Karnataka High Court
Smt.P.Parvati W/O U Mohan Rao vs Shankarappa S/O Late Basappa & Ors on 11 January, 2017
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
W.P.No.205077/2016 (GM-CPC)
BETWEEN:
SMT.P.PARVATI
W/O U. MOHAN RAO
AGED ABOUT 61 YEARS,
OCC: AGRICULTURE,
R/O: KADLOOR VILLAGE,
VIA: DEVASUGUR,
TQ & DIST:RAICHUR
... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
1. SHANKARAPPA
S/O LATE BASAPPA
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
R/O: H.NO.1, WARD NO.1,
KADLOOR VILLAGE,
VIA:DEVASUGUR,
TQ & DIST:RAICHUR- 584 101
2. KASMI SAB
S/O RAJA SAB SOFI
AGED ABOUT 31 YEARS,
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OCC: AGRICULTURE,
R/O:H.NO.13, WARD NO.1,
KADLOOR VILLAGE, VIA: DEVASUGUR,
TQ & DIST:RAICHUR- 584 101
3. VENKAPPA S/O LATE LAXMANA UPPAR
AGED ABOUT 31 YEARS, OCC: AGRICULTURE,
R/O:H.NO.18, WARD NO.1, KADLOOR VILLAGE,
VIA:DEVASUGUR, TQ & DIST:RAICHUR- 584 101
4. BASAPPA THOTIGIR SAUKAR
S/O LATE AMARANNA
ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/O:H.NO.24, WARD NO.1,
KADLOOR VILLAGE, VIA: DEVASUGUR,
TQ & DIST:RAICHUR- 584 101
5. UMESH S/O BASAVARAJAPPA SAUKAR
AGED ABOUT 35 YEARS, OCC: AGRICULTURE,
R/O:H.NO.25, WARD NO.1, KADLOOR VILLAGE,
VIA:DEVASUGUR, TQ & DIST:RAICHUR- 584 101
6. SHEKARAPPA
S/O LATE BASAVARAJAPPA SAUKAR
AGED ABOUT 35 YEARS,
OCC:AGRICULTURE, R/O:H.NO.26,
WARD NO.1, KADLOOR VILLAGE, VIA:DEVASUGUR,
TQ & DIST:RAICHUR- 584 101
7. MAHADEVAPPA
S/O LATE BASAVARAJAPPA SAUKAR
AGED ABOUT 35 YEARS,
OCC:AGRICULTURE, R/O:H.NO.26,
WARD NO.1, KADLOOR VILLAGE,
VIA:DEVASUGUR, TQ & DIST:RAICHUR- 584 101
... RESPONDENTS
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THIS WRIT PETITION FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
AN APPROPRIATE WRIT MORE SO IN THE NATURE OF
CERTIORARI AND QUASH THE ORDER DATED 18.08.2016
PASSED ON M.A.NO.10/2015 BY THE PRL. SENIOR CIVIL
JUDGE & CJM, RAICHUR, CERTIFIED COPY OF WHICH IS
AT ANNEXURE-F AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
An order of temporary injunction sought by the plaintiff in O.S.No.49/2014 against the defendants having not been granted on account of rejection of I.A.No.I vide the order as at Annexure-D, M.A.No.10/2015 was filed in the Court of Senior Civil Judge at Raichur. The appeal having been dismissed by a judgment vide Annexure-F, this petition was filed to set aside the order and the judgment as at Annexures-D and F respectively.
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2. Learned counsel for the petitioner by referring to the decision in the case of Smt.Fakiravva vs. Shivabasayya Siddalingayya Odusumath and Another, 2015 (3) KCCR 2738, contended that the impugned order and the judgment are liable for interference, as the case of the petitioner purforth in the suit and the appeal has not received due consideration.
3. Perused the record and considered the submission.
4. Suit was instituted by filing of the plaint vide Annexure-A. I.A.No.I vide Annexure-B was filed. Defendant Nos.1, 2, 4 and 5 filed written statement vide Annexure-C. The same was adopted as statement of objection to I.A.No.I. Learned Trial Judge by raising points for consideration and finding that the plaintiff has not made out prima facie case, 5 balance of convenience and irreparable injury, passed the order as at Annexure-D, whereby, I.A.No.I was rejected.
5. In M.A.No.10/2015 filed against the said order, plaintiff having contended that stagnation of drainage water has become an unbearable nuisance, learned Appellate Judge having found that the plaintiff has not placed any material to show that during his absence in the village the defendants formed drainage water channel afresh to let the sewage water into the plaintiff's land and after perusal of the photographs produced, being of the opinion that the evidence is required to be adduced by the parties, dismissed the appeal by reminding himself that the Appellate Court should be slow in interfering with a considered order passed by the Trial Court, unless arbitrariness or perverse approach is established.
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6. There is concurrent finding by the Courts below with regard to the plaintiff failure to establish prima facie case. In the absence of prima facie case, an order of temporary injunction cannot be granted. Learned counsel for the petitioner was unable to point out any material which was not noticed by the Courts below while passing the order and the judgment as at Annexures-D and F respectively. Both Courts below have noticed the relevant materials and passed the order and the judgment vide Annexures-D and F respectively. Hence, prima facie findings recorded cannot be termed as either arbitrary or perverse.
7. Insofar as decision on which learned counsel placed reliance is concerned, therein a suit was instituted to pass decree of declaration and permanent injunction based on easementary right. In the said case, after trial and judgment by the Trial Court, the case having been brought in appeal before 7 this Court, with reference to the evidence placed on record by the parties it was held that no right accrues to a person to discharge drainage or dirty water into land/property of others.
8. In the present case, as of now, the petitioner is yet to adduce evidence and establish the case. Hence, the aforesaid decision has no application, at this stage of the matter.
In the result, petition is dismissed. However, Trial Court shall decide the suit uninfluenced by the order passed vide Annexure-D and its affirmation as per the judgment vide Annexure-F. As the pleadings are complete and suit is at the stage of trial, plaintiff being a senior citizen, there shall be expeditious trial and decision.
Plaintiff may adduce and complete her side of evidence within a period of two months from the next 8 hearing date of the suit. The defendants may adduce and complete their evidence within a period of three months from the date the plaintiff close her case. Suit be decided within a period of one month from the date the trial is complete by refusing unnecessary adjournment, if any, sought by the parties.
Ordered accordingly.
Sd/-
JUDGE Srt CT: SI