Karnataka High Court
Mr G S Mruthyunjaya Swamy vs B Arasoji Rao Charities on 29 April, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:17863
MFA No. 8690 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8690 OF 2024 (CPC)
BETWEEN:
1. MR. G.S. MRUTHYUNJAYA SWAMY,
MR. LATE SRI. SIDDHALINGARADHYA,
AGED ABOUT 69 YEARS,
R/AT.NO.29 SREE RENUKA,
ISEC 2ND CROSS ROAD,
NAGARBHAVI, BENGALURU - 560 072.
2. MR. H. JAYANTYH
S/O. MR. H.C HANUMANTHAIAH,
AGED ABOUT 41 YEARS,
R/AT. NO.07 5TH B CROSS,
GIRININAGAR, 3RD PHASE,
BENGALURU SOUTH,
BANASHANKARI 3RD STAGE,
Digitally signed BENGALURU - 560 085.
by RAMYA D
Location: HIGH 3. MR. VIJAY K MULUGUND
COURT OF S/O. MR. K KRISHNA MULUGUND,
KARNATAKA AGED ABOUT 77 YEARS,
R/AT. NO. 1786, 7TH MAIN,
2ND STAGE, RAJAJINAGAR,
BENGALURU - 560 010.
...APPELLANTS
(BY SRI. K.M. PRAKASH, ADVOCATE)
AND:
1. B. ARASOJI RAO CHARITIES
REGISTERED CHARITABLE ENDOWMENT
HAVING ITS OFFICE AT
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NC: 2025:KHC:17863
MFA No. 8690 of 2024
NO.168, R.V. ROAD, MINERVA CIRCLE,
V.V PURAM, BENGALURU.
REP BY ITS PRESIDENT.
2. DR. K. JAYOJI RAO
S/O. MR. KENCHOJI RAO,
AGED ABOUT 78 YEARS,
R/AT NO.85 10TH A CROSS,
1ST MAIN, 2ND STAGE,
WEST OF CHORD ROAD,
BENGALURU - 560 086.
TRUSTEE AND PRESIDENT OF
BOARD OF TRUSTEES
3. MR. PRABHAKAR N RAO
S/O. LATE MR. NARAYAN RAO
AGED ABOUT 64 YEARS,
R/AT NO.14, 3RD CROSS,
SHANKARPURAM,
BENGALURU - 560 004.
TRUSTEE AND PRESIDENT OF
BOARD OF TRUSTEES
4. SRI. G. KRISHNAMURTHY,
S/O MR. GOVINDA RAO
AGED ABOUT 64 YEARS,
R/AT NO.595, 16TH CROSS,
35TH MAIN, J.P. NAGAR,
6TH PHASE, BENGALURU - 560 065.
TRUSTEE AND PRESIDENT OF
BOARD OF TRUSTEES
5. SRI. BABA RAO ANAND RAO MUCHANDI
S/O. MR. ANAND RAO,
AGED ABOUT 75 YEARS,
R/AT NO.1469, 2ND CROSS,
JUDICIAL LAYOUT, G.K.V.K,
BENGALURU NORTH,
BENGALURU - 560 065.
TRUSTEE
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NC: 2025:KHC:17863
MFA No. 8690 of 2024
6. SMT. SUJAYA SATHYANARAYANA
W/O A.SATHYANARAYANA RAO,
AGED ABOUT 85 YEARS,
R/AT NO.691, 10TH A MAIN, 4TH BLOCK,
JAYANAGAR, BENGALURU - 560 011.
TRUSTEE
7. SRI. CHANDRAKANTH JADHAV
S/O. HANUMANTHAPPA,
AGED ABOUT 69 YEARS,
R/AT. NO.22 1 CROSS, MLA LAYOUT,
R.T. NAGAR, BENGALURU - 560 032.
TRUSTEE
8. MR. MUKUNDA RAO
S/O MR. RAMAKRISHNA RAO,
AGED ABOUT 72 YEARS,
R/AT. NO.153, 6TH B MAIN ROAD,
REMCO LAYOUT,
VIJAYANAGAR 2ND STAGE,
BENGALURU - 560 040.
TRUSTEE
9. MR. N.D. DASARATH RAO
S/O. N. DURGOJAPPA,
AGED ABOUT 62 YEARS,
R/AT. F- 699, F-1 BHARATH ENCLAVE,
12TH A CROSS, 2ND A MAIN,
BHARATHNAGAR,
BENGALURU - 560 009.
TRUSTEE
10. MR. ARAVINDH JADHAV,
S/O. MR. M N JADHAV,
AGED ABOUT 67 YEARS,
R/AT NO.23, M.C.H.S,
5TH MAIN, BTM LAYOUT,
2ND STAGE, BENGALURU - 560 076.
TRUSTEE
11. SRI. P.H. RANE
S/O. HADU,
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NC: 2025:KHC:17863
MFA No. 8690 of 2024
AGED ABOUT 66 YEARS,
R/AT NO.54, 1ST A MAIN,
4TH CROSS, RMV II STAGE,
ASHWATHNAGAR,
BENGALURU - 560 076.
...RESPONDENTS
(BY SRI. G. KRISHNAMURTHY, SENIOR ADVOCATE A/W
SRI. SAGAR. B. B, ADVOCATE FOR THE CAVEAT RESPONDENT)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.27.11.2024 PASSED IN
O.S.NO.3397/2024 ON THE FILE OF THE XXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-9),
ALLOWING THE APPLICATION FILED U/O.39 RULE 1 AND 2
R/W SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The defendants in O.S.No.3397/2024 have filed this appeal challenging the order dated 27.11.2024 passed on I.A.No.2 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, in O.S.No.3397/2024 on the file of XXVII Additional City Civil and Sessions Judge (CCH-9), Bengaluru (hereinafter referred to as 'the Trial Court' for short) thereby, the application filed for temporary injunction was allowed, restraining the defendants, their -5- NC: 2025:KHC:17863 MFA No. 8690 of 2024 henchmen, agents or anybody claiming through them from interfering with plaintiffs' peaceful possession and enjoyment of the suit schedule property pending disposal of the suit.
2. The plaintiffs have filed a suit for perpetual injunction against the defendants. It is the case made out by the plaintiffs that they are the owners of the land bearing Sy.No.14 to the extent of 2 acre 15 guntas, presently forming part of 5th Block, Rajajinagar, Bengaluru, within the jurisdiction of the BBMP Ward No.174. It is stated that the plaintiffs are a testamentary public charitable trust established under the Will executed by one Sri. Arasoji Rao B. on 17.07.1945. It is alleged that in the plaint that the defendants, without any lawful authority or interest over the suit schedule property have attempted to interfere with the property, asserting that it was gifted to one Sri. Keshav Pai, son of B. Venkatarama Pai by Smt. Mannu Bai, widow of the testator and mother- in-law of V. Ramachandra Rao and Subba Rao along with -6- NC: 2025:KHC:17863 MFA No. 8690 of 2024 one A. Sathyanarayana, son of Ramachandra Rao. The said purported Gift Deed was challenged by the trustees in O.S.No.367/1973 (renumbered as O.S.No.402/1980) before the Court of II Additional Civil Judge, Bengaluru City, as being contrary to the intent of the Will. In the said suit, by judgment and decree dated 01.08.1997, the Gift Deed was declared null and void. Thereafter, the appeal preferred before this Court in RFA No.733/1997 was dismissed on 22.08.2013 and the said judgment and decree was confirmed and it attained finality.
3. It is the case of the plaintiffs that the plaintiffs have taken possession of the suit schedule property of bearing Sy.No.14 to the extent of 2 acre 15 guntas in Execution Proceedings No.466/1999. It is stated that in the Execution Proceedings No.466/1999, a Court Commissioner was appointed, who demarcated the land and handed it over to the plaintiffs/trust. When this being the fact, the defendants are trying to interfere with the plaintiffs' possession of the suit schedule property. -7-
NC: 2025:KHC:17863 MFA No. 8690 of 2024 Therefore, the plaintiffs filed suit for perpetual injunction and an application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC and the Trial Court allowed the said application. Against the said order granting temporary injunction, the appeal is preferred.
4. It is the case of the defendants that the City Improvement Trust Board, Bengaluru ('CITB' for short) has allotted Civic Amenity Site ('CA Site' for short) No.117, 117A and 117B, on which the Panduranga VittalaTemple exists and it is not part and of the suit schedule land. The defendants are not concerned with the suit schedule land to the extent 2 acre 15 guntas, bearing Sy.No.14 of Rajajinagar, Bengaluru. However, the plaintiffs, under the guise of claiming ownership of the land bearing Sy.No.14 to the extent 2 acre 15 guntas are trying to usurp the Panduranga Vittala Temple, which exists adjacent to the suit schedule land. The plaintiffs wrongly claim that they are owners of the property where the Panduranga Vittala Temple exists as part of the land bearing Sy.No.14 to the -8- NC: 2025:KHC:17863 MFA No. 8690 of 2024 extent of 2 acre 15 guntas. But actually, the Panduranga Vittala Temple does not exist within Sy.No.14 to the extent of 2 acre 15 guntas; instead, it exists separately in CA site No.117, which was granted by the then CITB (now Bengaluru Development Authority (BDA)).
5. Further, it is the case of the defendants that in Execution Proceedings No.466/1999, the Court Commissioner has clearly demarcated and identified the land to the extent of 2 acre 15 guntas and after accepting the Court Commissioner's report, the Executing Court handed over possession to the plaintiffs. The defendants do not have any grievance regarding this. However, the plaintiffs are claiming that the property where the Pandurang Vittala Temple exists is part of the land bearing Sy.No.14, which is not true. The Panduranga Vittala Temple exists on CA Site No.117, which was granted by CITB Bengaluru in 1963. Therefore, based on the above pleadings, the defendants prayed for dismissal of the application, as the plaintiffs do not have a prima facie -9- NC: 2025:KHC:17863 MFA No. 8690 of 2024 case, but the Trial Court has granted an order of temporary injunction.
6. The Trial Court assigned reasons while granting an order of temporary injunction by allowing the application noting that the suit schedule property was undisputedly owned by Sri. B. Arasoji Rao. The Trial Court considered the documentary evidence placed by the plaintiffs, including the judgment and decree in O.S.No.367/1973 (renumbered as O.S.No.402/1980), which declared the Gift Deed dated 05.10.1961 null and void. The Trial Court considered the Execution Proceedings No.466/1999 and the judgment and decree confirmed in RFA No.733/1997 by this Court as well as the revenue records showing that the suit schedule properties stand in the names of plaintiffs/trust. After considering the Court Commissioner's report in the Execution Proceedings, which noted the handing over of possession of the land bearing Sy.No.14 to the extent of 2 acre 15 guntas, the Trial Court found that the plaintiffs had made
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 a prima facie case and accordingly granted an order of temporary injunction.
7. Heard arguments from both sides and perused the documentary materials placed on record.
8. Upon hearing the learned counsel for both the parties and perusing the documentary materials placed on record, the following points arise for consideration:
i. Whether, under the facts and circumstances involved in the case, the plaintiffs made out a prima facie case for grant of an order of temporary injunction?
ii. Whether, under the facts and circumstances involved in the case, the plaintiffs proved that there is balance of convenience in their favour?
iii. Whether, under the facts and circumstances involved in the case, if an order of temporary injunction is not granted, the plaintiffs will suffer loss and injury?
iv. Whether, under the facts and circumstances involved in the case, the
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 order passed by the Trial Court of granting an order of temporary injunction requires any interference by this Court?
9. Learned counsel for the appellants/defendants vehemently submitted that the suit filed by the plaintiffs is misconceived and that under the guise of filing a suit for perpetual injunction, stating that the suit schedule property is the land bearing Sy.No.14 to the extent 2 acre 15 guntas, the plaintiffs are trying to grab the Panduranga Vittala Temple existing in CA site No.117, which was granted by the CITB to the defendants. Further, submitted that the defendants have no dispute regarding the plaintiffs' ownership of the suit schedule land bearing Sy.No.14 to the extent of 2 acre 15 guntas. However, the plaintiffs' attempt in filing suit is to wrongly claim that the Panduranga Vittala Temple existing in CA Site No.117 is part of the land bearing Sy.No.14 to the extent of 2 acre 15 guntas. The Court Commissioner in Execution Proceedings No.466/1999 clearly demarcated the plaintiffs' land by preparing a sketch and the Trial Court handed
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 over the suit schedule land to the extent of 2 acre 15 guntas to the plaintiffs, to which the defendants have no objection. The Court Commissioner's report, which was accepted by the Executing Court while handing over possession to the plaintiffs, clearly demarcated the suit schedule land to the extent of 2 acre 15 guntas and the Panduranga Vittala Temple, which is part of CA site No.117. When this being the Court Commissioner's report, the plaintiffs are now wrongly claiming that the Panduranga Vittala Temple is part of the suit schedule land simply because it is adjacent to it.
10. Further, submitted that the defendants had placed all the documentary materials before the Trial Court viz., the grant of CA site No.117, 117A and 117B to the defendants/trust, the Court Commissioner's report along with the sketch, tax paid receipts, BDA documents and the observations made by the Executing Court regarding the structures existing in the suit schedule land to the extent of 2 acre 15 guntas. Particularly, the Executing Court's
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 observations do not mention the Panduranga Vittala Temple in the land handed over to the plaintiffs. However, the Trial Court failed to peruse all these documentary materials and instead considered only a few documents placed by the plaintiffs while granting the order of temporary injunction. Therefore, submitted that the observations and reasonings made by the Trial Court while allowing the application for grant of temporary injunction is perverse and illegal.
11. It is submitted that when the defendants have submitted voluminous documents showing how the plaintiffs' claim is misconceived and an attempt to usurp the Panduraga Vittala Temple, this was not fairly considered by the Trial Court. Therefore, it is submitted that the order passed by the Trial Court is perverse, unjust and illegal.
12. Further, submitted that the defendants have no dispute regarding the Court Commissioner's report and sketch demarcating the suit schedule land and CA site
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 Nos.117, 117A and 117B in Execution Proceedings No.466/1999. However, the plaintiffs by only mentioning the suit schedule land as Sy.No.14 to the extent of 2 acre 15 guntas in the suit, are trying to grab the property where the Panduranga Vittala Temple exists, which was not considered by the Trial Court. Therefore, submitted that the observations and reasonings given by the Trial Court while allowing the application are illegal, perverse and unjust. Thus, prays to interfere with the order passed by the Trial Court.
13. In support of the arguments, learned counsel for the appellants/defendants places reliance on the judgment of Hon'ble Supreme Court in the case of RAMAKANT AMBALAL CHOKSI VS. HARISH AMBALAL CHOKSI AND OTHERS1 (Ramakant Ambalal Choksi's Case)
14. On the other hand, learned Senior Counsel appearing for the respondents/plaintiffs submitted that the 1 Civil Appeal No.13001/2024 dated 22.11.2024
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 plaintiffs/trust are the owners of the suit schedule land bearing Sy.No.14 to the extent of 2 acre 15 guntas, which was given in possession to the plaintiffs by virtue of the judgment and decree passed in O.S.No.367/1973 (renumbered as O.S.No.402/1980) and in RFA No.733/2013. Accordingly, the Executing Court in Execution Proceedings No.466/1999 appointed a Court Commissioner, who clearly demarcated the suit schedule land and the suit schedule land was handed over to the plaintiffs. When this being the unequivocal title proved by the plaintiffs, the defendants started interfering with the suit schedule land therefore, the plaintiffs were constrained to file suit for perpetual injunction and the Trial Court correctly granted an order of temporary injunction.
15. Further argued with reference to the judgment in RFA No.733/1997, wherein the boundaries are clearly mentioned and this was correctly appreciated by the Trial Court while considering the prima facie case involved in
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 the suit and accordingly granted an order of temporary injunction.
16. Learned Senior Counsel also placed various documents on record, including the issues framed in O.S.No.402/1980, the points for consideration and the findings given in RFA No.733/1997, which conclusively prove that the plaintiffs are owners of the suit schedule land bearing Sy.No.14 to the extent of 2 acre 15 guntas, where the Panduranga Vittala Temple exists. The defendants attempt to interfere with the possession of the Panduranga Vittala Temple was rightly considered by the Court finding aprima facie case and granted an order of temporary injunction.
17. Further submitted that B. Arasoji Rao is a philanthropist, executed a Will bequeathing property in favour of plaintiffs/trust and the plaintiffs/trust is running several charitable activities. However, the defendants with an eye on the Panduranga Vittala Temple, are making false claim that the Panduranga Vittala Temple exists in CA
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 site No.117, when it is actually part of the suit schedule land bearing Sy.No.14 to the extent of 2 acre 15 guntas. Therefore, the Trial Court after considering the pleadings and documentary materials placed by both the parties, correctly found that the plaintiffs have a prima facie case and accordingly granted an order of temporary injunction, which need not be interfered with. Thus, prays to dismiss the appeal.
18. In support of the arguments, learned Senior Counsel places reliance on the following judgments of Hon'ble Supreme Court and High Court:
a. ANAND PRASAD AGARWALLA VS.
TARKESHWAR PRASAD AND OTHERS2 (Anand Prasad Agarwalla's Case) b. WANDER LTD. AND ANOTHER VS.
ANTOX INDIA P LTD.3 (Wander Ltd. and Another's Case) c. D.R. CHAWLA AND OTHERS VS.
MUNICIPAL CORPORATION OF DELHI 2 (2001) 5 SCC 568 3 1990 (Supp) SCC 727
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 AND OTHERS4 (D.R. Chawla and Others Case) d. GANGUBAI BABLYA CHAUDHARY AND OTHERS VS. SITARAM BHALCHANDRA SUKHTANKAR AND OTHERS5 (Gangubai Bablya Chaudhary and Others Case) e. C.J. INTERNATIONAL HOTELS LTD. AND OTHERS VS. N.D.M.C AND OTHERS6 (C.J. International Hotels Ltd. and Others Case) f. SOURAV SARKAR VS. HIRAK RANJAN SARKAR AND ANOTHER7 (Sourav Sarkar's Case) g. JHARKHAND STATE HOUSING BOARD VS. DIDAR SINGH AND ANOTHER8 (Jharkhand State Housing Board Case) h. SRI. KESHAVA PAI (DECEASED BY LR'S) VS. SRI. V. JOTHOJI RAO AND OTHERS9 (Sri. Keshava Pai (deceased by LR's) Case)
19. The plaintiffs have filed the suit for perpetual injunction by pleading that the defendants are causing 4 (1993) 3 SCC 5 (1983) 4 SCC 6 2001 (60) DRJ 562 7 2022 SCC Online Cal 3840 8 (2019) 17 SCC 692 9 RFA No.733/1997
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 interference with the possession of the plaintiffs over the suit schedule properties.
20. For the purpose of clear understanding of the lis between the parties, it is just and necessary to extract the schedule of the properties mentioned in the plaint as below:
SCHEDULE "All that is piece and parcel of land with buildings erected therein Sy.No.14 measuring 2 Acres and 15 Guntas of land situated at Jedahally Village, Magadi Road, Bangalore, North Taluk now included in 5th Block, Rajajinagar, within BBMP Ward Number 174 and bounded on East By: Cheluvaih's land West By: Charity Land North By: Track leading to Laggere South by: B.S. Subbiah's land"
21. On the other hand, it is the case made out by the defendants in the written statement and also in the arguments canvassed by the learned counsel for the appellants/defendants that the defendants do not have any dispute regarding the ownership of the plaintiffs over
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 the suit schedule property above stated. However, the submission of the learned counsel for the defendants is that the plaintiffs are trying to grab the Panduranga Vittala Temple situated in CA site No.117, which was granted by the then CITB, Bengaluru (now BDA) to the defendants/appellants.
22. When this is the rival claim by both parties, it needs to be considered whether the Panduranga Vittala Temple is situated on the land demarcated by the Court Commissioner in the Court Commissioner's sketch and report on Gifted land which is accepted by the Executing Court in Execution Proceedings OR whether the Temple is situated in CA Site No.117 is to be considered. It is made clear at this stage that while considering this appeal, the focus is only on finding out whether there is a prima facie case and whether there is any perversity in the order considering the application filed by the plaintiffs for temporary injunction.
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23. Learned counsel for both the parties have placed reliance on the judgments of Hon'ble Supre Court on the principle of law of injunction, which are extracted as below:
Reg: The principle of law of injunction:
24. The Hon'ble Supreme Court in the case of Ramakant Ambalal Choksi (Stated supra) held at paragraph Nos.22, 23, 24, 25, 26, 27, 28, 29, 32, 35, 36 and 37 as under:
"22. With regards to (a), this Court held thus:
In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions .... The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below ... If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.
23. This Court, while arriving at the above findings, relied on its earlier judgment in Printers
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 (Mysore) v. Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus:
"[...] as has been observed by Viscount Simon LC in Charles Osenton & Co v. Johnston - the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of well- settled principles in an individual case."
24. It is pertinent to note that is Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v. Johnson reported in 1942 S.C. 130, after stating the above, went on to quote Lord Wright's decision in Evans v. Bartlam reported in 1937 A.C. 473:
"It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order."
25. In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances.
26. What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to:
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders.
27. The principles of law explained by this Court in Wander's (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 21 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 "20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion.
Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.".
32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.
35. Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 evidence but is altogether against the evidence. In Godfrey v. Godfrey reported in 106 NW 814, the Court defined "perverse" as "turned the wrong way", not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
36. The expression "perverse" has been defined by various dictionaries in the following manner:
a. Oxford Advanced Learner's Dictionary of Current English, 6th Ed. Perverse - Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
b. Longman Dictionary of Contemporary English - International Edition Perverse - Deliberately departing from what is normal and reasonable.
c. The New Oxford Dictionary of English - 1998 Edition Perverse - Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
d. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse - Purposely deviating from accepted or expected behavior or opinion; wicked and wayward; stubborn; cross or petulant.
e. Stroud's Judicial Dictionary of Words & Phrases, 4th Ed.
Perverse - A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether but is altogether against the evidence.
37. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi and others reported in (2016) 3 SCC 78)."
25. Further, the Hon'ble Supreme Court in the case of Wander Ltd. and another (Stated supra) held at Paragraph No.14 as under:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v.
Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton .... the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 due only to the application of well settled principles in an individual case."
The appellate judgment does not seem to defer to this principle."
26. Further, the Hon'ble Supreme Court in the case of D.R. Chawla and Others (Stated supra) held at Paragraph No.30 as under:
"30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court granted such relief according to the legal principles --- ex debito jutitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. "
27. Further, the Hon'ble Supreme Court in the case of Gangubai Bablya Chaudhary and Others (Stated supra) held at Paragraph No.6 as under:
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 "6. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq. metres of land on which they can put up construction."
28. Further, the Hon'ble Supreme Court in the case of C.J. International Hotels Ltd. and Others (Stated supra) held at Paragraph No.11 as under:
"11. At the stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail. What the Court has to examine is: (i) the plaintiff has a prima facie case to go for trial; (ii) protection is necessary from that species of injuries known as irreparable before his legal right can be established; and (iii) that the mischief of inconvenience likely to arise from withholding injunction will be greater than what it likely to arise from granting int. The principles
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 governing the grant of injunction are well settled. The power is discretionary and is to be exercised on sound judicial principles. Where no violation of the rights of the plaintiffs was involved, the interim injunction should not be granted. It is on these principles that the Court has to examine the respective case of the parties."
29. Further, the Hon'ble Supreme Court in the case of Sourav Sarkar (Stated supra) held at Paragraph No.16 as under:
"16. The term 'irreparable injury' means substantial injury which cannot be adequately remedied or compensated by way of damages and the Court shall consider whether protection is necessary from the species of injuries known as 'irreparable' before his legal right can be established. Court shall consider whether the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise if granted. At this stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail."
30. Further, the Hon'ble Supreme Court in the case of Jharkand State Housing Board (Stated supra) held at Paragraph No.11 as under:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
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NC: 2025:KHC:17863 MFA No. 8690 of 2024
31. Based on the principle of law enunciated above, the appeal is considered based on the documentary materials placed by both the parties. Upon perusal of the impugned order, it is evident that the Trial Court has not at all considered any of the documents placed by the defendants and has only considered the documents placed by the plaintiffs. Upon reading entire order, there is no whisper regarding considering the documents placed by the defendants. Therefore, in this regard, it is incumbent upon this Court to consider the documents placed by both the appellants/defendants and respondents/plaintiffs.
32. It is the case of the plaintiffs that the Gift Deed dated 05.10.1961 was declared as null and void in O.S.No.367/1973 (renumbered as O.S.No.402/1980). It is also not disputed that in RFA No.733/1997, this Court confirmed the judgment and decree passed in the above suit and it had attained finality. In Execution Proceedings No.466/1999 filed by the plaintiffs herein, a Court Commissioner was appointed and the Court Commissioner
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 submitted a report and prepared sketch to the Executing Court and Executing Court, which accepted the same and handed over possession of the suit schedule property to the plaintiffs.
33. It is pertinent to mention here that the suit schedule property is bearing Sy.No.14 to the extent of 2 acre 15 guntas at Rajajinagar, Bengaluru. The appellants/defendants have produced the sketch prepared by the Court Commissioner in the said Execution Proceedings, which clearly demonstrates what property was handed over to the plaintiffs, described as "Smt. Manu Bai Gifted land". It is not disputed that this Smt. Manu Bai's Gifted land is the land for which the Gift deed was declared null and void and the Executing Court handed over possession to the plaintiffs after clearly demarcating the land. This document is not disputed by either the plaintiffs or the defendants. The defendants claim that the plaintiffs are asserting rights over the Panduranga Vittala Temple, claiming it is part and parcel of the suit schedule
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 land. However, upon perusing the Court Commissioner's sketch, it appears that the Panduranga Vittala Temple is situated in CA site No.117, which is adjacent to the suit schedule land. The Court Commissioner has demarcated the lands as Smt. Manu Bai's Gifted land (the suit schedule property) and CA site No.117, 117A and 117B.
34. It is the case of the defendants that the CITB, Bengaluru has granted the CA site No.117 in favour of B. Keshava Pai son of late D. Venkataramana Pai. The grant certificates are produced and prima facie, it is revealed that the suit schedule land and CA site No.117 are two different properties. It is prima facie revealed that Sri. Arasoji Rao B., was owner of the land bearing Sy.No.14 to the extent of 2 acre 15 guntas, whereas CITB, Bengaluru is the owner of the CA site No.117, which is found to be adjacent to the suit schedule land. It is not in dispute that CA site No.117 was granted to B. Keshava Pai and thereafter to the defendants/trust.
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NC: 2025:KHC:17863 MFA No. 8690 of 2024
35. Further, upon considering the boundaries mentioned in the plaint schedule discussed above and the boundaries mentioned in the Court Commissioner's sketch, prima facie they are found to be different. The Trial Court in O.S.No.367/1973 (renumbered as O.S.No.402/1980) gave a finding in its judgment dated 01.08.1987 while answering issue Nos.1 and 2 that the Court Commissioner inspected the spot and the plaintiffs were present during the local investigation. Further, the plaintiffs stated that in the suit schedule property there is an ACC building consisting of a hall, kitchen, latrine and there is Samadhi of the Sri. Arasoji Rao B. Therefore, the plaintiffs being PW-1 in O.S.No.402/1980 have not stated that the Panduranga Vittala Temple is situated in the suit schedule land bearing Sy.No.14 to the extent 2 acre 15 guntas. The documentary materials placed by the defendants while considering the application filed for temporary injunction were not discussed at all in the order of the Trial Court. Thus, prima facie, it is shown that the Panduranga Vittala Temple is not situated in the suit schedule land bearing
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 Sy.No.14 to the extent 2 acre 15 guntas. Whereas, Prima facie, it is revealed that the Panduranga Vittala Temple is situated in CA site No.117.
36. Further, the defendants have produced some of the documents of Dasashrama International Trust regarding holding religion activities, wherein it is stated that on 30.06.1963, there was a ceremony for laying the foundation stone for constructing the Temple. They have also produced some paper cuttings and invitation cards of the religious functions organized by Dasashrama Trust.
37. Further, the BDA has issued a memorandum dated 02.08.2024, calling upon the Dasashrama International Trust to pay the lease amount. In the memorandum, it is mentioned that CA site No.117 was allotted to the Dasashrama Trust for the purpose of the Panduranga Vittala Temple, marriage hall and hospital for a period of 30 years and the 30 years lease period ended on 29.07.2023. Therefore, this memorandum from the BDA also recognizes that in CA site No.117 the
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 Panduranga Vittala Temple, marriage hall and hospital are constructed.
38. Further, the documentary materials placed by the defendants, specifically the trust deed of appointment/resignation dated 05.10.2023, mentions property bearing CA site Nos.117, 117A and 117B wherein, the Panduranga Vittala Temple is built. Additionally, the defendants have produced copy of document the CA site lease agreement (renewal) dated 13.02.2004 between Dasashrama International Trust and BDA. This renewal agreement, in respect of CA site Nos.117, 117A and 117B, mentions the construction of Panduranga Vittala Mandira, Kalyana Mantapa and hospital. In this document, at Para No.7, it is recited accordingly. Furthermore, the defendants/appellants have placed documents such as BESCOM electricity bills issued in the name B. Keshava Das for the Panduranga Vittala Temple. Therefore, all the documents placed before the Trial Court and this Court prima facie reveal that the
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 Panduranga Vittala Temple is situated in CA site No.117, which is adjacent to the suit schedule land. All these documentary materials prima facie reveal that the Panduranga Vittala Temple is situated on the CA site No.117.
39. Upon perusal of the documentary materials placed by the respondents/plaintiffs, which revolves around the suit in O.S.No.367/1973 (renumbered as O.S.No.402/1980), RFA No.733/1997 and Execution Proceedings No.466/1999, it is revealed that these documents do establish the plaintiffs' ownership of the suit schedule land to the extent of 02 acre 15 guntas in Sy.No.14. This Court, in RFA No.733/1997, considered the veracity of the judgment and decree passed in the above suit and examined the boundaries. However, all these documentary materials reveal the plaintiffs' ownership over the suit schedule land bearing Sy.No.14 to the extent of 02 acre 15 guntas, but there is no whisper of CA Site No.117. In the suit in O.S.No.367/1973 (renumbered as
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 O.S.No.402/1980) and in RFA No.733/1997, the specific issue was whether the B.Arasoji Rao had bequeathed the suit schedule property in favour of plaintiffs/trust. The findings on this issue and points for consideration in the suit and in appeal regarding the bequeathment made by the B. Arasoji Rao of the property of Sy.No.14 to the extent of 02 acre 15 guntas to the plaintiffs/trust but do not discuss the properties in CA Site No.117.
40. When comparing and assessing the prima facie case made out by the both the parties as above discussed, with reference to the documentary materials placed before this Court and the Trial Court, it is evident that the Panduranga Vittala Temple is situated on the property CA site No.117, but not on the suit schedule land bearing Sy.No.14 to the extent of 2 acre 15 guntas.
41. Upon perusing the boundaries mentioned in the instant suit, they do not tally with the Court Commissioner's sketch produced in the suit and in the Execution Proceedings. Furthermore, as per the Court
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 Commissioner's report and sketch, the Panduranga Vittala Temple is an extension of property towards South-Eastern side of the suit schedule land. Prima facie it can be seen that the Court Commissioner has not demarcated the Panduranga Vittala Temple as part and parcel of the suit schedule land. In this regard, the Trial Court has failed to apply its mind on the documentary materials.
42. When the Court Commissioner's sketch and report are not disputed by the plaintiffs according to these documents, there is no doubt that the plaintiffs are owner of the suit schedule land to the extent of 02 acre 15 guntas in Sy.No.14. However, when the plaintiffs filed suit for perpetual injunction, they ought to have shown the suit schedule property on which the Panduranga Vittala Temple exists as the property being tried to be encroached upon by the defendants. But it is not so as per the pleadings and schedule of the plaintiffs, which only mentions Sy.No.14 to the extent of 02 acre 15 guntas. The defendants do not dispute that the plaintiffs are the
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 owners of the suit schedule land bearing Sy.No.14 to the extent of 02 acre 15 guntas. But the documentary materials placed by the defendants prima facie reveal that the Panduranga Vittala Temple is situated in CA Site No.117 but not in Sy.No.14 to the extent of 02 acre 15 guntas.
43. Further, in the plaint of O.S.No.367/1973 (renumbered as O.S.No.402/1980), the plaintiffs herein have produced schedule by mentioning the schedule property as Bengaluru City Corporation Limit bearing Door No.174. Later, Sy.No.14 to the extent of 02 acre 15 guntas might have been changed into as No.174. However, even if by this is the case, CA site No.117 is not part of the City Corporation Door No.174.
44. Therefore, the Trial Court has simply swayed by the judgment and decree passed in O.S.No.367/1973 (renumbered as O.S.No.402/1980), RFA No.733/1997 and Execution Proceedings No.466/1999, forming the opinion
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 that the plaintiffs have already been declared as owners of the suit schedule land. However, the Trial Court has not discussed how CA Site No.117 is part of the land bearing Sy.No.14 to the extent of 02 acre 15 guntas. Perhaps, if the Trial Court had considered the documentary materials placed by the defendants, the reasonings of the Trial Court would have been different. Therefore, in this regard, the Trial Court has committed error in not considering the documentary materials placed by the defendants, which amounts to perversity on the part of the Trial Court.
45. Though, this Court, being an appellate Court, normally would not interfere with the order passed on interlocutory application unless there is a glaring error and perversity in the approach of the Trial Court, as discussed above and following the principle of law laid down by the Hon'ble Supreme Court, it is evident that the Trial Court has committed an absolute error in not considering the documentary materials placed by the defendants, resulting in passing an erroneous order of granting temporary
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 injunction. Therefore, I answer point Nos.(i) to (iii) in the Negative and point No.(iv) in the Affirmative. Hence, the order passed by the Trial Court on the application for temporary injunction is liable to be set aside. Therefore, the appeal is liable to be allowed.
46. In the result, I proceed to pass the following:
ORDER i. The appeal is allowed.
ii. The order dated 27.11.2024 on I.A.No.2 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, in O.S.No.3397/2024 on the file of XXVII Additional City Civil and Sessions Judge (CCH-9), Bengaluru, is hereby set aside. iii. Whatever the observations and reasonings are given are made only for the limited purpose of considering the aspect of prima facie case as pleaded by the plaintiffs and defendants but shall not be construed as deciding the merits involved in the case. Therefore, the Trial Court shall not get influenced by the above observations while
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NC: 2025:KHC:17863 MFA No. 8690 of 2024 disposing the suit and shall appreciate evidence on record during course of trial, evaluate and assess independently without regard to the observations made above and pass appropriate orders in accordance with law.
iv. The Trial Court shall expedite the Trial and dispose of the suit as early as possible, for which both the parties are directed shall cooperate with the Trial Court for early disposal.
v. The request made by the learned Senior Counsel for staying the order till the appeal is preferred before the Hon'ble Apex Court is declined.
vi. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 61