Karnataka High Court
Nagarathna vs Sri Kamakshi Prasanna Sri ... on 23 March, 2022
Bench: Sreenivas Harish Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23 R D DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MFA NO.2462 OF 2021 (CPC)
BETWEEN:
Nag arathna
W/o Late Poojari Purushotham S.R
Aged aobut 67 years
R/o Besid e Sri Doddamma
Jala Durg amma Temple
Hosamane Extension
Shivamogga-577 201.
...Appellant
(By Sri Umesh Moolimani, Advocate for
Sri S.V. Prakash, Ad vocate)
AND:
1. Sri Kamakshi Prasanna
Sri Dodd amma Jala Durg amma
Devalaya Samithi ®
Represented by its
General Secretary
Mr. Shi Du. SomashekaR
S/o Late S.R. Durg appa
Aged about 65 years
Banashankari Extension
Now called Hosaman Extension
Shivamogga-577 201.
2. S. Mukund a
S/o Late Sang ap pa .S
Aged about 63 years
R/o Sri Kamakshi Prasanna
Sri Dooddamma Jala Durg amma
:: 2 ::
Devalaya Samithi®
Gandhinag ara
Shivamogga-577 201.
...Respondents
(By Sri R.Vijayakumar, Advocate for R1,
R2 Served)
This MFA is filed under Ord er 41 Rule 1(r) of CPC
against the order dated 22.04.2021 passed on
I.A.No.1 and 2 in O.S.No.59/2021 on the file of the
C/C Prl. Senior Civil Judge and CJM, Shivamogga,
allowing the I.A.No.1 filed under Order 39 Rules 1 and
2 of CPC and rejecting the I.A.No.3 filed under Order
39 Rule 4 of CPC.
This MFA coming on for admission this d ay, the
Court delivered the following:
JUDGMENT
Heard Sri Umesh Moolimani, Advocate
appearing on behalf of Sri S.V.Prakash, learned
counsel for the appellant and Sri Vijay Kumar R,
learned counsel for respondent No.1.
2. This appeal is filed by defendant No.2 in
O.S.No.59/52021 on the file of the Principal Senior
Civil Judge at Shivamogga. In the suit filed by the
first respondent/plaintiff, declaration with regard
to gift deed dated 01.03.2018 being void and
:: 3 ::
consequential relief of permanent injunction are
sought. The first respondent also filed an
application for temporary injunction and the Trial
Court granted the application and hence this
appeal.
3. It is the contention of the appellant that
on the day when the suit was filed, there existed a
house and that since it was in dilapidated
condition, the appellant wanted to demolish the
same and construct a new house and at that
juncture the suit came to be filed.
4. The appellant's counsel submits that if
permission to construct the house is granted, the
appellant will not claim equity in case the plaintiff
succeeds in the suit.
5. On the other hand, Sri Vijay Kumar R,
counsel for respondent No.1 submits that the
property belongs to the temple and no permission
can be granted to the appellant to construct the
:: 4 ::
house, because the temple wants to construct a
Samudaya Bhavana in the said property.
Therefore he submits that the trial Court may be
directed to dispose of the suit itself within a time
frame instead of vacating the interim order of
temporary injunction.
6. The Trial Court has given a finding that
at the time when the suit was filed, the
construction had begun. This status is not
disputed by the appellant. The respondent has
questioned the validity of the gift deed and right
of the appellant to raise construction. In this
view, it is not feasible to permit the appellant to
undertake construction. Moreover the appellant
has not given details of the extent of construction
she intends to make in the suit property. In these
circumstances, it is better that the suit has to be
disposed of at the earliest. Till then parties have
to maintain the status as it existed on the date of
suit.
:: 5 ::
7. If the plaintiff makes an application
before the Trial Court for disposal of the suit, the
Trial Court may consider it and dispose of the suit
on merits at the earliest.
The appeal stands disposed of accordingly.
Sd/-
JUDGE
Kmv/-
