Karnataka High Court
Smt. J C Dhanamani vs Dr Raviprakash on 20 April, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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MFA No. 8709 of 2022
C/W MFA No. 8710 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL NO. 8709 OF 2022
C/W
MISCELLANEOUS FIRST APPEAL NO. 8710 OF 2022(CPC)
IN M.F.A.No.8709/2022
BETWEEN:
SMT. J C DHANAMANI
W/O LATE DR L SHIVALINGAIAH
AGED 68 YEARS
R/O NO. 94/P, 8TH CROSS, 11TH MAIN,
RMV EXTENSION, SADASHIVNAGAR
BANGALORE - 560 080.
...APPELLANT
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL APPEARING FOR
SRI. B.M. HALA SWAMY, ADVOCATE .,ADVOCATE)
AND:
Digitally signed DR RAVIPRAKASH
by VANDANA S S/O LATE DR L SHIVALINGAIAH
Location: High AGED 62 YEARS
Court of R/O KALA FARM
Karnataka SUBRAMANYAPURA POST
CHANNASANDRA
BANGALORE - 560 061.
...RESPONDENT
(BY SRI. R.B. SADASIVAPPA, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 29.11.2022 PASSED ON I.A.NO.
2 IN OS.NO.5099/2022 ON THE FILE OF THE 24TH ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.6,
REJECTING THE I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2
OF CPC.
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MFA No. 8709 of 2022
C/W MFA No. 8710 of 2022
IN M.F.A.No.8710/2022
BETWEEN:
SMT. J.C. DHANAMANI
W/O LATE DR. L. SHIVALINGAIAH
AGE: 68 YEARS
R/O NO. 94/P, 8TH CROSS, 11TH MAIN
RMV EXTENSION, SADASHIVNAGAR
BENGALURU - 560 080.
PRESENTLY SCHEDULE PROPERTY LOCKED BY THE
RESPONDENT SO CURRENTLY RESIDING AT
NO. 271, 3RD CROSS, KEB LAYOUT
RMV 2ND STAGE, SANJAY NAGAR
BENGALURU - 560 094.
...APPELLANT
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL APPEARING FOR
SRI. B.M. HALA SWAMY, ADVOCATE .,ADVOCATE)
AND:
DR RAVIPRAKASH
S/O LATE DR L SHIVALINGAIAH
AGED 62 YEARS
R/O KALA FARM
SUBRAMANYAPURA POST
CHANNASANDRA
BANGALORE - 560 061.
...RESPONDENT
(BY SRI. R.B. SADASIVAPPA, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 29.11.2022 PASSED ON I.A.NO.
1 IN OS.NO.5099/2022 ON THE FILE OF THE 24TH ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.6,
REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
OF CPC.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 8709 of 2022
C/W MFA No. 8710 of 2022
JUDGMENT
Both these appeals arise out of O.S.No.5099/2022 pending on the file of the XXIV Addl.City Civil and Sessions Judge, Bangalore.
2. The appellant - plaintiff instituted the aforesaid suit against the respondent - defendant for permanent injunction restraining him from dispossessing the plaintiff from the suit schedule immovable property and from interfering with her possession and enjoyment of the suit schedule property and for other reliefs. The suit is being contested by the respondent - defendant who has filed his written statement. In the suit, appellant filed two applications viz., I.A.1 for temporary injunction restraining the respondent from interfering with her possession and enjoyment of the suit schedule property and I.A.2 for ad-interim order of mandatory injunction directing the respondent to remove the MS grill erected over the utility and main door of the suit schedule property and the CCTV cameras pending disposal of the suit. Both the applications having been opposed by the respondent, the trial court proceeded to pass the impugned order rejecting both I.A.Nos. -4- MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022 1 and 2, aggrieved by which, the appellant is before this Court by way of the present appeals.
3. MFA No.8710/2022 is directed against the impugned order dated 29.11.2022 rejecting I.A.No.1, while MFA N.8709/2022 is directed against rejection of I.A.No.2 passed by the trial court.
4. Heard learned Senior counsel for the appellant and learned counsel for the respondent and perused the material on record.
5. In addition to reiterating the various contentions urged in the appeals and referring to the material on record, learned Senior counsel for the appellant submits that the trial court committed a grave and serious error of law, fact and jurisdiction in coming to the conclusion that the appellant had not made out a prima-facie case and that the balance of convenience was not in favour of the plaintiff and that she would not be put to irreparable loss and injury if temporary injunction as sought for in I.A.Nos. 1 and 2 by the appellant is not granted. It is submitted that the trial court committed an error in holding that the appellant had admitted that -5- MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022 she was already dispossessed from the suit schedule property as on the date of institution of the suit. It is further submitted that the impugned order passed by the trial court is not only contrary to the material on record but also well settled principles governing grant of temporary injunction and as such, the impugned order deserves to be set aside. In support of his contentions, learned Senior counsel for the appellant placed reliance upon the following decisions:-
1. Shanmukhappa Revanshiddappa Keshetti vs. Murageppa Chanabasappa Shyabadi - ILR 1964 MYS 670
2. Dorad Cawasji Warden vs Coomi Sorabji Warden ILR 1990 SC 867
3. Sadashiv Shyama swant (dead) and others vs. Anita Anant Sawanth - (2010) 3 SCC 385
4. Appukuttan Niar vs Hydrose - LAW (KER) - 2003 -
8 -65
6. Per contra, learned counsel for the respondent would support the impugned order and submit that there is no merit in the appeal and the same is liable to be dismissed. In support of his contentions, learned counsel for the respondent has placed reliance upon the following decisions:-
1. Mohd. Mehtab Kharn and others vs. Khushanum IBRAHIM Khan - (2013) 9 SCC 221;-6- MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022
2. Balasubramanian and Anr. vs. M. Arockiasamy ( dead) By Lrs. - AIR 2021 SC 4221;
3. T.V. Rmakrishna Reddy v. M. Mallappa and Anrs. - AIR 2021 SC 4293;
4. Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs and Ors. - AIR 2008 SC 2033;
5. Padhiyar Prahladji Chenaji (Dead) By LrS. -
AIR ONLINE SC 2022 SC 232;
6. Maria Margarida Swquieria Fernandes and Ors vs. Erasmo Jack De Sequeria (Dead ) through L.rs. - AIR 2012 SC 1727;
7. A Shanmugam vs. Ariya Kshatriya RAjakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Rept. by its President. - AIR 2012 SC 2010;
8. Jharkhand State Housing Board vs Didar Singh and Anr. - 2019 17 SCC 692;
9. Babu Rajendra vs. Basalingappa and Others
- 2020 (3) KCCR 1659;
10. M/s. Patel Enterprises vs. M.P. Ahjuja - ILR 1992 KAR 3772;
11. Basant Singh vs. Janki Singh and others - AIR 1961 SC 341;
12. Kashi Math Samsthan and Anr. vs. Srimad Sudhindra Thirtha Swamy and other - AIR 2010 SC 296;
7. Both sides have also relied upon several documents in support of their respective claims, which will be referred to during the course of this order.
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8. A perusal of the material on record will indicate that it is the specific contention of the appellant that she is the wife of the deceased L.Shivalingaiah, who expired on 18.06.2022. The said Shivalingaiah was earlier married to Smt.Thejovathi, who expired on 24.07.1994 and they have two children, Dr.Raviprakash - the respondent herein and his younger brother - Sri.L.S.Ramesh. It is contended that the suit schedule property was originally allotted to Smt.Siddamma - mother of Shivalingaiah and subsequent to her demise on 19.09.1990, there was a partition between Shivalingaiah and his two sons i.e., Sri.Raviprakash - the respondent herein and Ramesh and in the said partition, that was reduced into writing vide Declaration dated 15.08.1993, the suit schedule property was allotted to Shivalingaiah who became the absolute owner of the property. It is further contended that subsequent to the demise of his first wife - Thejovathi, Shivalingaiah got married to the appellant herein and both of them started residing in the suit schedule property and the appellant was recognised to be the wife of late Shivalingaiah during his life time.
9. Appellant contends that the respondent instituted a suit in O.S.No.7900/2008 on the file of the City Civil Judge, Bangalore, -8- MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022 seeking partition and separate possession of his alleged share in the suit schedule property. In the said suit, the respondent contended that the appellant herein was a stranger to the family as well as the suit schedule property and was trying to knock off the same by using undue influence over Shivalingaiah, who was arrayed as 1st defendant in the suit, in which, the 2nd son - Sri.L.S.Ramesh was arrayed as 2nd defendant. The said suit was contested by Shivalingaiah, who not only disputed the claim of the respondent herein but also specifically admitted and contended that the appellant herein was his legally wedded wife and that the suit schedule property was owned and possessed by him absolutely and that the suit filed by the respondent was liable to be dismissed. The 2nd son - L.S.Ramesh remained ex-parte and did not contest the suit.
10. By the judgment and decree dated 26.06.2019, the trial court dismissed the said suit filed by the respondent herein inter alia holding that the suit schedule property was not a joint family property and that the same was absolutely owned and possessed by Shivalingaiah. During the course of the judgment, the trial court also recorded a finding that the appellant herein was the wife of -9- MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022 Shivalingaiah and that his both sons including the respondent herein and L.S.Ramesh were residing elsewhere and not in the suit schedule property. It is contended that the said judgment and decree passed in O.S.No.7900/2008 dated 26.06.2019 rejecting the claim of the respondent has attained finality and become conclusive and binding upon the respondent.
11. The appellant further contended that during his life time, Shivalingaiah executed two registered gift deeds both dated 19.01.2019 in favour of the appellant in respect of certain immovable properties. So also, Shivalingaiah executed and registered his last Will and testament dated 11.07.2019 bequeathing the suit schedule property absolutely in favour of the appellant. Upon the demise of Shivalingaiah on 18.06.2022, plaintiff became the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property and the respondent does not have any manner of right, title, interest or possession over the same.
12. The appellant also contended that she is in possession and enjoyment of the suit schedule property and was residing there along with Shivalingaiah and taking care of him and attend to his
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 daily activities. Due to ill health, Shivalingaiah was hospitalized during February, 2022 and was being taken care of by the appellant. The respondent registered a false criminal case against the appellant by lodging a complaint on 05.04.2022 against her and one Venkateshmurthy and pressurized the jurisdictional police authorities to take action against the appellant. The appellant approached this Court in Crl.P.No.3466/2022 which was disposed of vide order dated 15.06.2022 directing investigation to be proceeded with by the police authorities. However, since there was threat of arrest, appellant applied and obtained antivipatory bail before the jurisdictional Sessions Court.
13. Appellant contents that subsequent to the demise of Shivalingaiah on 18.06.2022, respondent lodged additional complaint on 22.06.2022 putting forth false and frivolous against the appellant, her daughters and son-in-law and pressurized the police authorities to force them to stay away from the suit schedule property and taking advantage of the situation, the respondent illegally and highhandedly erected a material steel grill with a lock on the main door, compound gate and utility door of the suit schedule property and also fixed CCTV cameras on 18.07.2022
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 and 23.07.2022 and attempted to interfere with the appellant's possession and enjoyment of the suit schedule property. Under these circumstances, plaintiff filed the instant suit and the instant applications seeking injunctive reliefs against the respondent - defendant.
14. The respondent - defendant filed his written statement and objections to I.A.Nos. 1 and 2 disputing and denying the claims and contentions of the appellant. The various allegations and claim of the appellant as regards the suit schedule property being owned and possessed by Shivalingaiah, alleged gift deeds dated 19.01.2019, alleged Will dated 11.07.2019 etc., have been disputed and denied by the respondent. It is contended that the suit schedule property belonged to Shivalingaiah's mother Smt.Siddamma and pursuant to a Will cum Trust Declaration Deed dated 23.03.1985 executed by her, the suit schedule property became owned and possessed by the defendant also and not exclusively by Shivalingaiah. It is contended that the plaintiff was merely a care taker / maid servant and was not the wife of Shivalingaiah and she was not in possession and enjoyment of the suit schedule property. It is further contended that the plaintiff was
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 not residing along with Shivalingaiah which fact has been admitted by him in his evidence in O.S.No.7900/2008 filed by the respondent herein. The respondent has also put forth various averments in order to contend that the appellant was not in possession or enjoyment of the suit schedule property and that the suit was not maintainable and was liable to be dismissed. Thus, denying and disputing the claims and contentions of the appellant, respondent sought for dismissal of the suit as well as the applications.
15. A perusal of the impugned order will indicate that the trial court has dismissed I.A.Nos. 1 and 2 by recording the following findings:-
(i) The suit filed by the appellant - plaintiff was one for bare injunction;
(ii) The plaintiff was not staying in the suit schedule property as on the date of presentation of the suit and she has admitted that she was already dispossessed prior to filing of the suit.
(iii) The plaintiff had not made out prima - facie case that she was the wife of Shivalingaiah or that she was in possession or enjoyment of the suit schedule property.
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022
(iv) The documents produced by the appellant including earlier court proceedings, orders, etc., as well as judgments relied upon both sides need not be gone into, since appellant had not made out a prima-facie case for grant of temporary injunction and she had admitted that she was not in possession and enjoyment of the suit schedule property, in view of the contention of the respondent that the appellant was not the wife and only a care taker, who had not established her prior residence of the suit schedule property.
16. The points that arise for consideration in the present appeals are as under:-
(i) Whether the trial court was justified in rejecting I.A.No.1 for temporary prohibitory injunction filed by the appellant?
(ii) Whether the trial court was justified in rejecting I.A.No.2 for temporary mandatory injunction filed by the appellant?
Re-Point No.1:-
17. As stated supra, the appellant - plaintiff filed the instant I.A.No.1 for temporary injunction restraining the respondent - defendant from interfering with her possession and enjoyment of the suit schedule property and the same was dismissed by the trial
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 court by passing the impugned order. In my considered opinion, the impugned order passed by the trial court rejecting I.A.No.1 is perverse, arbitrary and contrary to law as well as the material on record and the same deserves to be set aside for the following reasons:-
(i) The trial court has failed to consider and appreciate that the appellant had prima-facie established that she was the wife of late Shivalingaiah. In this context, the trial court failed to consider the documents viz., written statement and other pleadings in O.S.no.7900/2008 filed by the respondent against Shivalingaiah and his son, wherein Shivalingaiah has categorically admitted that the appellant herein was his wife, the finding recorded by the trial court in its judgment and decree dated 26.06.2019 passed in the said O.S.No.7900/2008 to the effect that the appellant was the wife of Shivalingaiah, Aadhar card, Voter-ID card, passport etc., all of which indicate that the appellant was the wife of Shivalingaiah, registered gift deeds dated 19.02.2019 and registered Will dated 11.07.2019 executed by Shivalingaiah in favour of the appellant, all of which, cumulatively indicate that prima-facie the appellant was the wife of late Shivalingaiah; consequently, the finding recorded by the trial court in the impugned order that the appellant had not
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established that she was the wife of Shivalingaiah, deserves to be set aside.
(ii) The trial court also failed to consider and appreciate the material on record including the aforesaid documents which not only show that the appellant was the wife of Shivalingaiah, but also that she was not only residing along with him but that she was in lawful and peaceful possession and enjoyment of the suit schedule property. In this context, the trial court failed to consider and appreciate that the aforesaid documents prima-facie established that the appellant was in possession and enjoyment of the suit schedule property as on the date of the suit, particularly when some of the documents are public documents, documents issued by statutory authorities etc., and consequently, the finding of the trial court in this regard also deserves to be set aside.
(iii) The trial court also committed an error in misreading, misconstruing and misinterpreting the plaint averments in order to come to the erroneous conclusion that the appellant - plaintiff had admitted that she was not in possession or enjoyment of the suit schedule property and that she had been dispossessed from the same prior to institution of the suit. In this context, a perusal of the plaint averments will clearly indicate that there is no such
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 admission whatsoever made by the appellant which could have been made the basis by the trial court to come to the conclusion that the appellant had admitted that she had been dispossessed and not on possession of the suit schedule property and as such, even this finding deserves to be set aside.
(iv) Before the trial court, the respondent had filed an application I.A.3 under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground that the suit for permanent injunction was not maintainable in view of the admission of the appellant that she was not in possession of the suit schedule property. The said application having been rejected by the trial court, the respondent preferred CRP No.30/2023 before this Court, which dismissed the said petition vide order dated 02.03.2023 by holding as under:-
1. Before adverting to the rival contentions, it is relevant to state that it is trite law that for the purpose of consideration of an application for rejection of plaint under Order VII Rule 11(a) and (d) CPC, it is only the plaint averments and documents produced by the plaintiff, without any addition or subtraction that can be taken into consideration and neither the written statement nor objections, documents etc., filed by the defendant or the contentions urged by the defendant in the application and affidavit filed under Order VII Rule 11
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CPC can be looked into while deciding such an application. It is well settled that disputed questions of law and fact cannot be gone into at the time of considering an application for rejection of plaint and the same would have to be decided only after a full fledged trial. In this context, a reading of the plaint will indicate that the plaintiff has averred as under:
"04. The Defendant and his brother L.S.Ramesh had started to reside separately by taking their respective share after the partition of 15.08.1993. Thereafter, L. Shivalingaiah and his wife Smt. Thejovathi were only residing in the suit schedule property. Smt. Thejovathi, the first wife of L. Shivalingaiah died on 24.07.1994. There was no one to look after L. Shivalingaiah as he was residing alone. In view of the request made by L. Shivalingaiah, plaintiff got married L. Shivalingaiah in order to look after him as a wife. Thus, the plaintiff is the legally wedded wife late L. Shivalingaiah after the death of Smt. Thejovathi. The Defendant has never taken care of his father late. L.Shivalingaiah though the requested him to come and stay with him.
06. The Defendant had instituted a suit against his father L.Shivalingaiah in O.S.No. 7900/2008 before the Hon'ble Addl.City Civil Judge XXXVIII, Bangalore seeking for partition and separate possession of the suit schedule property. The Defendant had deliberately suppressed the fact of prior partition in the said suit. He had also alleged that this plaintiff is a total stranger to the family and his father has come under undue influence of plaintiff though he knew very well that this plaintiff was married to L.Shivalingaiah and both were residing together since several years. The Defendant's father, L.Shivalingaiah, has filed a written statement in the said suit i.e., O.S.
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No.7900/2008 contending that the suit filed by his son i.e., defendant herein is frivolous and with a dishonest intention to know off suit schedule property. He has further pleaded that the plaintiff herein, Smt. J.C. Dhanamani is his legally wedded wife and she is taking care of him in all respect. The Defendant's brother L.S.Ramesh though served with the summons in the said suit did not participate in the said suit and was placed exparte. After full fledged trial, the suit filed by the Defendant in O.S. 7900/2008 against his father ( plaintiffs Husband) was dismissed holding that there was a partition between the Defendant and his family members and the suit schedule property was allotted to L.Shivalingaiah in partition dated: 15.08.1993. The copies of the plaint in O.S. No. 7900/2008, written statement and the Judgment passed therein are produced herewith as Document No.6 to 8 respectively.
8. The husband of the plaintiff has also executed a registered will on 11.07.2019 in favour of the plaintiff bequeathing the suit schedule property and other moveable properties in her favor. The plaintiff was appointed as the Executor in the said will. It is also recited that apart from the plaintiff and her two daughters, i.e., Shireen Arshad and Neeloofar Arshad there are no nobody to look after and take care of him till his last breath. In case if the plaintiff dies before her husband, in such an event the property should devolve upon her two daughters. It is submitted further that one S.H.Venkatesh Murthy, the personal secretary to the plaintiff husband and the other and Smt. Sujata M. Kadam, being a family friend, who have witnessed the execution and also the attesting witness to the said will. A copy of the registered will dated: 11.07.2019, registered in the office of the Sub- Registrar Rajajinagar is produced herewith as Document No.11.
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09. The plaintiff and her deceased husband were residing in the suit schedule property. The husband of the plaintiff was a diabetic for last 50 years and taking insulin 4 times a day, he was a heart patient and undergone radiation for 28 times at HCG due to Prostate cancer, taking regular medicines for blood pressure, knee operation conducted on right leg in 2015 at Bangalore hospital. In view of the utmost care taken by the plaintiff, her husband L.Shivalingaiah with multiple ailments, had quite good health at 92 years of his age. The plaintiff being wife had ensured proper and healthy food to him. The plaintiff's husband used to attend this daily activities.
10. The plaintiff's husband was not consuming food in the second week of February 2022. The plaintiff had informed the same to the defendant as well. Therefore she admitted her husband L. Shivalingaiah to Manipal Hospital, Millers Road on 18.02.2022. After admission, it was diagnosed by the doctors at Manipal Hospital that plaintiff's husband had liver infection, conducting dialysis every alternative day as kidney was not functioning property, stroke caused due to blood clot in the right side of brain and he was on ventilator with tracheotomy. The plaintiff was attending her husband regularly in the hospital. so the defendants herein taking advantage of the said situation, had lodged a complaint against the Plaintiff on 05.04.2022 before the Commissioner of police Bangalore, making a false allegation that the Aluminum level has increased in the toxicology test and he suspects of administering poison and the plaintiff made an attempt to murder his father in view of the complaint, the Sadashivanagar Police had registered a FIR in Crime No. 46/2022 making plaintiff and Venkatesh Murthy as accused U/s 307, of IPC. The plaintiff's husband was in hospital and she was visiting him and stayed in hospital till 06.04.2022. The defendant by filling a complaint dated: 04.04.2022, managed to keep the plaintiff away from her husband fro 06.04.2022 by threat of arrest by the police. The defendant in order to intimidate the
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plaintiff and obtain possession of the suit schedule property has made every effort to see that she is arrested. Accordingly the Sadashivanagar police took her to police station on 11.04.2022 for recording Statement but the Police had seized her mobile by issuing a Notice dated: 11.04.2022 directing her to come next day morning for giving her statement. The plaintiff and Venkatesh Murthy together filed Criminal Petition No. 3466/2022 before the Hon'ble High Court of Karnataka, Bengaluru. The Hon'ble High Court by its Order dated: 12.04.2022 in the said Criminal Petition was pleased to pass Interim order of stay, staying further proceedings in Crime No. 46/2022 registered by Sadshivanagar Police. But ultimately the said Criminal Petition came to be heard by the Hon'ble High Court and was pleased to dispose of the same by its order dated: 15.06.2022 permitting the Investigation. The copy of the Complaint dated:
04.04.2022 filed by the Defendant and FIR registered in Crime No. 46/2022 are produced herewith as Document No. 12 & 13.
13. Subsequent to the death of Plaintiff's husband L. Shivalingaiah, the defendant had given and additional complaint to the Sadashivngar Police on 22.06.2022 to update the FIR by including Section 302, ( from attempt to murder to murder) and also to include he plaintiff's daughter i.e., J.C. Shilpa @ Shireen Ashad Neelofer Arshad and son-in-law Arafath in the FIR. On the basis of the additional complaint, the police updated Crime No. 46/2022 for alleged offence punishable under Section 302, 307, 328 R/w Section 34 of IPC and implicated the plaintiff's daughters as well her son-in-law. The plaintiff has performed 11 days ceremony of her deceased husband L. Shivalingaiah at the suit schedule property on 28.06.2022. On the same day evening, the Sadashivanagar Police got issued Notice on 28.06.2022 to the plaintiff and to her daughters and son-in-law in connection with the alleged offence punishable under Section 302, 307 etc. The plaintiff
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sensed Defendant had put pressure on the Police to get her arrested. The plaintiff and her daughters had to stay away from their house, i.e., suit-schedule property from 29.06.2022 as there was a complaint registered under Section 302 of IPC against them and the would be arrested. The copies of the additional complaint dated: 22.06.2022 filed by the defendant police report dated: 22.06.2022 against the plaintiff and her daughters police notice dated: 28.06.2022 are produced herewith as Document No. 15, 16 & 17.
14. The Defendant with a sole intention to scare the plaintiff' and her daughters who are residing in the suit schedule property and to drive them away from the suit schedule property had lodged a false complaint with an eye on the suit schedule property. The Defendant is having and ulterior motive to take possession of the schedule property. The plaintiff and her daughters are forced to stay away from the suit schedule property as the threat of arrest was looming over their head. However, the suit schedule property is under the lock and key is with the plaintiff and all the belongings including jeweler, cloths, important documents, household articles, etc are in the suit schedule property. But in the absence of the absence of the plaintiff and her daughters, the defendant has illegally erected metal steel grill with lock on 18.07.2022 and 19.07.2022 to the utility and main door and also put lock to the compound gate of the schedule property with an intention to prevent the plaintiff from entering in to the schedule property. The plaintiff had come to know the said fact of putting metal grill to the utility door as well as to the main door from her neighbors who have taken the photographs and videos. The photographs and videos of erecting grill by the people of defendant are produced herewith as Document No. 18 & 10. The plaintiff being a helpless widow is not in position to face the highhanded acts, dispossession from the suit schedule property at the hands of Defendant. The plaintiff informed the Sadashivanagar Police over
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 telephone on 18.07.2022 and 19.07.2022 about the highhanded acts of the Defendant in putting MS grill to the utility door and main door by the defendant. However, the Sadashivanagar Police are not heeding towards the request of the plaintiff falsely stating that issue involved is civil in nature. Hence the plaintiff being helpless without having any alternative is filling the present suit to protect her possession of suit schedule property by seeking the relief of injunction against the Defendant.
16. The cause of action for the suit arose on 18.06.2022 upon the death of her husband and when the defendant started to threaten the plaintiff through servants to leave the suit schedule property and subsequently on 18.07.2022 when the Defendant erected MS grill outside the main door and CCtv cameras on 23.07.2022 to the suit schedule property."
10. As can be seen from the plaint averments, the plaintiff has specifically stated that she is in possession and enjoyment of the suit schedule property and that since the defendant was threatening to dispossess her from the same, she was constrained to institute the present suit to protect her possession. The plaint averments on their own, cannot be construed or treated to contain any admission or averment to the effect that the plaintiff was not in possession or enjoyment of the suit schedule property as contended by the defendant. So also, the documents produced by the plaintiff also do not establish that the plaintiff was not in possession or enjoyment of the suit schedule property. It is significant to note that merely because the plaintiff has averred in
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 the plaint that the defendant has put up a grill on the suit schedule property and is attempting to interfere with her possession, the said averment cannot be understood or considered as an admission on the part of the plaintiff of being dispossessed from the suit schedule property. Under these circumstances, having regard to the well settled position of law governing consideration of an application under Order VII Rule 11 CPC, in the facts of the instant case, I am of the considered opinion that the Trial Court was fully justified in coming to the conclusion that several disputed questions of fact and law arose for consideration in the suit and that no case was made out by the petitioner-defendant to invoke Order VII Rule 11 CPC and seek rejection of the plaint.
(v) As can be seen from the aforesaid order passed in CRP No.30/2023, arising out of the instant suit in O.S.No.5099/2022, this Court has categorically held that the appellant - plaintiff has not admitted that she was not in possession of the suit schedule property or that she was dispossessed from the suit schedule property prior to institution of the suit. In view of the said finding of this Court that the appellant had not made any such admission in the plaint, the finding recorded by the trial court in the impugned order that she was not entitled to temporary injunction in view of the alleged admission made by her clearly cannot be
- 24 -
MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 countenanced and the same is unsustainable and deserves to be set aside; to put it differently in view of the finding recorded by this Court in CRP No.30/2023, the impugned order which primarily proceeds on the basis that the appellant - plaintiff had admitted that she was not in possession is clearly erroneous warranting interference by this Court.
(vi) The various documents produced by the respondent are not sufficient to either impeach / rebut the aforesaid material produced by the plaintiff as regards her relationship with Shivalingaiah or her possession and enjoyment of the suit schedule property at the time of institution of the suit. In fact, in the police complaint dated 04.04.2022, the respondent has admitted that the appellant was residing along with Shivalingaiah prior to his death and on this ground alone, the finding recorded by the trial court in the impugned order, deserves to be set aside.
(vii) Further, the other documents produced by the respondent in relation to the criminal complaint proceedings, daughters of the appellant etc., are not sufficient to come to the prima-facie conclusion that the appellant was not married to Shivalingaiah or that she was not in possession or enjoyment of the suit schedule property at the time of institution of the suit.
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022
(viii) So also, the categorical admission made by the respondent in his police complaint dated 04.04.2022 that the appellant was residing with Shivalingaiah prima-facie would prevail over the statement made by Shivalingaiah (DW-1) in his cross- examination in O.S.No.7900/2008 dated 30.07.2018, to the effect that after the demise of his first wife, he was residing with his relatives, particularly in the light of his admission in his written statement in the said suit and the finding recorded by the trial court that the appellant was his wife and was residing along with him and consequently, no reliance can be placed upon the said admission in the cross-examination of Shivalingaiah to come to the conclusion that the appellant was not residing with him.
(ix) The other material on record produced by the appellant viz., photographs, police records, loan documents etc., also indicate that the appellant was not only the wife of Shivalingaiah but also was in possession and enjoyment of the suit schedule property as on the date of institution of the suit.
(x) The contention of the respondent that the appellant has admitted that the respondent had put up a MS grill and installed CCTV cameras in the suit schedule property, thereby admitting that she had been dispossessed there from is devoid of merit; it is the
- 26 -
MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 specific contention of the appellant that subsequent to demise of Shivalingaiah on 18.06.2022, the respondent lodged false and frivolous police complaints against the appellant and her daughters and that on 18.07.2022 and 23.07.2022, he erected MS grills and installed CCTV cameras and attempted to illegally and highhandedly interfere with her possession and enjoyment of the suit schedule property; these specific contentions cannot be construed or treated as an admission of dispossession of the appellant and rather / instead, the said contentions indicate that the respondent was attempting to interfere with the appellant's lawful and peaceful possession and enjoyment of the suit schedule property warranting protection to be granted in her favour by an order of temporary injunction.
(xi) The trial court failed to consider and appreciate that the respondent had categorically admitted that there was no MS grill or CCTV cameras in the suit schedule property prior to the demise of Shivalingaiah on 18.06.2022 and that he had put up the same subsequently in order to protect the suit schedule property. This admission on the part of the respondent that he had put up the MS Grill and CCTV cameras just prior to institution of the instant suit by the appellant on 04.08.2022 is sufficient to indicate that the very act
- 27 -
MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 of the respondent in putting up the MS grill and CCTV cameras tantamounts to interference of the possession of the appellant by the respondent over the suit schedule property and consequently, the appellant was entitled to protect her possession and enjoyment of the suit schedule property by an order of temporary injunction.
(xii) The trial court failed to consider and appreciate that the relief of injunction is a possessory remedy and in the light of the material on record, which clearly established that the appellant was in lawful and peaceful possession and enjoyment of the suit schedule property and that the respondent was interfering with the same, the appellant would be put to irreparable injury and hardship if an order of temporary injunction was not passed in her favour against the respondent and failure on the part of the trial court to appreciate this has resulted in erroneous conclusion.
17.1 In view of the aforesaid facts and circumstances, I am of the considered opinion that the appellant had made out a prima- facie case for grant of temporary injunction and the balance of convenience was in her favour and that she would be put to irreparable injury and hardship if temporary was not granted in her favour. Consequently, the impugned order passed by the trial court rejecting I.A.1 filed by the appellant for temporary injunction
- 28 -
MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 restraining the respondent from interfering with her possession and enjoyment over the suit schedule property deserves to be set aside and I.A.1 filed by the appellant - plaintiff deserves to be allowed.
Point No.1 is accordingly answered in favour of the appellant by holding that she is entitled to an order of temporary injunction restraining the respondent from interfering with her possession and enjoyment of the suit schedule property.
Re-Point No.2:-
18. The next question that arises for consideration is as to whether the trial court was justified in rejecting the application I.A.2 filed by the appellant - plaintiff for temporary mandatory injunction directing the respondent to remove the MS grill erected over the utility and main door of the suit schedule property as well as the CCTV cameras installed by him. In this context, it is relevant to state that it is the specific contention of the appellant that pursuant to filing false and frivolous police complaints against her and her daughters and by using police influence and pressure, the respondent illegally and highhandedly put up MS grill and installed CCTV cameras in the suit schedule property and the same are liable to be removed. However, in the statement of objections to
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 I.A.2, the respondent - defendant has admitted that he has installed CCTV cameras and erected MS Grills on the main door and utility for the purpose of safety of the suit schedule property.
18.1 While dealing with Point No.1 supra, I have already come to the conclusion that the plaintiff was in lawful and peaceful possession and enjoyment of the suit schedule property on the date of the institution of the suit and that the respondent was not entitled to interfere with her possession and enjoyment of the suit schedule property. It follows therefrom that the respondent was also not entitled to put up the MS grill on the suit schedule property or install CCTV cameras, the said acts clearly tantamounting to interference by the respondent with the appellant's possession and enjoyment fo the suit schedule property. It is well settled that interim temporary mandatory injunction is to be granted only under compelling circumstances and in order to restore status-quo ante and to prevent irreparable or serious injury being caused to a party. It is also well settled that a higher standard is required than a prima facie case for grant of a prohibitory injunction.
18.2 In Dorab Cawasji Warden's case supra, the Apex Court held as under:-
- 30 -MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022
" 10. The trial court gave an interim mandatory injunction directing respondent 4 not to continue in possession. There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions.
11. In Shepherd Homes Ltd. v. Sandham [(1970) 3 All ER 402: (1970) 3 WLR 348] Megarry J. observed:
"(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction;
in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction."
12. In Evans Marshall & Co. Ltd. v. Bertola SA [(1973) 1 All ER 992: (1973) 1 WLR 349] the Court of Appeal held that:
"Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant;"
The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. v. Cannon Film Sales Ltd. [(1986) 3 All ER 772] , Hoffmann, J. observed in that case: (All ER pp. 780-81)
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022
"But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle."
Again at page 781 the learned Judge observed:
"The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term 'mandatory' to describe the injunction, the same question of substance will determine whether the case is 'normal' and therefore within the guideline or 'exceptional' and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a 'high degree of assurance' about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction."
and concluded that: (All ER p.782) "These considerations lead me to conclude that the Court of Appeal in Locabail International Finance Ltd. v. Agroexport [(1986) 1 All ER 901, 906: (1986) 1 WLR
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 657, 664] was not intending to 'fetter the court's discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy', to quote Lord Diplock in the Cyanamid case [American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504, 510:
1975 AC 396, 407] . Just as the Cyanamid [American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504, 510:
1975 AC 396, 407] guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne v. Global Natural Resources plc [(1984) 1 All ER 225] ), so the guideline approved for mandatory injunctions in Locabail [(1986) 1 All ER 901, 906: (1986) 1 WLR 657, 664] recognises that there may be cases in which less is sufficient."
On the test to be applied in granting mandatory injunctions on interlocutory applications in Halsbury's Laws of England, 4th edn., Vol. 24, para 948 it is stated:
"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."
12 A. The law in United States is the same and it may be found in 42 American Jurisprudence 2d page 745 et seq.
13. As far the cases decided in India we may note the following cases.
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 In one of the earliest cases in Rasul Karim v. Pirubhai Amirbhai [ILR (1914) 38 Bom 381: 16 Bom LR 288: 24 IC 625] , Beaman, J. was of the view that the courts in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd. [(1914) 16 Bom LR 566: 28 IC 121] two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. P. Subramania Chetty [ILR (1918) 41 Mad 208: 1917 MWN 501: 41 IC 384] , a Division Bench of Madras High Court held that courts in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman J.'s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. [(1914) 16 Bom LR 566: 28 IC 121] In Israil v. Shamser Rahman [ILR (1914) 41 Cal 436: 18 CWN 176] , it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 that the court should consider as to where the balance of convenience lies and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. [AIR 1956 Cal 428] , a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.
14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
- 35 -MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion." 18.3 The aforesaid principles have been reiterated by the Apex Court in the following judgments:-
(i) Deoraj vs. State of Maharastra - (2004) 4 SCC 697;
(ii) Metro Marins vs. Bonus Watch Co., P.Ltd., - (2004) 7 SCC 478;
(iii) Kishore Kumar Khaitan vs. Praveen Kumar Singh - (2006) 3 SCC 312;
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022
(iv) Mohammed Mehtab Khan vs. Khushnuma Ibrahim Khan - (2013) 9 SCC 221;
(v) Samir Narain Bhojwani vs. Aurora Properties - (2018) 17 SCC 203;
(vi) Hammad Ahamed vs. Abdul Majeed - (2019) 14 SCC 1;
(vii) Teksingh vs. Shashi Verma - (2019) 16 SCC 678; 18.4 In the case of Shanmukhappa's case supra, this Court held as under:-
" The real or substantial principle of law in cases of this nature appears to me to consist in the primary duty resting on all courts of law to make such orders as are necessary for the maintenance of justice and prevent patent injustice. The very idea underlying the grant of interim relief byway of injunction is to see that the ultimate relief which the plaintiff is likely to get at the conclusion of the suit is not rendered nugatory or ineffectual by the action by the defendant during the pendency of the suit. Indeed an interim injunction is often described as an injunction granted in aid of the perpetual injunction likely to be granted at the conclusion of the suit. The argument that the grant of mandatory injunction amounts to virtually pre-judging the suit itself is equally available in cases where an interim injunction in the nature of prohibitive injunction is asked for, because, an interim prohibitive injunction is asked for in a suit which claims perpetual prohibitory injunction. Every interim injunction is granted in aid of the final injunction asked for in the suit. That is the reason why before an ad interim
- 37 -MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022
injunction is granted, Courts are required to come to a tentative conclusion regarding the basic fact, that is to say, whether upon the material placed by him before Court, the court finds it possible to take the view that he may reasonably be expected to succeed in the suit."
18.5 In the case of Bheemasenacharya Srinivasa Charya Gudi vs. Gadag Veeranarayana Dev - ILR 2002 KAR 2377, the Division Bench of this Court held as under:-
" 27. A Division Bench of the High Court of Calcutta, in Nandan Pictures, supra, in regard to grant of mandatory injunction said:
"If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the 'status quo' and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted......, the Court grants a mandatory injunction even on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit...."
As a general legal proposition, it is also laid down therein:
"Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case."
There cannot be any doubt at all about the above legal propositions. But, the point for consideration is whether the vested legal right of the plaintiffs to
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 discharge the functions of the offices of Parupatyagar and Paricharikas during their respective turn had become extinct and divested in accordance with, law as on the date of filing of their suit. This aspect would be considered a little later herein below.
30. Another related submission that was made by Mr. Vijayashankar in support of the impugned order was that the primary object of grant of temporary injunction is to ensure the maintenance of status quo of the matter in dispute as was existing on the date of the suit, and in the instant case, the plaintiff's services as Parupatyagar and Paricharakas having been terminated by termination notice dated 13.10.1995 of the D-1's Committee long before filing of the suit, they are disentitled to any ad-interim injunction which disturbs the status quo as it results in their reinstatement into the said positions of Parupatyagar and Paricharikas. Reliance was placed by him on the aforestated decisions and also on another decision of Madras High Court in R. Kannaiah v. Bangalore Wollen Cotton and Silk Mills Ltd. Co., Bangalore [AIR 1969 Madras 341.] . This Court, in the case of Ganapathi Narayan, supra, reiterated the basic legal principle that:
"As regards the scope of jurisdiction of the Court to grant the temporary injunction, it has to be kept in view regarding temporary injunction order or equitable relief that where the Court has jurisdiction to grant temporary injunction order, it is in order to maintain the status quo between the parties and if the order will aid the final relief that may be granted in the suit Court may exercise that jurisdiction."
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 18.6 In Appukuttan's case supra, the Kerala High Court held as under:-
" 6. The argument advanced by the learned counsel appearing for the petitioners is that merely for the reason that the party who seeks temporary injunction makes out a prima facie case, the court will not be justified in granting the injunction. His submission is that after establishing prima facie case the person who seeks temporary injunction will have to establish that the balance of convenience is in his favour and that in case injunction is refused, irreparable injury will be caused to him. The learned counsel then relies on the decision of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden (AIR 1990 SC 867). After referring to various English decisions the court observed as follows:
"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
- 40 -MFA No. 8709 of 2022 C/W MFA No. 8710 of 2022
(1) The plaintiff has a strong case for trial. That is, it shall be a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief."
The other decisions cited by the learned counsel appearing for the petitioners are Dalpat Kumar v. Prahlad Singh (AIR 1993 SC 276) and in Geo-Tech Constructions Co. Pvt. Ltd. v. Hindustan Steel Works Construction Ltd. (1999(1) KLT 536). He also cited the decision in James v. Jaimon James (1998 (1) KLT 233). The attempt made by the learned counsel for the petitioners on citing the above decisions is to show that the purpose of granting injunction is to maintain the status quo as on the date of the suit and that in granting injunction it is necessary that the question whether irreparable injury will be caused to the person who seeks injunction and whether balance of convenience is also in favour of him has to be considered by the court. The question whether balance of convenience is in favour of the person who seeks injunction and whether in case injunction is refused he will suffer irreparable injury are matters which have to be considered in the light of the facts and circumstances of each case.
7. This is a case in which as pointed out by the courts below the suit was filed by the petitioners after putting up a compound wall across the pathway two days prior to the
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 institution of the suit. As has come out from the report of the Commissioner it could be seen that there was a way which was in existence for 12 years. It cannot be said that granting of mandatory injunction was not permissible because on the date of the suit there was a compound wall across the pathway and that giving direction to remove compound wall which was in existence prior to the institution of the suit will be against maintaining status quo as on the date of the suit. Generally the purpose for which interim injunction is granted is for maintaining status quo as on the date of the suit. In a case of this nature it will be proper to give direction to remove the compound wall which was put up two days prior to the institution of the suit. Interim injunction, prohibitory or mandatory can be granted even for restoring status quo anterior to the date of the suit if it is found that it is absolutely necessary. Since O.S. 192 of 2002 was filed by the petitioners for injunction to restrain the respondent from demolishing the compound wall and what is seen from the materials available on record is that the compound wall was put up two days prior to the institution of the suit across a way which according to the Commissioner was in existence for more than 12 years, granting of interim mandatory injunction is justifiable. In respect of the contention raised by the petitioners that the balance of convenience is in favour of them it has to be observed that when the way which was being used for about 12 years is closed and the respondent is prevented from using that way to go to the property where his house is situated balance of convenience is in favour of him. In that respect of the matter in case interim mandatory
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 injunction is not granted, irreparable injury will be caused to the respondent. I do not find any reason for interfering with the judgment of the appellate court in the Civil Miscellaneous Appeals and also the order made by the learned Munsiff. These Revisions are hence dismissed." 18.7 The facts of the instant case clearly indicate that prima-facie the appellant has produced valid and cogent material to establish that she was in actual and physical possession and enjoyment of the suit schedule property at the time of institution of the suit and that the respondent was neither entitled to interfere with her possession or enjoyment, much less, erect MS Grill or install CCTV cameras in the suit schedule property. The material on record also establishes that till immediately prior to institution of the suit, CCTV cameras and MS Grills had not been erected or installed on the suit schedule property and that the same were installed and erected just prior to institution of the suit. The undisputed installation of CCTV cameras and erection of MS Grill by the respondent not only tantamounts to interference with the appellant's possession and enjoyment of the suit schedule property but also has the effect of preventing her from possessing and enjoying the suit schedule property and in order to enable her to do
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 so, I am of the prima - facie opinion that the said MS Grills and CCTV cameras are to be directed to be removed for the purpose of restoring status-quo ante in respect of the suit schedule property and consequently, I am of the view that the appellant is entitled to temporary mandatory injunction directing removal of the MS Grills and CCTV cameras for the purpose of enabling her to possess and enjoy and remain in possession and enjoyment of the suit schedule property.
18.8 The material on record lead to the following prima- facie conclusions, which are sufficient to establish that the appellant was entitled to interim temporary mandatory injunction directing removal of the MS Grills and CCTV cameras erected and installed by the respondent on the suit schedule property:-
(a) Appellant - plaintiff had established that she was in lawful and peaceful possession and enjoyment of the suit schedule property and was residing in the same along with Shivalingaiah;
(b) Appellant - plaintiff had established that she was the legally wedded wife of Shivalingaiah;
(c) The respondent was not residing in the suit schedule property nor in possession or enjoyment of the same during the life time of Shivalingaiah or even thereafter.
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022
(d) The respondent had illegally and highhandedly erected and installed MS Grills and CCTV cameras in the suit schedule property and was not only interfering with the appellant's lawful and peaceful possession and enjoyment of the suit schedule property but was also preventing her to possess and enjoy the property.
(e) The MS grills and CCTV cameras having been erected and installed just prior to institution of the suit, appellant was entitled to the equitable and discretionary relief of interim temporary mandatory injunction directing removal of the same for the purpose of restore and preserve status-quo ante that existed on the suit schedule property prior to installation and erection of the MS grills and CCTV cameras by the respondent.
(f) The facts and circumstances obtaining in the instant case clearly indicate that there existed exceptional circumstances warranting grant of interim mandatory injunction in order to prevent injustice and irreparable harm being caused to the appellant, particularly having regard to the nature of dispute between the parties and the reliefs sought for by the appellant and consequently, the appellant was entitled to interim mandatory injunction to compel undoing of the illegal and highhanded acts of
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MFA No. 8709 of 2022C/W MFA No. 8710 of 2022 other respondents and to restore and preserve status - quo of the suit schedule property.
Point No.2 is accordingly answered in favour of the appellant.
19. In the result, I pass the following:-
ORDER
(i) Both the appeals in MFA No.8709/2022 and MFA No.8710/2022 are hereby allowed.
(ii) The impugned common order passed on I.A.Nos.1 and 2 in O.S.No.5099/2022 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside and consequently both the applications I.A.Nos. 1 and 2 filed by the appellant-plaintiff are hereby allowed.
(iii) The respondent-defendant and anyone claiming through or under him are hereby restrained from interfering with the appellant's possession and enjoyment of the suit schedule property till disposal of the suit.
(iv) The respondent-defendant is also directed by way of a temporary interim mandatory injunction to remove all the MS grills and CCTV cameras erected/put up/installed in the suit schedule
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property within a period of six weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Srl.