Karnataka High Court
Verayya vs Shivakanth & Aors on 10 October, 2017
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
W.P.NO.207029/2017 (GM-CPC)
Between:
Verayya
S/o Revansiddayya Mathapathi
Aged about 73 years
Occ: Retired Assistant Director
R/o Godutai Nagar
Kalaburagi - 585 102
... Petitioner
(By Sri Ameet Kumar Deshpande, Advocate)
And:
1. Shivakanth
S/o Chandrakanth Mahajan
Age: 43 years, Occ: Business
R/o Anandnagar
Opp: House of Shivanand Mankar
S.B. College Road
Kalaburagi - 585 103
2. Komal
W/o Shivakanth Mahajan
Aged about 37 years
Occ: Household
R/o Anand Nagar
S.B. College Road
Kalaburagi - 585 103
2
3. The Corporation of City of Gulbarga
Through its Commissioner
Kalaburagi - 585 102
4. The Zonal Commissioner
The City Corporation of Gulbarga
Kalaburagi - 585 102
... Respondents
(Sri B.V. Jalde, Advocate for R1 & R2;
Sri P.S. Malipatil, Advocate for R3 & R4)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue an appropriate writ, more so
in the nature of certiorari and quash the order dated 21.08.2017
passed in M.A. No.9/2015 by the Court of the III Addl. Senior Civil
Judge, Kalaburagi, the certified copy of which is at Annexure-F1.
This petition coming on for preliminary hearing in 'B' group
this day, the Court made the following:-
ORDER
The petitioner has challenged the order dated 21.08.2017 passed in M.A. No.9/2015 on the file of the III Additional Senior Civil Judge, Kalaburagi.
2. The petitioner herein filed O.S. No.465/2014 against the respondents herein for a decree of perpetual injunction restraining the respondents from interfering in the peaceful possession and enjoyment of the plaintiff/petitioner 3 over the suit property. The respondents/defendants have filed written statement. In the said proceedings, the petitioner filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 for grant of interim order of temporary injunction. The respondent contested the same. On appreciation of the material on record, the trial Court granted an order of temporary injunction in favour of the petitioner till the final disposal of the suit. Aggrieved by the same, respondents have preferred Misc. Appeal No.9/2015. The lower appellate Court allowed the appeal and thereby consequently rejected the application for temporary injunction filed by the petitioner. Aggrieved by the same, the petitioner is before this Court.
3. Learned counsel Sri Ameet Kumar Deshpande appearing for the petitioner would contend that the lower appellate Court failed to appreciate the prima-facie case in favour of the petitioner. The trial Court, after applying the judicious mind and considering the material available on 4 record had come to a right conclusion in granting an order of temporary injunction. There being no justifiable reasons, the lower appellate Court set aside the same, which is perverse and arbitrary. The lower appellate Court ought to have seen that there is a serious dispute between the parties regarding the identification of the suit property in question and if the order of temporary injunction is not granted, the very purpose of filing the suit will be frustrated and the status of the property as available on the date of filing of the suit would not be available till the disposal of the suit. Hence, the learned counsel seeks for setting aside the order impugned herein.
4. Learned counsel Sri B.V. Jalde appearing for respondent Nos.1 and 2 would contend that at the first instance, the suit was filed against defendant No.1/respondent No.1. Considering the material available on record, the trial Court granted an order of temporary injunction. It was the specific plea of the defendant No.1/respondent No.1 that the suit property is plot No.9 and 5 the same was purchased by the wife of the defendant No.1/respondent No.1. The registered sale deed dated 29.03.2010 executed by one Narayan Ramchanderrao Pawar in favour of Smt. Komal, the wife of the defendant No.1 was also placed on record along with the Khata certificates and the other relevant documents. These documents were lost sight of by the trial Court while granting an order of temporary injunction. On appeal, the lower appellate Court appreciating the same, allowed the appeal and set aside the order of temporary injunction granted by the trial Court. It is further contended that the defendant has produced the copy of the judgment of this Court in W.P.No.3777/2003, as per which, Narayan S/o Ramchandra was tenant in Sy. No.78/2 and plot No.9 was retained to the said tenant. It is the specific stand of the learned counsel that there is no document to establish that as on 11.02.2013, the plot No.No.245-G was existing. According to the learned counsel, the said property bearing plot No.245-G is no way related to plot No.9 owned and possessed by respondent No.2, the wife 6 of respondent No.1. It is vehemently contended that considering these material aspects, the lower appellate Court was justified in allowing the appeal and setting aside the order of temporary injunction.
5. Having heard the learned counsel appearing for the parties and perusing the material on record, it emerges that the fulcrum of dispute is regarding the identification of the suit property in question. The petitioner is claiming the same as plot No.245-G, whereas the respondents are claiming it as plot No.9. However, the lower appellate Court has given a categorical finding that on perusal of entire documentary evidence placed by both the sides, the schedule of plot No.245-G and plot No.9 are one and the same; The existence of suit property is not in dispute. It is the claim of the petitioner that the said plot No.245-G was allotted to him through an allotment order and the registered sale deed is executed by respondent No.3, whereas the respondents are claiming their right over the suit property as the absolute 7 purchasers through a registered sale deed. It is the further contention of the respondents that the Corporation has sanctioned the plan to construct the building to the respondent No.2, but subsequently the Corporation has issued notice to the respondent No.2 to stop the work. These factors establish that a full fledged trial would disclose the valid title of the suit property.
6. The lower appellate Court proceeded on the footing that the present suit is filed by the petitioner without impleading a proper party, respondent No.2 herein. It is significant to note that the petitioner had filed an application for impleadment of second respondent subsequent to the order or temporary injunction passed by the trial Court and the same came to be allowed and in terms of the order dated 28.01.2015, respondent No.2 Smt. Komal, the wife of respondent No.1 was brought on record. The same not being appreciated by the lower appellate Court, held that the Court cannot give any finding in the absence of the second 8 respondent, who was a necessary party to the proceedings. Based on the possession certificate placed on record by the respondent No.1 to establish that the respondent No2 is the owner of plot No.9, decided the issue of possession and arrived at a decision that the respondents have established the prima facie case and the balance of the convenience is in their favour.
7. However, considering the factual matrix of the case as narrated above, this Court is of the opinion that the respondent No.2 if proceeds with altering the nature of the plot No.9, the same would cause great hardship and irreparable loss to the petitioner. If the petitioner succeeds in the suit, it would obviously cause the hardship to the respondents also. In the circumstances, this Court is of the considered view that it is appropriate to direct the parties to maintain status-quo of the suit property until the disposal of the suit. Hence, the orders at Annexures-E and F1 are 9 modified, directing the parties to maintain status-quo of the suit property till the final disposal of O.S. No.465/2014.
Writ petition stands disposed of accordingly. The trial Court shall dispose of the suit in an expedite manner.
Sd/-
JUDGE LG