Karnataka High Court
Smt. Gowramma vs Sri. Gavigowda on 5 January, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.21369 OF 2021 (GM-CPC)
BETWEEN:
1 . SMT. GOWRAMMA
S/O LATE RAMAIAH
AGED ABOUT 60 YEARS,
2 . SRI B R ANIL KUMAR
S/O LATE RAMAIAH
AGED ABOUT 41 YEARS,
3 . SRI B R SUNIL KUMAR
S/O LATE RAMAIAH
AGED ABOUT 44 YEARS,
ALL ARE R/O CHUNCHEGOWDANA DODDI
BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT - 577 003.
...PETITIONERS
(BY SRI. PRABHULING K. NAVADGI, SR. COUNSEL FOR
SMT. POONAM S. PATIL, ADVOCATE)
AND:
1. SRI. GAVIGOWDA
S/O LATE MADAKEHULI LINGAIAH
2
AGED ABOUT 56 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
2. SRI B L NAGARAJU
S/O LATE PATEL LINGAIAH
AGED ABOUT 61 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
3. SMT G S VISHALAKSHI
W/O LATE JAYANNA
AGED ABOUT 40 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
4. KUM. BHOOMIKA
D/O LATE JAYANNA
AGED ABOUT 22 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
5. SRI NAGALINGAIAH
S/O LINGAIAH
AGED ABOUT 56 YEARS
R/AT KONASALE VILLAGE
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003
3
6. SMT GOWRAMMA
W/O LATE CHIKKANNA
AGED ABOUT 70 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
7. SRI. RAJU
S/O LATE CHIKKANNA
AGED ABOUT 30 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
8. SRI CHUNCHEGOWDA
S/O LATE CHUNCHEGOWDA
AGED ABOUT 66 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
9. SRI B S KRISHNA
S/O LATE CHIKKASHAMBUGOWDA
AGED ABOUT 68 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
10 . SRI B S SHIVANNA
S/O LATE CHIKKASHAMBUGOWDA
AGED ABOUT 61 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI,
4
MADDUR TALUK
MANDYA DISTRICT-577003.
11 . THE SECRETARY
BESAGARAHALLI GRAMAPANCHAYATH
BESAGARAHALLI VILLAGE
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003
12 . SMT J SAMYUKTHA
W/O SHANKAR
AGED ABOUT 46 YEARS
R/AT NEAR MARUTHI TEMPLE
MARUTHI NAGARA, NAGARABHAVI
BENGALURU-560072
13 . SMT J GUNASHREE
W/O HARSHA
AGED ABOUT 41 YEARS,
R/AT NEAR MARUTHI TEMPLE
MARUTHI NAGARA, NAGARABHAVI
BENGALURU-560 072
14 . SRI C KRISHNA
S/O LATE CHIKKANNA
AGED ABOUT 46 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
15 . PARVATHI
D/O LATE CHIKKANNA
AGED ABOUT 44 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
5
16 . SMT YASHODHA
W/O RAJU
AGED ABOUT 42 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
17 . VISHALAKSHI
D/O CHIKKANNA
AGED ABOUT 40 YEARS,
R/AT CHUNCHEGOWDANADODDI VILLAGE
HAMLET OF BESAGARAHALLI POST
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-577003.
...RESPONDENTS
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V. NARASIMHAN, ADVOCATE FOR R-1 TO R-8)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.6.11.2021 PASSED BY THE
SENOR CIVIL JUDGE MADDUR ON INTERLOCUTORY
APPLICATION NO.3 IN R. A. NO. 45/2021 VIDE
ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners being aggrieved by the order dated 06.11.2021, passed on I.A.No.3 in R.A.No. 6 45/2021 by the Senior Civil Judge, Maddur, have filed this writ petition.
Petitioners are the defendant Nos.1(a), 1(b) & 1(c) and respondents are the plaintiffs and other defendants before the Trial Court. Parties are referred to as per their ranking before the Trial Court.
2. Brief facts leading rise to filing of this petition are as under:
Plaintiffs filed a suit in O.S.No.236/2010 before the Civil Judge (Jr.Dn.), Maddur against the defendants in representative capacity seeking for the relief of declaration and injunction alleging that the suit schedule property is a road wherein plaintiffs and other persons in the village have right of thoroughfare over the suit property and sought for mandatory injunction directing the defendants to remove the 7 temporary cattle shed put up allegedly in the middle of the suit schedule property.
Plaintiffs filed an application before the Trial Court in I.A.No.17 restraining the defendants from putting up construction in the suit schedule property.
The Trial Court allowed the said application vide order dated 05.02.2021, by passing a conditional order directing the plaintiffs to conclude their trial by the end of February 2021 and defendants to conclude their part of evidence by 15.03.2021 and in the event of plaintiffs failing to comply the order, the interim order was directed to be automatically vacated.
Defendant Nos.1 to 3 filed an application in I.A.No.25 seeking discharge of interim order of injunction. Trial Court allowed the said application and restrained the defendants from putting up further construction. Plaintiffs preferred a Miscellaneous 8 Appeal in M.A.No.1/2021 before the Vacation Court, Mandya. The Vacation Court granted interim stay.
Defendants 1(a) to 1(c) filed a writ petition in W.P.No.9680/2021 challenging the interim order of stay passed in M.A.No.1/2021. This court vide order dated 23.07.2021, disposed of the writ petition directing the Trial Court to dispose of the suit within a period of 45 days. In compliance of the order passed by this court, the Trial Court disposed of the suit on 14.09.2021. Defendant Nos.1(a) to 1(c), 2 and 3 being aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in R.A.No.3/2021. In the said appeal, plaintiffs have filed an application in I.A.No.3 under Section 151 of CPC to restrain the defendants from putting up further construction. The Appellate Court has allowed the application vide order dated 06.11.2021, and restrained defendant Nos.1(a) to 1(c), 2 and 3 from 9 putting up further construction. Being aggrieved by the order passed by the Appellate Court, defendant Nos.1(a) to 1(c) have filed this writ petition.
3. Heard Sri. Prabhuling K. Navadgi, learned Senior counsel for the petitioners and Sri. K.N.Nitish, for Sri. K.V.Narasimhan, learned counsel for the respondents No.1 to 8.
4. Learned Senior counsel for the petitioners submits that if permitted, petitioners would complete the construction which is near completion and the same would be subject to the result of the appeal before the Appellate Court, without claiming any equity in the event there is an adverse order. He further submits that petitioner No.1 has filed an affidavit before this court stating the said fact. Hence he submits that in case the petitioner fails in the appeal, the petitioners will demolish the building at 10 their own cost. Hence on these grounds, he submits that if the petitioners are permitted to complete the construction, no injustice would be caused to the respondents, and prays to allow the writ petition.
5. Per contra, learned counsel for the respondents submits that the petitioners have given the same undertaking before the Trial Court and the Trial Court has rejected the said undertaking. He submits that the Appellate Court was justified in passing the impugned order. Hence prays to dismiss the writ petition.
6. Perused the records and considered the submissions made by learned counsel for the parties.
7. It is not in dispute that the petitioners are constructing residential building in the suit schedule property. The petitioners have also produced photographs to show that they have completed 11 substantial portion of construction work. Further the suit filed by the plaintiffs came to be decreed. The execution and operation of the said judgment and decree passed in the said suit came to be stayed in R.A.No.45/2021. The plaintiffs have filed an application restraining defendants from putting up any construction notwithstanding the fact that the petitioners herein have completed substantial portion of the construction work. Further, the petitioners have already filed an undertaking that they will not claim any equity in the event they fail in the appeal. Same is already taken on record. I find it appropriate to place reliance on the judgment of the Hon'ble Apex Court in case of ECE INDUSTRIES LIMITED V/S S.P.REAL ESTATE DEVELOPERS P.LTD., reported in (2009) 12 SCC 776, wherein Hon'ble Apex Court has held as under:
"26. It is well settled that when construction has been made on a land, which is 12 of considerable magnitude, and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment/deposit of the entire amount payable by the defendant to the plaintiff under the agreement, though belatedly, we are of the view that the Court will not, as a matter of course, pass an order of injunction against the other party restraining the other party from raising any construction on the suit property till the disposal of the suit.
27. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the defendants/respondents may be directed to pull down the construction and deliver vacant possession to the plaintiff/appellant when no equity can be claimed for such construction by the respondents-defendants.
28. On the other hand, in our view, if at this stage, an order of injunction is granted against the respondents-defendants from proceeding with further construction in the suit property, it will undoubtedly destroy the construction already made by the respondents-13
defendants and the respondents-defendants will suffer irreparable loss and injury for not allowing them to make construction on the suit property."
8. Further I would like to place reliance on the judgment of Hon'ble High Court of Orissa in the case of SURENDRA MOHARANA VS. RAJKISHORE MOHARANA & OTHERS [2015 (II) OLR 378], wherein Hon'ble High Court of Orissa has reiterated the law laid down by the Hon'ble Apex Court in ECE INDUSTRIES LIMITED (SUPRA), as under:-
"10. In the present case the petitioner has filed an undertaking not to claim any equity in respect of any construction made over the land merely on the basis of construction in case the suit is decreed and partition is allowed. The present petitioner will suffer substantial injury if construction work is stopped as he has invested money and obtained permission for construction. It is well settled that when construction has been made on a land and when the applicant shall not face any substantial injury if order of Injunction is 14 granted as an undertaking furnished not to claim any equity for such construction by the defendants if ultimately the suit filed is decreed the party can be compensated any damages or the defendants may be directed to pull down the construction and deliver vacant possession to the applicant for injunction. In such a situation, an order of injunction if granted against the defendants from proceeding with further construction in the suit property it will undoubtedly destroy the constructions already made by and he will suffer irreparable loss and injury for not allowing him to make such construction as such balance of convenience in his favour. Being a co-sharer he has a prima facie case as parties have already dealt with the property separately pursuing to the amicable settlement. Hence the impugned orders passed by the courts below are error apparent on the face of the record. The aforesaid view also fortified taking into consideration the decision of the Apex Court in the case of ECS INDUSTRIES LIMITED VS. S.P.REAL ESTATE DEVELOPERS P. LTD. & ANR., reported in MANU/SC-1377/2009: JT 2009 (11) SC 30.15
11. In view of the discussion made herein above and considering the aforesaid settled position this court sets aside the impugned orders in exercising the jurisdiction under Article 227 of the Constitution of India. Liberty is granted to the petitioner to complete the construction over the part of suit schedule 'C' land which was allotted to his share with a mark of 'A' portion in the sketch map appended to the interim application in view of the undertaking furnished by him."
9. The above principles can be applied in the instant case also since the appellant had constructed upto a certain stage by the time suit came to be disposed of by the trial court. In view of the same, even if the petitioners are permitted to complete the construction, no injustice would be caused to the respondents. The respondents have not made out prima facie case. It cannot be said that balance of convenience lies in favour of respondents that he has right to seek the construction undertaken 16 by the petitioners to be stopped. In view of undertaking filed by the petitioners, the Appellate Court has not exercised discretion properly for granting injunction against the petitioners.
10. In view of the above discussion, the impugned order passed by the Appellate Court is arbitrary and same is liable to be set aside. Accordingly, I proceed to pass the following:
ORDER The writ petition is allowed.
The impugned order passed by the Appellate Court is set aside. I.A.No.3 is rejected. However, it is made clear that in case if the petitioners fail in the appeal, the petitioners are directed to demolish the building at their own cost as per the undertaking filed by them.17
The Appellate Court is directed to dispose of the appeal as expeditiously as possible.
SD/-
JUDGE RD