T S Mallikarjuna vs K Setha Mahalakshmi
2022 Latest Caselaw 10798 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.5711/2021 (CPC)

BETWEEN:

T. S. MALLIKARJUNA
S/O T. SHIVARUDRAPPA
AGED ABOUT 56 YEARS
EXECUTIVE ENGINEER
PWD DIVISIONAL OFFICE
POONA BENGALURU ROAD
DAVANAGERE - 577 004.
                                         ... APPELLANT
(BY SRI. S V PRAKASH, ADVOCATE)

AND:

1.     K. SEETHA MAHALAKSHMI
       W/O K KRISHNAMURTHY
       AGED ABOUT 68 YEARS
       R/O D NO.2035, 2ND MAIN ROAD
       MCC A BLOCK
       DAVANAGERE - 577 004.

2.     VENKATA SUBBA RAO
       S/O K. KRISHNAMURTHY
       AGED ABOUT 50 YEARS
       R/O D NO.2035, 2ND MAIN ROAD
       MCC A BLOCK
       DAVANAGERE - 577 004.
                                    ... RESPONDENTS
(BY SRI. R. GOPAL, ADVOCATE FOR R1 & R2)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DATED 23.08.2021 PASSED ON IA
NO.1 AND IA NO.3 IN O.S.NO.20/2021 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE, JMFC,
DAVANAGERE, ALLOWING IA NO.1 FILED U/O.39 RULE 1
AND 2 OF CPC CONSEQUENTLY DISMISSING IA NO.3
FILED U/O.39 RULE 4 R/W SECTION 151 OF CPC.

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

                        JUDGMENT

The dispute in the suit in O.S.No.20/2021 on the

file of the Senior Civil Judge, Davanagere (for short, the

'civil Court') is between the owners of two neighboring

properties. There is no dispute that the appellant owns

Site No.77 in A Block, Jayanagara Extension,

Davanagere City and the first respondent owns Site

No.76 in the same layout. The civil Court, allowing the

respondents' application for temporary injunction, has

restrained the appellant from proceeding with the

construction in the site bearing Site No. 77.

2. Sri S.V. Prakash, the learned Counsel for the

appellant, submits that the civil Court, even before

considering the respondents' application for injunction,

has appointed a Court Commissioner to visit the

properties and file a report and such report is also

placed on record. This report would indicate that the

appellant indeed owns and is in possession of site No.

77 measuring 40 feet x 60 feet and though the

respondents also have title to other site in No. 76

measuring 40 feet x 60 feet, they have lost about 14 feet

on the southern side of the road with the formation of a

road which is not contemplated in the sanctioned plan.

The owner of the Site No.75, who had to lose the land

because of the road that is formed, has encroached

such 14 feet in Site No. 76 to make up the loss.

3. Sri R. Gopal, the learned counsel for the

respondents, submits that the Commissioner's Report is

indeed filed, but the respondents have filed their

detailed objections inter alia pointing out that the road

referred to by the Commissioner is not part of the same

layout, but is part of the Layout formed in the adjacent

land. The owner of the site No.75 has not encroached

any portion. He also contends that the Commissioner

has deliberately not complied with the Memo of

instructions and as such, the civil Court, at the

instance of the respondents, has issued summons to

the Commissioner. The Court Commissioner will be

cross examined to point out material defects in the

Report.

4. These rival claims, based on the

Commissioner's Report, must be tested after the Court

Commissioner is cross-examined. It is undisputed that

the Court has issued summons to the Commissioner to

tender himself for cross-examination. This Court would

opine that with the Commissioner's Report being

tentative even as of the date with the Commissioner's

cross-examination pending, there cannot be interference

with the impugned order.

5. However, Sri. S.V. Prakash submits that the

appellant has followed law in commencement of the

construction; he has only three years of service; if the

construction is not completed, he would be put to

irreparable injury. Sri R. Gopal, when these

submissions are made, submits that the respondents'

evidence with the cross-examination of the

Commissioner will be complete and the entire suit could

be disposed of within a time frame. In response, Sri S.

V. Prakash does not object to the same, but submits

that if in the event the decision in the suit is delayed,

the appellant would be put to irreparable loss.

6. These circumstances are considered, and

this Court is of the view that the appeal must be

disposed of calling upon the parties to co-operate with

the civil Court in the disposal of the suit on merits by

the end of October 2022. If for any reason the final

decision in the suit is delayed, the appellant must have

the liberty to seek modification of the impugned order in

the light of the fresh material that is brought on record

either by way of further evidence by the appellant or the

respondents, or the cross-examination of the

Commissioner.

For the foregoing, the appeal stands disposed of

calling upon the civil Court to dispose of the suit by the

end of October 2022 if the parties co-operate, and if the

suit is not disposed of by then, the appellant shall be at

liberty as mentioned above.

SD/-

JUDGE

nv