Smt A Vinovathi Bai vs Sri M Jayaram
2022 Latest Caselaw 10856 Kant

                            -1-



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JULY, 2022

                          BEFORE

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

     MISCELLANEOUS FIRST APPEAL NO.3636/2022 (CPC)

BETWEEN:

1.   SMT A. VINOVATHI BAI
     AGED ABOUT 63 YEARS,
     W/O LATE ARJUN RAO,

2.   SMT. PARVATHI BAI
     AGED ABOUT 45 YEARS,
     W/O B DEVENDRAN,

3.   SRI A. BABU RAO
     AGED ABOUT 43 YEARS,
     S/O LATE ARJUN RAO,

4.   SRI A. GUNDU RAO
     AGED ABOUT 41 YEARS,
     S/O LATE S. ARJUN RAO,

5.   SMT. YAMUNA BAI
     AGED ABOUT 40 YEARS,
     W/O SHANKAR RAO,

6.   A SURESH BABU
     AGED ABOUT 39 YEARS,
     S/O LATE ARJUN RAO,

7.   SMT SUNITHA BAI
     AGED ABOUT 32 YEARS,
     W/O SANTHOSH N,
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8.     SMT SONIYA BAI
       AGED ABOUT 30 YEARS,
       W/O VINOD KUMAR,

       ALL R/AT NO.4 NEW NO.16/1
       NALA ROAD, 5TH B CROSS
       ANEPALYA, ADUGUDI POST
       BENGALURU - 560 030

9.     MR. RAJA RAO
       S/O S ARJUN RAO
       AGED ABOUT 44 YEARS
       BOTH ARE R/AT NO.4,
       NEW NO.16/1, NALA ROAD,
       5TH B CROSS, ANEPALYA,
       ADUGUDI POST
       BENGALURU - 560 030.
                                       ... APPELLANTS

(BY SRI. ARUN ASHOK GADAG, ADVOCATE)

AND:

1.     SRI M. JAYARAM
       S/O LATE MUNIYELLAPPA
       AGED ABOUT 84 YEARS
       R/AT NO. 5/3, GAJENDRA NAGAR,
       ADUGODI POST
       BENGALURU - 560 030.

2.     DR. J. SREENIVAS
       D/O M. JAYARAM
       AGED ABOUT 50 YEARS
       R/A NO.19, 9TH CROSS
       GAJENDRA NAGAR
       ADUGODI POST
       BENGALURU - 560 030.

3.     BRUHAT BENGALURU
       MAHANAGARA PALIKE
                                -3-



        CORPORATION CIRCLE
        BENGALURU-560002
        REPRESENTED BY COMMISSIONER.
                                   ... RESPONDENTS

(BY SRI.V.B. SHIVAKUMAR, ADVOCATE FOR C/R1-2)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE
ORDER DATED 26.03.2022 PASSED ON I.A. NO.1 IN
O.S.NO.2770/2020 ON THE FILE OF THE XXV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH NO. 23), DISMISSING THE I.A. NO.1 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.

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

                         JUDGMENT

This appeal is by the plaintiffs in O.S.

No.2770/2020 on the file of the XXV Additional City

Civil and Sessions Judge, Bengaluru [for short, 'the civil

Court']. The civil Court by the impugned common order

dated 26.03.2022 has rejected the appellants'

application [I.A. No.1] under Order XXXIX Rules 1 and 2

of the Code of Civil Procedure, 1908 [for short, 'the

CPC'] but certain other applications, including the

application for amendment of the plaint, are allowed.

The appellants' suit, even as originally filed, was

for mandatory injunction against the respondents to

remove the alleged illegal structure put up in the plaint

schedule-B property which is described by the

appellants as conservancy lane. The appellants, with

the commencement of the suit, have filed the

application [I.A. No.1] for temporary injunction against

the first and second respondents from constructing or

putting up any structure in the schedule-B property.

The appellants have later amended the plaint to include

the prayer for declaration that the Judgment and decree

in O.S. No.10830/2006 [earlier suit between the

appellants and the respondents] would not bind their

rights insofar as the schedule-B property.

It is undisputed that the respondents, who had

commenced the construction including the schedule-B

property even before the commencement of the suit,

have now almost completed the construction. If this

factum remains undisputed, the application would

indeed be rendered infructuous and in that event, no

interference can be called for in this appeal. If the

appellants succeed in the suit, the construction put up

on the subject property would have to take the

consequence of such decision.

The appeal stands disposed of accordingly.

SD/-

JUDGE

AN/-