Sri Jayaram K vs Indian Oil Corporation Ltd (Iocl)
2021 Latest Caselaw 2509 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JUNE, 2021

                         BEFORE

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

              M.F.A.No.2014 OF 2021(CPC)
BETWEEN

SRI. JAYARAM.K
SON OF LATE KRISHNAPPA
AGED ABOUT 47 YEARS
RESIDING AT NO. 297, DODDAMANEKRISHNAPPA LAYOUT
NEAR ANJANEYA TEMPLE
ARAKERE, BANNEGHATTA ROAD
BENGALURU SOUTH
BENGALURU - 560 076.
                                            ...APPELLANT
(BY SRI. S. SREEVATSA. SR. COUNSEL A/W
    SRI. P. FREUD RICHRDSON AND
    SRI. TAHURA ANZAR, ADVOCATES)
AND

INDIAN OIL CORPORATION LTD (IOCL)
A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956
BANGALORE DIVISIONAL OFFICE
NO. 29, P. KALINGA RAO ROAD
(MISSION ROAD), BANGALORE - 560 027.

ALSO AT:
HEAD OFFICE AT:
INDIAN OIL BHAVAN
NO. G-9 ALI YAVAR JUNG MARG
BANDRA EAST, MUMBAI - 400 051.

REPRESENTED BY
ITS AUTHORISED REPRESENTATIVE
MR. HIMANSHU SHARMA.
                                           ...RESPONDENT
(BY SRI. DHANANJAY JOSHI, ADVOCATE)
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       THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT: 23.04.2021 PASSED ON I.A.NO.1 IN
O.S.NO. 2087/2021 ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY, (CCH-18), DISMISSING
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ETC.

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


                          JUDGMENT

This appeal by the plaintiff in O.S.No.2087/2021 is

directed against the impugned order dated 23.04.2021 passed

by the 19th Addl.City Civil and Sessions Judge, Bengaluru,

whereby the application I.A.1 filed by the appellant - plaintiff

under Order 39 Rules 1 and 2 CPC restraining the respondent

- defendant from interfering with the appellant's peaceful

possession and enjoyment of the suit schedule property was

dismissed by the trial court with costs of Rs.500/-.

2. Heard Sri.Sreevatsa, learned Senior counsel

appearing for the appellant and Sri.Dhananjay Joshi, learned

counsel appearing for the respondent.

3. In addition to reiterating the various contentions

urged in the memorandum of appeal and referring to the

documents produced, learned senior counsel for the appellant

invites my attention to the schedule to the plaint, where the

appellant - plaintiff has described the suit schedule property

as portion of Sy.No.44, Devarachikkanahalli village, Begur

Hobli, Bangalore South Taluk, Bangalore, measuring 30

guntas with specific boundaries as can be seen from the

schedule to the plaint. It is submitted that the said schedule

property having been notified for acquisition by the BDA, the

appellant preferred W.P.No.35143-147/2019 before this Court.

By final order dated 18.09.2019, this Court allowed the said

petition quashing the acquisition proceedings insofar as the

schedule property of the appellant is concerned.

It is also pointed out by the learned senior counsel that

instead of challenging the said order passed by the learned

Single Judge of this Court, the BDA executed a registered

lease deed dated 04.11.2019 in favour of the respondent -

defendant purporting to lease out the portion of the schedule

property i.e., 12,000 sq.mtrs in favour of the respondent -

defendant. After lapse of one year, the BDA filed

W.A.No.601/2020 challenging the order of the learned Single

Judge by specifically contending at paragraph-11 of the

memorandum of appeal that the said portion of the schedule

property had already been allotted in favour of the respondent

herein on 25.01.2019 itself and as such, the order of the

learned Single Judge deserves to be quashed. By final

judgment dated 19.01.2021, the Hon'ble Division Bench of this

Court dismissed the said appeal interalia holding that the BDA

had not made out sufficient cause to seek condonation of

delay in preferring the appeal after referring to the lack of due

diligence on the part of the BDA in preferring the appeal,

despite executing the lease deed in favour of the respondent -

defendant on 04.11.2019, about one year prior to preferring

the appeal.

It is further submitted by the learned senior counsel that

it is not in dispute that the said order passed in

W.A.No.601/2020 has attained finality and has become

conclusive and binding upon the BDA through whom the

respondent claimed to be in possession under the aforesaid

lease deed dated 04.11.2019. It is also pointed out that in

addition to resisting the suit of the appellant - plaintiff, the

respondent - defendant disputed the identity and location of

the plaint schedule property and in fact has given the separate

schedule in respect of the property leased in its favour by

describing same as the written statement schedule property.

It is therefore submitted by the learned senior counsel

for the appellant that since there exists a serious dispute with

regard to identity and location of the plaint schedule property

as described in the plaint as against the description of the

written statement schedule property, the trial court committed

a serious error of law and jurisdiction in rejecting the

application I.A.1 filed by the appellant and the same calls for

an interference in the present appeal.

4. Per contra, learned counsel for the respondent -

Corporation in addition to reiterating the various contentions

put forth in the statement of objections, the written statement

and the pleadings filed before the trial court, would support the

impugned order interalia contending that since the suit was

one for permanent injunction simplicitor, which was not

maintainable in law, the question of passing any interim order

in favour of the appellant does not arise. It is also submitted

that the respondent - defendant was not a party to the earlier

proceedings between the appellant and the BDA, the same is

not binding upon the respondent who has absolutely no

knowledge about those proceedings and the respondent

cannot be made a victim of the various orders passed in those

proceedings. It is submitted that the trial court came to the

correct conclusion that the plaintiff has not made out prima-

facie case for grant of temporary injunction and consequently,

the impugned order does not warrant interference by this

Court in the present appeal, which is liable to be dismissed.

5. I have given my anxious consideration to the rival

submissions and perused the material on record.

6. Though several contentions have been urged by both

sides in support of their respective claims and a perusal of the

earlier proceedings in W.P.Nos.35143-147/2019,

W.A.No.601/2020 as well as the different descriptions of the

properties as described in the plaint schedule and the written

statement schedule as stated by both the appellant and

respondent and other material on record will clearly indicate

that there exists a serious dispute with regard to location and

identity of the disputed property claimed by both sides as

plaint schedule property and written statement schedule

property respectively. Under these circumstances, without

expressing any opinion on the merits / demerits of the rival

contentions and in the light of the decision of the Apex Court

in the case of Rahul S Shah vs. Jinendrakumar Gandhi -

AIR 2021 SC 2161, I deem it just and appropriate to dispose

of this appeal by directing the trial court to dispose of the suit

with a stipulated timeframe and by issuing certain directions.

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

ORDER

(i) Appeal is hereby disposed of.

(ii) The impugned order dated 23.04.2021 passed on

I.A.No.1 in O.S.No.2087/2021 on the file of 19 th Addl. City Civil

and Sessions Judge, Bengaluru, is hereby modified by issuing

the following directions to the trial Court:-

(a) The trial Court is directed to appoint both

jurisdictional ADLR and the jurisdictional BDA surveyor as

Court Commissioners to conduct the joint survey / local

inspection of the plaint schedule property and written

statement schedule property and submit their report after

giving due notice to all the parties.

(b) Parties are directed to appear before the trial

Court on 09.07.2021 by getting the case pre-poned /

advanced to that date.

(c) On 09.07.2021, the trial Court is directed to

appoint the jurisdictional ADLR along with the BDA

surveyor as Joint Court Commissioners as stated supra for

the purpose of conducting joint survey / local inspection of

the plaint schedule property and written statement

schedule property involved in O.S.No.2087/2021; the trial

Court shall direct the Court Commissioners to submit their

report as expeditiously as possible and within a period of

four weeks from 09.07.2021.

(d) Local inspection / joint survey of the plaint

schedule property shall be conducted in presence of both

parties or their representatives.

(e) The parties are at liberty to file Memo of

Instructions to the Court Commissioners.

(f) Immediately after receipt of the report of the Court

Commissioners, the trial Court is directed to take up the

matter on merits and after permitting the parties to adduce

oral and documentary evidence, dispose of the suit on or

before 30.10.2021 without being influenced by the findings

and observations made by the trial court in the impugned

order.

(g) Having regard to the fact that there exists a

serious dispute with regard to the location and identity of

the properties claimed and described in the plaint schedule

and the written statement schedule, the parties are directed

to maintain status-quo with regard to nature and character

of the disputed property till the disposal of the suit.

(h) All rival contentions between the parties are

hereby kept open and no opinion is expressed on the

same.

Sd/-

JUDGE

Srl.