Smt Shruthi S Kumar vs Srinivas Murthy
2022 Latest Caselaw 8698 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE, 2022


                        BEFORE

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

     MISCELLANEOUS FIRST APPEAL NO.2675/2022 (CPC)

BETWEEN:
SMT SHRUTHI S KUMAR
W/O RAJU, AGED ABOUT 31 YEARS,
R/AT NO.382, 21ST CROSS
1ST AND 3RD BLOCK,
EAST JAYANAGAR,
BANGALORE - 560 094.
                                    ... APPELLANT
(BY SRI. M B CHANDRACHOODA, ADVOCATE)

AND:

1.     SRINIVAS MURTHY
       S/O LATE VENKATASWAMY,
       AGED ABOUT 41 YEARS,

2.     SHANKAR
       S/O LATE VENKATASWAMY,
       AGED ABOUT 38 YEARS,

3.     GANGAMMA
       D/O LATE VENKATASWAMY,
       AGED ABOUT 45 YEARS,

4.     JAYAMMA
       D/O LATE VENKATASWAMY,
       AGED ABOUT 41 YEARS,

5.     GANGAMMA
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     D/O LATE VENKATASWAMY,
     AGED ABOUT 30 YEARS,

     THE RESPONDENTS NO. 1 TO 5 ARE
     RESIDING AT NO.212,
     BOVI COLONY SHANKAR NAGAR POST,
     5TH CROSS, MARIYAPPANA PALYA,
     JNANABHARATHI,
     BENGALURU - 560 091.

6.   SOMU H
     S/O LATE H.T. MADAPPA,
     AGED ABOUT 60 YEARS,
     R/AT NO.93/21, SRINIDHI NILAYA,
     MARIYAPPANAPALYA,
     JNANABHARATHI LAYOUT,
     BANGALORE - 560 056.

                                       ... RESPONDENTS
(BY SRI.SHARATH S. GOWDA, ADVOCATE)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE
ORDER DATED 18.02.2022 PASSED ON I.A. NO. 7 IN
O.S.NO. 25248/2019 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH.22), REJECTING THE
APPLICATION FILED UNDER ORDER 39 RULES 1 AND 2 OF
CPC.

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

                     JUDGMENT

This is the second round of litigation before this

Court on an application filed under Order XXXIX Rule 1

and 2 of CPC between the parties to the suit in

O.S.No.25248/2019 on the file of the XIII Additional

City Civil Judge, Bangalore (for short, 'the civil Court').

2. At the first instance, the civil Court by its

order dated 27.04.2019 vacated the ex-parte interim

order granted in favour of the appellant-plaintiff

restraining the respondents-defendants from interfering

with the appellant's possession of the residential site

identified as bearing No.37 of Gavipuram extension,

HSBS Layout, Mallathalli village, Yeshwanthpur Hobli,

Bangalore North Taluk (the suit schedule property,

which is referred to as the subject property). The

appellant impugned the civil Court's order dated

27.04.2019 before this Court in MFA No.3775-3777 of

2019. The other appeal in MFA No.3777/2019 is

because the respondents' application for vacating the

interim order was allowed.

3. This Court has considered these two appeals

along with similar appeals but between third parties,

and this Court has ultimately disposed of these appeals

by the order dated 26.07.2019 which reads as under:

"(ii) The impugned orders are modified.

(iii) The plaintiffs and the defendants are directed to maintain status quo with respect to nature of the suit properties till disposal of the suits.

(iv) The defendants are directed to file an affidavit within four weeks from today undertaking to compensate the plaintiffs for the loss that they may suffer on account of stoppage of construction. The affidavits shall be filed before the trial court.."

This Court has directed the parties to maintain status

quo because the writ appeals in WA 2792/2018

connected with Writ Appeal No.4434/2016 were

pending consideration. In fact, this Court has recorded

that the decision in writ appeal will be the deciding

factor. After this Court's order, the aforesaid writ

appeals are decided by a Division Bench of this Court

on 28.05.2021. The Division Bench has restored the

acquisition proceedings in favour of the House Building

Co-operative Society under whom the appellant claims

title to the subject property with liberties to the

purchasers of certain sites in Sy.No.93 (Old No.26/14)

of Nagadevanahalli village, Yeshwanthpur Hobli,

Bangalore North Taluk. It is stated at the bar that

certain persons have carried the Division Bench's order

in Special Leave Petitions before the Hon'ble Supreme

Court and these Special Leave Petitions are pending

consideration.

4. The appellant relying upon the subsequent

decision in the aforesaid writ appeals has filed the

present application for injunction against the

respondents who are admittedly owners of land in

Sy.No.42/68 of Mallathahalli village. The civil Court

has rejected this application primarily because this

Court, in disposing of the earlier appeals, has directed

the parties to maintain status quo. The civil Court's

reasoning reads as under:

"Aggrieved by the said order the plaintiff preferred appeal in MFA No.3775/2019 clubbed with MFA No.3777/2019 before the Hon'ble High Court of Karnataka, wherein Hon'ble High Court of Karnataka passed order and the said appeals were disposed off modifying the order passed by this Court and ordered that plaintiff and defendants are directed to maintain status-quo in respect to the nature of the suit schedule property till disposal of the suit and also directed the defendants to file affidavits within four weeks from the date of order under taking to compensate the plaintiff for the loss that they may suffer on account of stoppage of construction and affidavits shall be filed before the Trial Court. Thereafter on 14.08.2019 the defendants filed affidavit as directed in the above said MFA. Hence as per the direction of the Hon'ble High Court of Karnataka in MFA No. 3775/2019 dated 3777/2019 there is status quo relating to the suit schedule property and same shall be maintained by plaintiff and defendants. Even though the plaintiff filed the present application with similar

relief as claimed in IA No.1 for grant of temporary injunction restraining the defendants their representatives, servants, henchmen, etc., from interfering with the construction activities in the suit schedule property in any other manner. There is status-quo order granted by the Hon'ble High Court of Karnataka in the above said MFA and same shall be maintain by plaintiff and defendants. Hence another similar present application filed by the plaintiff with same relief in not proper. Therefore the plaintiff is not entitle for the relief claimed in the application. Hence I answer point No.1 in Negative. "

5. Sri M.B. Chandra Chooda, the learned

counsel for the appellant, without disputing that the

respondents have filed the undertaking Affidavit in

terms of this Court's order in the earlier appeals,

submits that this Court has directed the parties to

maintain status quo because of the pendency of the writ

appeals. But presently, the writ appeals are allowed

upholding the acquisition proceedings. The

respondents, who are the owners of Sy.No.42/68 of

Mallathahalli village, have not challenged the

acquisition proceedings and have accepted the Division

Bench's order. Once acquisition is upheld, the right of

the Society, and transfers by the Society, will prevail

and the previous owners cannot assert any rights.

Therefore, the application is well founded, and this

Court must intervene and modify the orders permitting

the appellant to commence construction in the subject

property which is brought to a standstill because of the

earlier order of Status Quo.

6. Sri Sharath B Gowda, the learned counsel

for the respondents, is unable to controvert the

assertion that none of the respondents [the original

owners of the land in Sy.No.42/68 of Mallathahalli

village] have challenged the acquisition proceedings and

the Division Bench's decision has attained finality

though he submits that one of these respondents, who

is also a purchaser of certain sites in Sy.No.93 of

Nagadevanahalli, has filed Special Leave Petition before

the Supreme Court impugning the Division Bench's

order as regards such sites.

7. Significantly, Sri Sharath B Gowda points

out that the appellant, who has chosen to withdraw the

earlier suit in O.S.No.839/2019 [which is filed on

31.01.2019] on 05.02.2019, has filed the present suit

on 13.02.2019 without disclosing the commencement of

this earlier suit or the request for withdrawal of the suit.

The appellant, acting under the shelter of the ex-parte

order granted by the civil Court in the present suit, has

commenced construction. He submits that the

appellant, who is enjoined in law to approach the Court

with clean hands being a plaintiff seeking temporary

injunction, would not be entitled for any intervention in

the present appeal.

8. Sri M.B.Chandra Chooda invites the

attention of this Court to the appellant's objections filed

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at the first instance in response to the respondents'

application under Order XXXIX Rule 1(a) CPC to

contend that the appellant has withdrawn the earlier

suit in O.S.No.839/2019 because of the bona fide

expectation that there would be a settlement between

the appellant and the respondents due to third party

intervention. He urges that this Court must examine

the appellant's withdrawal of the suit in

O.S.No.839/2019 in the light of this explanation and

must, because of the uncontroverted facts, intervene

and permit the appellant to commence construction.

9. It is settled that a person who invokes the

jurisdiction of a civil Court under Order XXXIX Rule 1

and 2 of CPC will have to necessarily satisfy the

requirements of prima facie case as also the balance of

convenience and irreparable hardship, and it is equally

settled that in addition it would be incumbent upon

such person to disclose all facts and circumstances and

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if there is violation of this salient feature that requires a

person seeking equity to be equitable, discretion will not

be exercised to grant temporary injunction. The Court

must refer to the decision of the Hon'ble Supreme Court

in Seema Arshad Zaheer v. Municipal Corporation

of Greater Bombay1 wherein it is held as follows:

"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

1 (2006) 5 Supreme Court Cases 282

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10. The appellant, who has withdrawn the suit

in O.S. No.839/2019, has not even mentioned about the

suit or the withdrawal of such suit much less offered

any explanation for immediate initiation of the present

suit. This Court will always frown upon the practice of

chance litigation; taking chance in commencing a

litigation for the sake interim order and if such order is

not granted withdrawing the suit and filing a new suit.

The appellant has indeed taken such chance. This

Court must record that it is undisputed that the

construction is commenced after the ex parte order by

the civil Court at the first instance. These observations

are only in the course of deciding the merits of the

appellant's application for temporary injunction and

cannot influence the final outcome of the suit.

11. This Court could dismiss the appeal without

further orders. But, on a holistic reading of the

circumstances including the fact that the appellant has

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commenced construction and this construction is

substantially complete, the parties must be called upon

to assist and co-operate with the civil Court in the

expeditious disposal of the suit. When queried Sri

M.B.Chandra Chooda, the learned counsel for the

appellant, submits that the appellant will complete her

side of evidence by the end of this month and will assist

and co-operate with the civil Court for expeditious

decision within a period of three months from the date

of next hearing. Sri Sharath B Gowda does not fall back

in assuring this Court that the respondents will also

assist and co-operate with the civil Court in expeditious

disposal. For the foregoing the following

ORDER

The appeal stands disposed of with the

observation that the terms of this Court's order in MFA

No.3775/2019 connected with MFA No.3777/2019 shall

continue to bind the parties and the civil Court shall

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expeditiously dispose of the suit in terms of the

following timeline. The appellant shall complete

evidence, including her cross-examination by the end of

July 2022 and the respondents' evidence shall be

completed by the end of August 2022 and the civil

Court shall dispose of the suit on merits by the end of

November 2022.

SD/-

JUDGE

nv