Karnataka High Court
Deepak S/O Chandrakantsa Baddi vs Hasmukh S/O Krishnasa Habib on 14 March, 2022
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.102439/2019 (CPC)
BETWEEN:
1. DEEPAK S/O CHANDRAKANTSA BADDI,
AGE:ABOUT 34 YEARS, OCC:BUSINESS,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
2. SRIKANT S/O CHADRAKANTSA BADDI,
AGE:ABOUT 28 YEARS, OCC:BUSINESS,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
... APPELLANTS
(BY SHRI VINOD SHANKAR PAWAR, ADV.)
AND:
1. HASMUKH S/O KRISHNASA HABIB,
AGE:ABOUT 65 YEARS,
OCC:PHOTOGRAPHER,
R/O BEHIND KSHATRIYA STUDIO,
KOPPIKAR ROAD, HUBBALLI 28.
2. JITENDRA S/O BHIHARILAL SHAH,
AGE:ABOUT 75 YEARS, OCC:BUSINESS,
R/O 4-B, PARSHVA DARSHAN,
CHSI, CHANDAVARKAR ROAD,
BOREVELI (WEST), MUMBAI.
3. KIRAN S/O BHIHARILAL SHAH,
AGE:ABOUT 68 YEARS, OCC:RETIRED,
R/O 102, TORAL APARTMENTS,
KESHWAPUR, HUBBALLI 580023.
4. KUNAL S/O JEETENDRA SHAH,
AGE:ABOUT 33 YEARS, OCC:PRIVATE JOB,
:2:
R/O 4-B, PARSHVA DARSHAN,
CHSI, CHANDAVARKAR ROAD,
BOREVELI (WEST), MUMBAI.
5. BHAVIN S/O KIRAN SHAH,
AGE:ABOUT 37 YEARS,
OCC:PRIVATE JOB,
R/O 35/10, 2ND FLOOR,
LAXMI ROAD, 5TH CROSS,
SHANTI NAGAR, BANGALORE. ... RESPONDENTS
(BY SHRI DINESH M.KULKARNI, ADV. FOR R1,
R2- DISPENSED WITH)
THIS MFA FILED U/O.43 RULE 1(r) OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED:27.04.2019,
PASSED IN O.S.NO.94/2019 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, ALLOWING THE
IA NO.2 FILED U/O. 39 RULE 1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In a suit for declaration, partition and permanent
injunction, the trial Court on the application filed by the
plaintiff, has injuncted defendants 5 and 6 from
constructing or erecting any structure or building by
dismantling the existing portion of the suit property, until
the final disposal of the suit.
2. The 5th and 6th defendants are in appeal
principally contending that this interim order is being
utilized by the plaintiff to contend that they should not
undertake any repairs or renovations.
3. The learned counsel for the appellants has filed
an affidavit in the form of undertaking in which it is stated
as follows:
"4. That first of all I am not going to
dismantle or construct or erect any structure or
building in the suit property.
5. I will carry out repairs of both walls by
plastering with cement without causing damage
to the walls.
6. I will carry out painting work of entire
shop. I will change shutters of my shop since
the existing shutter is damaged without causing
any damage to the building more particularly
first floor.
7. I will carry out electric work of the
building without causing damage to any walls.
8. I will carry out the work of flooring by
putting tiles of my floor and put name board of
my shop outside the shop.
9. Further, I will put a zinc sheet roof behind
my shop in as it is open to sky and I will not
cause any damage to the walls and if at all in
spite of my due diligence if any damage is
caused, I will undertake to get it repaired out of
my own cost and expenses. Hence this
undertaking in the form of affidavit".
4. Learned counsel submits that the appellants
have categorically undertaken not to dismantle or to
construct any structure or build in the suit property as
ordered by the trial Court and in view of the undertaking,
they may be permitted to carry out repairs of both walls by
plastering them with cement so as to prevent damage to
the walls. He submits that painting the entire shop and
changing the shutters of the shop may be permitted, since
the existing shutter is damaged and this would not cause
any structural alteration to the building.
5. He also states that the electric work is required
to be carried out and that he shall carry out the same
without causing any damage to the walls. Lastly, he
submits that the erection of zinc sheet roof behind the
shop would not amount to erecting a structure since that
zinc sheet is being put up in that portion of the structure
which is open to sky.
6. Learned counsel also submits that the floor
existing in the shop is extremely old and he would replace
it and this would also not amount to any structural
alternation.
7. To this affidavit, a counter affidavit is filed by
the plaintiff stating that the appellants have already carried
out work of the inner walls and completed not only the
painting work but also replaced the floor tiles and have
also secured a new electricity connection. It is stated that
a complaint has been lodged against the illegal acts of the
appellants and also an application for violation of the order
of injunction.
8. This Court had appointed a Court
Commissioner to inspect the spot on 26.02.2022. The
Commissioner had inspected the premises and she has also
produced photographs of the structure.
9. She has stated that the repair work had not
been done and the shop needed plastering, painting,
flooring, proper electricity wiring and proper water
connection. She has also stated that the premises requires
the rear portion of the shop to be covered, as the shop was
open to sky. She has also stated that the shutters are
damaged and the appellant could change the shelter
without causing damage to the building.
10. In view of the report of the Commissioner, the
appellants are permitted to do the following works:
a. Carry out the plastering of both walls
with cement without causing any damage
to the walls;
b. Carry out painting of the entire shop;
c. Change the shatters of the shop without
causing any damage to the building'
d. Carry out necessary electrical works
without causing any damage to the walls;
e. Carry out the work of flooring by putting
tiles and also by erecting the name board
outside the shop; and lastly
f. To put a zinc sheet roof behind the shop.
11. The appellants are directed not to dismantle or
construct or erect any structure or building in the suit
property, as ordered by the trial Court while carrying out
the above works.
12. The appeal is accordingly disposed off,
recording the undertaking of the appellants.
13. Having regard to the nature of litigation
between the parties and the subject matter of the suit, it
would be necessary to request the trial Court to ensure
that the suit is disposed off as expeditiously as possible at
any rate within a period of one year subject to both the
parties cooperating with the Court.
14. Both the learned counsel undertake before me
that they will cooperate with the Court and ensure its
disposal within a period of one year.
(Sd/-)
JUDGE
Jm/parag rap hs 1 to 6
Vnp/p arag raphs 7 till end
