Karnataka High Court

Smt. Gowramma vs Sri. Gavigowda on 5 January, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JANUARY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.21369 OF 2021 (GM-CPC)

BETWEEN:

1 . SMT. GOWRAMMA
    S/O LATE RAMAIAH
    AGED ABOUT 60 YEARS,

2 . SRI B R ANIL KUMAR
    S/O LATE RAMAIAH
    AGED ABOUT 41 YEARS,

3 . SRI B R SUNIL KUMAR
    S/O LATE RAMAIAH
    AGED ABOUT 44 YEARS,

     ALL ARE R/O CHUNCHEGOWDANA DODDI
     BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT - 577 003.
                                   ...PETITIONERS

(BY SRI. PRABHULING K. NAVADGI, SR. COUNSEL FOR
    SMT. POONAM S. PATIL, ADVOCATE)

AND:

1.   SRI. GAVIGOWDA
     S/O LATE MADAKEHULI LINGAIAH
                         2




     AGED ABOUT 56 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

2.   SRI B L NAGARAJU
     S/O LATE PATEL LINGAIAH
     AGED ABOUT 61 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

3.   SMT G S VISHALAKSHI
     W/O LATE JAYANNA
     AGED ABOUT 40 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

4.   KUM. BHOOMIKA
     D/O LATE JAYANNA
     AGED ABOUT 22 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

5.   SRI NAGALINGAIAH
     S/O LINGAIAH
     AGED ABOUT 56 YEARS
     R/AT KONASALE VILLAGE
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003
                        3




6.   SMT GOWRAMMA
     W/O LATE CHIKKANNA
     AGED ABOUT 70 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

7.   SRI. RAJU
     S/O LATE CHIKKANNA
     AGED ABOUT 30 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

8.   SRI CHUNCHEGOWDA
     S/O LATE CHUNCHEGOWDA
     AGED ABOUT 66 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

9.   SRI B S KRISHNA
     S/O LATE CHIKKASHAMBUGOWDA
     AGED ABOUT 68 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

10 . SRI B S SHIVANNA
     S/O LATE CHIKKASHAMBUGOWDA
     AGED ABOUT 61 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI,
                        4




    MADDUR TALUK
    MANDYA DISTRICT-577003.

11 . THE SECRETARY
     BESAGARAHALLI GRAMAPANCHAYATH
     BESAGARAHALLI VILLAGE
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003

12 . SMT J SAMYUKTHA
     W/O SHANKAR
     AGED ABOUT 46 YEARS
     R/AT NEAR MARUTHI TEMPLE
     MARUTHI NAGARA, NAGARABHAVI
     BENGALURU-560072

13 . SMT J GUNASHREE
     W/O HARSHA
     AGED ABOUT 41 YEARS,
     R/AT NEAR MARUTHI TEMPLE
     MARUTHI NAGARA, NAGARABHAVI
     BENGALURU-560 072

14 . SRI C KRISHNA
     S/O LATE CHIKKANNA
     AGED ABOUT 46 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

15 . PARVATHI
     D/O LATE CHIKKANNA
     AGED ABOUT 44 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.
                          5




16 . SMT YASHODHA
     W/O RAJU
     AGED ABOUT 42 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.

17 . VISHALAKSHI
     D/O CHIKKANNA
     AGED ABOUT 40 YEARS,
     R/AT CHUNCHEGOWDANADODDI VILLAGE
     HAMLET OF BESAGARAHALLI POST
     KOPPA HOBLI, MADDUR TALUK
     MANDYA DISTRICT-577003.
                                  ...RESPONDENTS

(BY SRI. K.N. NITISH, ADVOCATE FOR
    SRI. K.V. NARASIMHAN, ADVOCATE FOR R-1 TO R-8)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE     CONSTITUTION     OF INDIA PRAYING TO
QUASH THE ORDER DTD.6.11.2021 PASSED BY THE
SENOR CIVIL JUDGE MADDUR ON INTERLOCUTORY
APPLICATION NO.3 IN R. A. NO. 45/2021 VIDE
ANNEXURE-A.

     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:


                    ORDER

The petitioners being aggrieved by the order

dated 06.11.2021, passed on I.A.No.3 in R.A.No.

45/2021 by the Senior Civil Judge, Maddur, have filed

this writ petition.

Petitioners are the defendant Nos.1(a), 1(b) &

1(c) and respondents are the plaintiffs and other

defendants before the Trial Court. Parties are referred

to as per their ranking before the Trial Court.

2. Brief facts leading rise to filing of this petition

are as under:

Plaintiffs filed a suit in O.S.No.236/2010 before

the Civil Judge (Jr.Dn.), Maddur against the

defendants in representative capacity seeking for the

relief of declaration and injunction alleging that the

suit schedule property is a road wherein plaintiffs and

other persons in the village have right of thoroughfare

over the suit property and sought for mandatory

injunction directing the defendants to remove the

temporary cattle shed put up allegedly in the middle

of the suit schedule property.

Plaintiffs filed an application before the Trial

Court in I.A.No.17 restraining the defendants from

putting up construction in the suit schedule property.

The Trial Court allowed the said application vide order

dated 05.02.2021, by passing a conditional order

directing the plaintiffs to conclude their trial by the

end of February 2021 and defendants to conclude

their part of evidence by 15.03.2021 and in the event

of plaintiffs failing to comply the order, the interim

order was directed to be automatically vacated.

Defendant Nos.1 to 3 filed an application in

I.A.No.25 seeking discharge of interim order of

injunction. Trial Court allowed the said application

and restrained the defendants from putting up further

construction. Plaintiffs preferred a Miscellaneous

Appeal in M.A.No.1/2021 before the Vacation Court,

Mandya. The Vacation Court granted interim stay.

Defendants 1(a) to 1(c) filed a writ petition in

W.P.No.9680/2021 challenging the interim order of

stay passed in M.A.No.1/2021. This court vide order

dated 23.07.2021, disposed of the writ petition

directing the Trial Court to dispose of the suit within a

period of 45 days. In compliance of the order passed

by this court, the Trial Court disposed of the suit on

14.09.2021. Defendant Nos.1(a) to 1(c), 2 and 3

being aggrieved by the judgment and decree passed

by the Trial Court, preferred an appeal in

R.A.No.3/2021. In the said appeal, plaintiffs have

filed an application in I.A.No.3 under Section 151 of

CPC to restrain the defendants from putting up further

construction. The Appellate Court has allowed the

application vide order dated 06.11.2021, and

restrained defendant Nos.1(a) to 1(c), 2 and 3 from

putting up further construction. Being aggrieved by

the order passed by the Appellate Court, defendant

Nos.1(a) to 1(c) have filed this writ petition.

3. Heard Sri. Prabhuling K. Navadgi, learned

Senior counsel for the petitioners and Sri. K.N.Nitish,

for Sri. K.V.Narasimhan, learned counsel for the

respondents No.1 to 8.

4. Learned Senior counsel for the petitioners

submits that if permitted, petitioners would complete

the construction which is near completion and the

same would be subject to the result of the appeal

before the Appellate Court, without claiming any

equity in the event there is an adverse order. He

further submits that petitioner No.1 has filed an

affidavit before this court stating the said fact. Hence

he submits that in case the petitioner fails in the

appeal, the petitioners will demolish the building at

their own cost. Hence on these grounds, he submits

that if the petitioners are permitted to complete the

construction, no injustice would be caused to the

respondents, and prays to allow the writ petition.

5. Per contra, learned counsel for the

respondents submits that the petitioners have given

the same undertaking before the Trial Court and the

Trial Court has rejected the said undertaking. He

submits that the Appellate Court was justified in

passing the impugned order. Hence prays to dismiss

the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the petitioners are

constructing residential building in the suit schedule

property. The petitioners have also produced

photographs to show that they have completed

substantial portion of construction work. Further the

suit filed by the plaintiffs came to be decreed. The

execution and operation of the said judgment and

decree passed in the said suit came to be stayed in

R.A.No.45/2021. The plaintiffs have filed an

application restraining defendants from putting up any

construction notwithstanding the fact that the

petitioners herein have completed substantial portion

of the construction work. Further, the petitioners

have already filed an undertaking that they will not

claim any equity in the event they fail in the appeal.

Same is already taken on record. I find it appropriate

to place reliance on the judgment of the Hon'ble Apex

Court in case of ECE INDUSTRIES LIMITED V/S

S.P.REAL ESTATE DEVELOPERS P.LTD., reported in

(2009) 12 SCC 776, wherein Hon'ble Apex Court has

held as under:

"26. It is well settled that when construction has been made on a land, which is

of considerable magnitude, and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment/deposit of the entire amount payable by the defendant to the plaintiff under the agreement, though belatedly, we are of the view that the Court will not, as a matter of course, pass an order of injunction against the other party restraining the other party from raising any construction on the suit property till the disposal of the suit.

27. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the defendants/respondents may be directed to pull down the construction and deliver vacant possession to the plaintiff/appellant when no equity can be claimed for such construction by the respondents-defendants.

28. On the other hand, in our view, if at this stage, an order of injunction is granted against the respondents-defendants from proceeding with further construction in the suit property, it will undoubtedly destroy the construction already made by the respondents-

defendants and the respondents-defendants will suffer irreparable loss and injury for not allowing them to make construction on the suit property."

8. Further I would like to place reliance on the

judgment of Hon'ble High Court of Orissa in the case

of SURENDRA MOHARANA VS. RAJKISHORE MOHARANA &

OTHERS [2015 (II) OLR 378], wherein Hon'ble High

Court of Orissa has reiterated the law laid down by the

Hon'ble Apex Court in ECE INDUSTRIES LIMITED (SUPRA),

as under:-

"10. In the present case the petitioner has filed an undertaking not to claim any equity in respect of any construction made over the land merely on the basis of construction in case the suit is decreed and partition is allowed. The present petitioner will suffer substantial injury if construction work is stopped as he has invested money and obtained permission for construction. It is well settled that when construction has been made on a land and when the applicant shall not face any substantial injury if order of Injunction is

granted as an undertaking furnished not to claim any equity for such construction by the defendants if ultimately the suit filed is decreed the party can be compensated any damages or the defendants may be directed to pull down the construction and deliver vacant possession to the applicant for injunction. In such a situation, an order of injunction if granted against the defendants from proceeding with further construction in the suit property it will undoubtedly destroy the constructions already made by and he will suffer irreparable loss and injury for not allowing him to make such construction as such balance of convenience in his favour.

Being a co-sharer he has a prima facie case as parties have already dealt with the property separately pursuing to the amicable settlement. Hence the impugned orders passed by the courts below are error apparent on the face of the record. The aforesaid view also fortified taking into consideration the decision of the Apex Court in the case of ECS INDUSTRIES LIMITED VS. S.P.REAL ESTATE DEVELOPERS P. LTD. & ANR., reported in MANU/SC-1377/2009: JT 2009 (11) SC 30.

11. In view of the discussion made herein above and considering the aforesaid settled position this court sets aside the impugned orders in exercising the jurisdiction under Article 227 of the Constitution of India. Liberty is granted to the petitioner to complete the construction over the part of suit schedule 'C' land which was allotted to his share with a mark of 'A' portion in the sketch map appended to the interim application in view of the undertaking furnished by him."

9. The above principles can be applied in the

instant case also since the appellant had constructed

upto a certain stage by the time suit came to be

disposed of by the trial court. In view of the same,

even if the petitioners are permitted to complete the

construction, no injustice would be caused to the

respondents. The respondents have not made out

prima facie case. It cannot be said that balance of

convenience lies in favour of respondents that he

has right to seek the construction undertaken

by the petitioners to be stopped. In view of

undertaking filed by the petitioners, the Appellate

Court has not exercised discretion properly for

granting injunction against the petitioners.

10. In view of the above discussion, the

impugned order passed by the Appellate Court is

arbitrary and same is liable to be set aside.

Accordingly, I proceed to pass the following:

ORDER

The writ petition is allowed.

The impugned order passed by the Appellate Court is set aside. I.A.No.3 is rejected. However, it is made clear that in case if the petitioners fail in the appeal, the petitioners are directed to demolish the building at their own cost as per the undertaking filed by them.