that the compound wall situated on the southern side is in a dilapidated condition / state and the same requires immediate attention and repair / reconstruction.
8. Under these circumstances, though several conditions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to dispose of this appeal by modifying the impugned order and by permitting the appellants - defendants to repair / reconstruct the compound wall on the southern side of the suit schedule property and issue further directions in this regard in relation to the suit schedule property. -7- MFA No. 2386 of 2023
9. In the result, I pass the following:
ORDER
(i) Appeal is hereby disposed of.
(ii) The impugned order dated 31.03.2023 passed in O.S.No.7046/2019 by the XXIV Addl. City Civil & Sessions Judge, Bengaluru City, is modified.
(iii) It is further directed that without prejudice to the rights and contentions of the parties and subject to the final outcome of the suit and also by directing that the appellants shall not claim any equities in this regard, the appellants are permitted to carry out repairs / reconstruction of the compound wall situated on the southern side of the suit schedule property.
(iv) Having regard to the fact that portion of the compound wall has already collapsed, the appellants are directed to carryout out repairs / reconstruction work as expeditiously as possible and at any rate within a period of
10 days from the date of receipt of a copy of this order. -8- MFA No. 2386 of 2023
(v) All rival contentions on all aspects of the matter including repairs / reconstruction of the compound wall are kept open and no opinion is expressed on the same.
(vi) Trial Court is directed to dispose of the suit as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order.
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JUDGE SV List No.: 1 Sl No.: 18