Karnataka High Court
B Jayalakshmi vs Sri. Dhanashakaran on 29 August, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
1
W.P.No.689/2018 C/W
W.P.No.32177/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.689/2018 (GM-CPC)
C/W
WRIT PETITION NO.32177/2016 (BDA)
IN W.P.NO.689/2018:
BETWEEN:
B.JAYALAKSHMI
W/O SATHISH
AGED ABOUT 23 YEARS
NO.970, 7TH BLOCK
4TH MAIN ROAD
KALIDASANAGAR
B.S.K. III STAGE
HOSAKEREHALLI
BANGALORE-85.
... PETITIONER
(BY SRI: KAMALESHWARA POOJARY, ADV.,)
AND:
1. SRI. DHANASHAKARAN
S/O P.S. PUSHPANATHAN
AGED ABOUT 60 YEARS
NO.1009, B.S.K. III STAGE
2ND PHASE, HOSAKEREHALLI
BANGALORE-85
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W.P.No.689/2018 C/W
W.P.No.32177/2016
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
CHOUDAIAH ROAD
BANGALORE-01.
... RESPONDENTS
(BY SRI:G.SANJAY, ADV., FOR
SRI: D.LEELAKRISHNA, ADV., FOR R1,
SRI:GOWTHAMDEV C.ULLAL, ADV., FOR R2 (ABSENT))
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE HON'BLE LXIV ADDITIONAL
CITY CIVIL AND SESSION JUDGE (CCH-65) AT
BENGALURU CITY ON IA NO.II UNDER ORDER 39 RULE
2a OF C.P.C DATED 4.12.2017 IN O.S.8194/16 AS PER
ANNEXURE-A; DIRECT THE HON'BLE LXIV ADDITIONAL
CITY CIVIL AND SESSION JUDGE (CCH-65) AT
BENGALURU CITY TO PASS ORDER ON IA NO.II UNDER
ORDER 39 RULE 2a OF C.P.C. BASED ON THE ENQUIRY
HELD UNDER ORDER 39 RULE 2A OF C.P.C IN
O.S.8194/16 WITHIN ONE MONTH.
IN W.P.NO.32177/2016:
BETWEEN:
B.JAYALAKSHMI
W/O SATHISH
AGED ABOUT 27 YEARS
NO 970, 7TH BLOCK
4TH MAIN ROAD
KALIDASANAGAR
B S K III STAGE
HOSAKEREHALLI
BANGALORE - 85
... PETITIONER
(BY SRI: KAMALESHWARA POOJARY, ADV.,)
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W.P.No.689/2018 C/W
W.P.No.32177/2016
AND:
1. THE SECRETARY
RURAL DEVELOPMENT DEPARTMENT
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BANGALORE - 04
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
CHOWDAIAH ROAD
BANGALORE -01
3. SRI DHANASHAKARAN
S/O P S PUSHPANATHAN
AGED ABOUT 60 YEARS
NO 1009, B S K III STAGE
2ND PHASE, HOSAKEREHALLI
BANGALORE - 85
... RESPONDENTS
(BY SRI: G M CHANDRASHEKAR, ADV., FOR R2,
SRI:G.SANJAY, ADV., FOR
SRI:D.LEELAKRISHNA, ADV., FOR R3,
R1 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO DIRECT THE RESPONDENT NO.2 TO CANCEL THE
ALLOTMENT AND POSSESSION CERTIFICATE ISSUED IN
FAVOUR OF THE RESPONDENT NO.3 IN RESPECT OF
MARGINAL LAND MEASURING ABOUT EAST TO WEST
4.90 METERS AND NORTH TO SOUTH 9.15 METERS
TOTALLY MEASURING ABOUT 44.83 SQ.METERS,
SITUATED BETWEEN SITE NO.970 AND SITE NO.1009,
KALIDASANAGAR, B.S.K. III STAGE, HOSAKEREHALLI,
BANGALORE-85, AND CONSEQUENTLY FURTHER
DIRECT THE RESPONDENT NO.2 TO RE ALLOT AND GIVE
POSSESSION OF THE SAID MARGINAL LAND EQUALLY
TO THE PETITIONER AND RESPONDENT NO.3 AS PER
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W.P.No.689/2018 C/W
W.P.No.32177/2016
THE RULE OF THE BDA AND AS SUCH THE
RESPONDENT NO.3 IS ENTITLED TO 22.41 SQ.METER
AND THE REMAINING LAND THE PETITIONER IS
ENTITLED WHICH INCLUDES THE ENCROACHMENT
MADE BY THE RESPONDENT NO.3 OF THE PETITIONER
SITE MEASURING ABOUT EAST TO WEST 5 FEET AND
NORTH TO SOUTH 25 FEET.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Having heard learned counsel for the parties and having perused the material placed on record, this Court is not persuaded to consider interference in the impugned order dated 04.12.2017, as passed by the Court of LXIV Additional City Civil Judge, Bengaluru City, on IA.No.II filed under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, ('CPC') in O.S.No.8194/2016.
Though, at the first blush, the approach of the Trial Court in postponing the decision on the application moved under Order XXXIX Rule 2A of CPC until disposal of the main suit appear to be questionable but, on the facts and in the peculiar circumstances of the present case, this Court finds 5 W.P.No.689/2018 C/W W.P.No.32177/2016 that the Trial Court was not unjustified in adopting such a course.
It is noticed from the record of the connected Writ Petition No.32177/2016 that the said petition was filed by the petitioner on 03.06.2016 seeking the following relief:
"To issue writ in the nature of mandamus by directing the 2nd respondent to cancel the allotment and possession certificate issued in favour of the 3rd respondent in respect of marginal land measuring about east to west 4.90 meters and north to south 9.15 meters totally measuring about 44.83 Sq. meters, situated between Site No.970 and Site No.1009, Kalidasanagar, B.S.K. III Stage, Hosakerehalli, Bangalore - 85, and consequently further direct the 2nd respondent to re allot and give possession of the said marginal land equally to the petitioner and 3rd respondent as per the rule of the BDA and as such the 3rd respondent is entitled to 22.41 sq. meter and the remaining land the petitioner is entitled which includes the encroachment made by the 3rd Respondent of the petitioner site measuring about east to west 5 feet and north to south 25 feet."
During the pendency of the said writ petition, the petitioner filed the suit aforesaid in O.S.No.8194/2016, seeking the following reliefs:
"Wherefore, the plaintiff most respectfully prays that this Hon'ble Court be pleased to:6
W.P.No.689/2018 C/W W.P.No.32177/2016
(a) Pass judgment and decree in the nature of permanent injunction and thereby restrain the defendant No.1 or his agents, servants, henchmen and whoever may be claiming through the 1st defendant from interfering with the possession and enjoyment of the plaintiff's suit schedule "C" property.
(b) Pass judgment and decree in the nature of permanent injunction and thereby restrain the defendant No.1 or his agents, servants, henchmen and whoever may be claiming through the 1st defendant from interfering with the possession and enjoyment of the plaintiff's suit schedule "D" property and decree the suit with cost.
(c) Pass any other order or direction as this Hon'ble Court deems to be fit and proper in the ends of justice and equity."
The schedule 'C' property in the suit is said to be the same property in relation to which, the said writ petition (W.P.No.32177/2016) was filed by the petitioner prior to the filing of the suit. In the suit, on 06.01.2017, the Trial Court granted temporary injunction to the following effect:
"I.A.No.I filed under Order 39 Rule 1 and 2 R/w Section 151 of C.P.C., is hereby allowed in part.
Temporary injunction order granted on 05.12.2016 is hereby confirmed.
Issue temporary injunction order against 7 W.P.No.689/2018 C/W W.P.No.32177/2016 defendant No.1 restraining him from constructing premises by encroaching the area of plaint 'D' schedule property, till final disposal of the suit.
I.A.No.I for grant of temporary injunction order against defendant No.1 as sought for in respect of plaint 'C' schedule property is hereby rejected.
No order as to costs.
Office to issue temporary injunction order against defendant No.1 as ordered above, if P.F., is paid."
Following the aforesaid order dated 06.01.2017, the petitioner filed an application in W.P.No.32177/2016, seeking temporary injunction so as to restrain the respondent No.3 from putting up construction in the marginal land said to be measuring East to West 4.90 meters and North to South 9.15 meters, which is essentially related with the suit property aforesaid, but the petitioner is said to have moved an application for correction of the pleadings in the suit.
Be that as it may, on 11.01.2017, a co-ordinate Bench of this Court declined the prayer for temporary injunction in the said writ petition, inter alia, with a prima facie finding against the claim of the petitioner over the alleged marginal land. The 8 W.P.No.689/2018 C/W W.P.No.32177/2016 Court, however, took note of pendency of the said suit and the temporary injunction granted therein and observed as under:
"It is necessary to notice here that petitioner has already filed a suit in O.S.No.8194/2016 wherein she had sought for temporary injunction in respect of not only the marginal land, but also the piece of land which belonged to her and which according to her, she had left as a set back and was sought to be encroached by respondent No.3. The Trial Court has granted temporary injunction in respect of the said portion protecting the interest of the petitioner. This order will not in any manner affect the protection so accorded to the petitioner in respect of her site.
Hence, I.A.1/2016 filed seeking temporary injunction in respect of the marginal land is rejected."
It is also pointed out that the petitioner has made a prayer for amendment of the plaint so as to question the allotment said have been made in favour of the respondents.
Now, learned counsel for the petitioner has attempted to argue that the temporary injunction order in the suit essentially relates to Schedule 'D' property; and disobedience of temporary injunction needs to be dealt with by the Trial Court. 9
W.P.No.689/2018 C/W W.P.No.32177/2016 This Court is of the view that the litigation is being perused by the plaintiff by way of parallel, if not overlapping, proceedings and in view of several issues involved as to the extent and measurement of the land adjacent to or adjoining the two residential house properties bearing Site Nos.970 and 1009 respectively, the Trial Court cannot be faulted in postponing the decision on the application under Order XXXIX Rule 2A of C.P.C., until disposal of the main suit because the specifications and location of the property in question will have to be determined; and without such determination, the Trial Court may not be in a position to identify the property in question and to come to a definite conclusion as to whether there is disobedience of the temporary injunction or not. In this view of the matter, the order passed by the Trial Court does not appear calling for interference under Article 227 of the Constitution of India. W.P.No.689/2018 deserves to be disposed of accordingly.
Further, for what has been observed hereinabove, this Court is also clearly of the view that when the petitioner has taken recourse to the regular remedy in the civil suit and the 10 W.P.No.689/2018 C/W W.P.No.32177/2016 same is pending; and when schedule 'C' property is also the subject matter of the suit, there is no reason to continue with W.P.No.32177/2016. Rather, it appears proper to observe that all the aspects of the dispute between the parties in relation to the suit schedule properties be left open to be dealt with in the pending civil suit.
Therefore, while extending liberty to the petitioner to take recourse to appropriate remedies in accordance with law, the proceedings in Writ Petition No.32177/2016 also deserve to be closed.
With the observations foregoing, both the petitions stand disposed of.
Sd/-
CHIEF JUSTICE *bgn/-