Karnataka High Court
Sri. Shivaji S/O Balaram Haibatti vs Sri. Sadashiv Vasudev Dhopeshwardkar on 2 March, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF MARCH 2017
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
Writ Petition No.64900 of 2011 (GM-CPC)
Between:
Sri. Shivaji son of Balaram Haibatti,
Age: 64 years, Occupation: Business,
Resident of Maratha Colony, Tilakwadi,
Belgaum.
... Petitioner
(By Sri. Harish S. Maigur, Advocate.)
And
1. Sri. Sadashiv Vasudev Dhopeshwardkar
Age: Major, Occupation: Pensioner,
Resident of 207/C, Kanchanpuri Housing,
Society, Shripati Sutrapatha,
Shivtirth Nagar, Paud Road, Pune,
Maharashtra State.
2. Sri. Dr. Aravind Vasudev Dhopeshwardkar,
Age: Major, Occupation: Medical Pensioner,
Resident of 207/C, Kanchanpuri Housing
Society, Shripati Sutrapatha,
Shivtirth Nagar, Paud Road,
Pune, Maharashtra.
... Respondents
(By Sri. Mrutyunjay Tata Bangi, Advocate for Respondent 2.
Respondent 1 service held sufficient vide order dated 08. 03.2016)
:2:
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to set aside the order dated:
04/01/2011 passed by 1st Additional Civil Judge and JMFC,
Belgaum in M.A. No.22/2007 marked at Annexure-A.
This Writ Petition coming on for preliminary hearing in 'B'
group, this day, the court made the following:
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is aggrieved by the rejection of a miscellaneous application filed by him under Order XXXIX Rule 2 (A) read with Section 151 of Code of Civil Procedure, 1908.
3. The application averments were to the effect that one Harischandra Gayakwad had filed a civil suit in O.S. No.251 of 1998 seeking the relief of permanent injunction. In the said suit, Gayakwad had impleaded 13 members of the family of the defendants therein and the present respondent No.1 was defendant No.13 and respondent No.2 was defendant No.11 in the said suit. The present respondents had remained ex-parte in the said suit. During the pendency of the suit, the trial Court had granted temporary injunction which was continued from time to time restraining the defendants from alienating the suit property or :3: interfering with the plaintiffs. The petitioner herein is said to have approached defendants No.4 to 8 and sought for purchase of their share in the property. In view of the injunction order, the petitioner had agreed to purchase their share but it was not purchased during the pendency of the suit and it was purchased after the dismissal of the suit on 29.03.2006. It is also stated that defendants No.4 to 8 had authorized the petitioner to act as their power of attorney and in that capacity, he had contested the suit on their behalf and he had purchased the share of Anant and Vinayak through their legal representatives and therefore he had claimed he was entitled for ½ share in joint family properties. It is stated that defendant No.13 had created a sale deed in favour of defendant No.12 on the footing that defendant No.11 was the power of attorney holder and accordingly the sale deed had been registered. Even during the pendency of the suit and operation of the injunction order, namely, as on 03.08.2002 and the name of respondent No.2 was entered in the City Survey Records on the strength of the said sale deed. The respondents had raised objections in this regard by bringing it to the notice of the :4: authorities about the prohibitory order of injunction granted in the suit. It is in that background, that the petitioner's name was entered in the revenue records and he had succeeded to the property falling to the share of the legal heirs of Vinayak and Anant and therefore had sought to take action against the respondents for having acted in violation of the injunction order and sought punishment for breach of injunction. It is in that background that the petition was filed.
4. However, the Court while considering the application, after a detailed enquiry, has opined that the petitioner was merely a power of attorney holder of the defendants and he could, at best, represent the defendants and not seek any relief in his individual capacity. Further the injunction order granted was a right in personam conferred on the plaintiff and if there was an breach of injunction order, it is the plaintiff who would be entitled to question the breach of injunction order. Therefore, the petitioner acting as a power of attorney holder without even impleading the principals along with him, could not present a petition seeking such punishment for disobedience of an injunction order. It is in :5: this vein that the Court below has negatived the application and dismissed the same. There is no warrant for interference, having regard to the circumstances of the case, as the petitioner has not suffered any prejudice and that would also be yet another ground to reject the petition.
Hence the petition is dismissed.
Sd/-
JUDGE kmv