Sri Srinivasa H vs Smt. B R Prabhavathi

Karnataka High Court

Sri Srinivasa H vs Smt. B R Prabhavathi on 9 May, 2024

                                           -1-
                                                        NC: 2024:KHC:17164
                                                     MFA No. 2827 of 2024




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 9TH DAY OF MAY, 2024

                                          BEFORE
                        THE HON'BLE MR JUSTICE C.M. POONACHA
                 MISCELLANEOUS FIRST APPEAL NO. 2827 OF 2024 (CPC)
               BETWEEN:

               SRI SRINIVASA H
               S/O M SRIVATSAV
               AGED ABOUT 40 YEARS
               R/AT FLAT NO.003, B BLOCK V2,
               POORVI ENCLAVE NEAR RAMAPRIYA
               BRINDAVAN GARDENIA AREHALLY,
               SUBRAMANYAPURA,
               BANGALORE- 560061.
                                                                 ...APPELLANT
               (BY SRI. M R RAJAGOPAL, SENIOR COUNSEL FOR
                   SRI. SREENIVASA PATAVARDHAN K R., ADVOCATE)

               AND:

               SMT. B R PRABHAVATHI
               D/O LATE RAMACHANDRAIAH,
               W/O C S NAGARAJAN,
Digitally      AGED ABOUT 63 YEARS,
signed by H    R/AT 252, 13TH MAIN,
K HEMA         2ND CROSS, 2ND BLOCK,
Location:      BANASHANKARI 1ST STAGE,
High Court     BANGALORE-560050.
of Karnataka                                                  ...RESPONDENT
               (BY SRI. J ARAVIND BABU., ADVOCATE FOR C/R1)

                    THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
               AGAINST THE ORDER DATED 27.04.2024 PASSED ON I.A. NO. 1 IN
               O.S.NO.2387/2024 ON THE FILE OF THE 17TH ADDITIONAL CITY
               CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-16),
               ALLOWING THE I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
               READ WITH SECTION 151 OF CPC AND ETC.
                                   -2-
                                                  NC: 2024:KHC:17164
                                              MFA No. 2827 of 2024




    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The present appeal is filed challenging the Order dated 27.04.2024 passed on I.A.No.1 in O.S.No.2387/2024 wherein the Trial Court has granted an ad-interim injunction restraining the appellant/defendant from putting up any further construction.

2. In the present appeal, the appellant has filed an affidavit dated 09.05.2024, wherein he has undertaken as follows:

"7. The construction has already reached three floors and the civil work almost all is completed on the property belonging to the appellant-defendant and the order of injunction granted at this stage would substantially affect the interest of the appellant -defendant and the hardship will have serious consequences so far as investment of the appellant in related to the construction is concerned. Therefore, he is advised to file the affidavit undertaking in the following terms:

a) Any construction put up in the event if it is completed by the appellant-defendant, it is needless to state that it is subject to the result of the suit and the parties shall abide by the decree to be passed by the Civil Court in the pending suit.

b) The appellant makes further statement through this affidavit as an undertaking that in the event if the suit is decreed by holding that the construction undertaken by the appellant-defendant, has encroached as alleged by the plaintiff-respondent, the appellant-defendant is undertaking to demolish such construction to the extent -3- NC: 2024:KHC:17164 MFA No. 2827 of 2024 of encroachment if it is so held by the trial court in the pending suit, to the extent of such encroachment the appellant-defendant shall undertake to restore the vacant place at the cost and risk of the appellant-

defendant without claiming any equity in the event if the decree attains finality as against the appellant-defendant is concerned."

3. In view of the undertaking given by the appellant/defendant as noticed above, the Order dated 27.04.2024 on I.A.No.1 in O.S.No.2387/2024 passed by the 17th Addl. City Civil and Sessions Judge, Bengaluru (CCH-16), in respect of schedule 'B' property is set aside.

4. It is hereby ordered that in the event the suit of the plaintiff is decided against the defendant, he shall restore the vacant place at his own risk and without claiming any equities in terms of the affidavit dated 09.05.2024.

Ordered accordingly.

In view of the disposal of the appeal, I.A.1/2024 is disposed of as being unnecessary.

SD/-

JUDGE BNV List No.: 2 Sl No.: 68