Smt Muddamma vs Smt Kempamma
2022 Latest Caselaw 3698 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 04TH DAY OF MARCH, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

        WRIT PETITION NO.2721 OF 2022 (GM-CPC)


BETWEEN

SMT MUDDAMMA
W/O PUTTASIDDEGOWDA
AGED ABOUT 41 YEARS
R/AT AMRUTHESHWARANAHALLI
VILLAGE KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571 430

                                             ...PETITIONER
(BY SRI CHANDRASHEKAR H B, ADVOCATE)

AND

1.    SMT KEMPAMMA
      W/O PUTTASWAMYGOWDA
      AGED ABOUT 39 YEARS

2.    M D NAVEENA
      S/O LATE A C DODDERAIAH
      AGED ABOUT 37 YEARS

3.    SMT SAVITHRAMMA
      W/O LATE A C DODDEERAIAH
      AGED ABOUT 57 YEARS

4.    M D RAMACHANDRA
      W/O LATE A C DODDEERAIAH
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     AGED ABOUT 34 YEARS

     RESPONDENTS NO. 1 TO 4 ARE
     R/OF AMRUTHESHWARANAHALLI VILLAGE
     KASABA HOBLI
     MALAVALLI TALUK
     MANDYA DISTRICT - 571 430

5.   THE PANCHAYATH DEVELOPMENT OFFICER
     KANDEGALA GRAMA PANCHAYATH
     KANDEGALA
     KASABA HOBLI
     MALAVALLI TALUK
     MANDYA DISTRICT - 571 430

                                                 ....RESPONDENTS
(BY SRI S RAJESH, ADVOCATE FOR C/R1)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
ON I.A.NO.1 DATED 17TH SEPTEMBER, 2019 IN O.S.NO.133 OF 2019
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, MALAVALLI AND
JUDGMENT IN M.A.NO.11 OF 2019 DATED 06TH AUGUST, 2021
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI
PRODUCED VIDE ANNEXURE-C AND D AND CONSEQUENTLY DISMISS
THE APPLICATION I.A.NO.1 FILED UNDER ORDER 39 RULES 1 AND 2
R/W SECTION 151 OF CPC PRODUCED VIDE ANNEXURE-B.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This writ petition is filed by the defendant No.4 in OS No.

133 of 2019 on file of the Principal Civil Judge, (Jr.Dn) and JMFC

at Malavalli, challenging the order dated 17.09.2019, passed on

IA.I and the order dated 06.08.2021 passed in MA No.11 of 2019

by the Senior Civil Judge and JMFC, Malavalli.

2. It is the case of the petitioner that the respondent

No.1 herein has filed OS No.133 of 2019 against the defendants

before the Trial Court, seeking relief of mandatory injunction

with consequential relief of permanent injunction. The plaint

averments further state that the plaintiff has filed OS No.322 of

2017 before the Additional Civil Judge and JMFC, Malavalli,

seeking relief of specific performance of contract in respect of 'A'

schedule property and the said suit came to be decreed on

25.08.2018 and therefore, the plaintiff has filed Execution

Petition No.100 of 2018 and said Execution Petition is pending

consideration before the Trial Court. In the meanwhile, the

plaintiff has filed OS No.133 of 2019 seeking mandatory

injunction and other consequential relief and in the said suit,

plaintiff has filed application under Order 39 Rules 1 and 2 read

with Section 151 of Code of Civil Procedure and the said

application was resisted by defendant No.4 by filing objections.

3. The Trial Court after considering the material on

record, by its order dated 17.09.2019, allowed IA.I filed by the

plaintiff and as such, defendant No.4 was restrained from putting

up construction over suit 'B' schedule property. The said order

passed by the Trial Court, was challenged in MA No. 11 of 2019

on the file of the Senior Civil Judge and JMFC at Malavalli and

the said appeal was resisted by the plaintiff. The First Appellate

Court, after considering material on record, by its order dated

06.08.2021, dismissed the appeal filed by the petitioner herein,

consequently, confirmed the order dated 17.09.2019 passed by

the Trial Court on IA.I in OS No.133 of 2019. Being aggrieved by

the same, defendant No.4 has presented this appeal.

4. I have heard Sri Chandrashekar H.B., learned

counsel appearing for the petitioner and Sri S. Rajesh, learned

counsel appearing for the respondent/caveator.

5. Sri Chandrashekar, learned counsel appearing for the

petitioner contended that both the courts below have not

considered the fact that the title of the plaintiff has to be

considered in the Execution Petition No.100 of 2018 and till the

completion of the proceedings before the Execution Court, the

plaintiff has no right to seek temporary injunction against the

defendant No.4.

6. Per contra, Sri. S.Rajesh, learned counsel appearing

for the respondent/caveator sought to justify the impugned

order.

7. Having heard the learned counsel appearing for the

parties, I have carefully considered the finding recorded by the

Trial Court, wherein, the Trial Court has come to a conclusion

that the plaintiff has placed sufficient material before the Trial

Court which requires determination in trial and as such, granted

temporary injunction is granted to aid the main relief in the suit.

Undisputedly, the suit filed by the plaintiff in OS No.322 of 2017

was decreed on 25.08.2018. In that view of the matter, I am of

the view that, the Trial Court is justified in granting temporary

injunction against defendant No.4. I have also carefully noticed

the impugned order passed by the First Appellate Court,

wherein, the First Appellate Court, after appreciating the finding

recorded by the Trial Court had come to a conclusion that the

plaintiff has made out a prima-facie case in her favour and

observed that, balance of convenience and irreparable loss be

caused to the plaintiff if, IA.I is rejected at the threshold and in

that view of the matter, both the courts below have concurrently

held against defendant No.4 on IA.I. By exercising jurisdiction

under Article 227 of the Constitution of India, I am of the view

that interference is very limited. Accordingly, writ petition is

dismissed as devoid of merits.

Sd/-

JUDGE

SB