Smt. Theresa vs Asha Robert
2021 Latest Caselaw 1009 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 16TH DAY OF JANUARY, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

              M.F.A. NO.2942/2020 (CPC)
BETWEEN:
Smt. Theresa
W/o. R.Venugopal
Aged about 50 years
R/at No.3, 2nd cross
Sai Layout, Kaverinagar
Vaddarapalya, Horamavu Agara
Bangalore-560043.
                                              ...Appellant
(By Sri. K.Murthy, Advocate,)
AND:
1.     Asha Robert
       D/o Mr.J.Robert, Aged about 38 years
       R/at No.5, Govindappa Garden
       Kateriamman Temple, Dodigunta
       Cox Town, Bangalore-560005.

2.     The Assistant Executive Engineer
       Horamavu Sub-Division
       Bruhat Bangalore Mahanagara Palike
       Bangalore-5600043.
3.     The Commissioner
       Bruhat Bangalore Mahanagara Palike
       Hudson Circle
       Bangalore-560002.               ...Respondents
(By Sri H. S. Pradeep, Advocate for R1;
    Sri. Ashwin S. Halady., Advocate for R2 and R3)
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     This MFA filed U/O 43 Rule 1(r) of CPC against
the order dated 18.03.2020 passed on I.A.No.2 in
O.S.No.26372/2019 on the file of the LVII Additional
City Civil and Sessions Judge, Mayo Hall Unit,
Bengaluru, (SCCH-58), allowing the I.A.No.2 filed under
Order 39 Rule 1 and 2 R/W Section 151 of CPC.

     This M.F.A. coming on for Orders, this day, the
Court delivered the following:-

                      JUDGMENT

Though the matter is listed for consideration of

I.A.Nos.1/2020 and 3/2020, with the consent of both

the learned counsel, the matter is taken for final

disposal.

2. Heard the learned counsel for the appellant

and the learned counsel for respondent No.1 and the

learned counsel for respondent Nos.2 and 3 - BBMP and

perused the material on record.

3. On 14.10.2020, this Court passed the

following interim order;

"Heard learned counsel for the appellant. No representation by the learned counsel for respondent No.1.

Despite service of notice, respondent Nos.2 and 3 have not appeared.

I.A. No.2/2020 is under Order XLI Rule 5 of CPC. It is submitted that, the appellant is constructing the building in accordance with the sanction plan and licence and she has also constructed major portion of the construction work on the ground floor in the year 2019, except plastering, painting and other minor works and no illegal structures have been constructed. In view of the interim order passed by the trial Court, the plaintiff is put to great hardship and injustice. The appellant has given undertaking that she will not claim equity if the respondent No.1 succeeds before the Court below.

In view of the reasons stated in the affidavit and the submission of the learned counsel for the appellant, I.A. No.2/2020 is allowed. There shall be stay of order dated 18.03.2020 passed on I.A. No.2 under Order 39 Rule 1 and 2 of CPC in O.S.

No.26372/2019 by the LVII Additional City

Civil & Sessions Judge (Mayo Hall), Bengaluru, till next date of hearing. List this matter after three weeks."

4. Learned counsel for the appellant submits

that pursuant to the aforesaid interim order passed by

this Court, the appellant is carrying on plastering,

painting and other minor works in the ground floor

portion of the suit 'B' schedule property and the same is

nearing completion.

5. Under these circumstances, without

expressing any opinion on the merits/demerits of the

rival contentions, I deem it fit and appropriate to

dispose of the appeal by issuing certain directions.

6. In the result, I pass the following:-

ORDER

(i) Appeal is disposed off.

(ii) The impugned order dated 18.03.2020 passed

on I.A.No.2 in O.S.No.26372/2019 by the trial court is

hereby modified.

(iii) The appellant is permitted to carry on

plastering, painting and other minor works on the suit

'B' schedule property subject to filing of an undertaking

that the appellant shall not claim equity in this regard

and that the same would be subject to the result of the

suit.

(iv) The appellant is directed to file the affidavit of

undertaking before the trial Court, within four weeks

from the date of receipt of copy of this order.

(v) It is made clear that except the aforesaid

permission granted in favour of the appellant, the

appellant shall not put up any further constructions on

any portion of the 'B' schedule property till disposal of

the suit.

(vi) The trial Court is directed to dispose of the suit

as expeditiously as possible and preferably within a

period of the six months from the date of receipt of copy

of this order.

Sd/-

JUDGE

HA/VN