Smt H N Swaranamma vs M B Vasudev
2022 Latest Caselaw 5385 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MARCH, 2022

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.15515 OF 2017 (GM-CPC)

BETWEEN:

Smt. H.N.Swaranamma
W/o Late Dr.R.S.Subbanna,
Aged about 83 years.
No.31/2, Temple Road,
1st Cross, Jayalakshmipuram,
Mysore.

Represented by her GPA holder
Major General Krishnakumar Murthy

Since dead by LR

1(a) Smt. Geetha Murthy,
W/o.Maj.Gen. K.K. Murthy,
Aged 66 years,
R.31/2, 1st Cross,
Temple Road,
Jayalakshmipuram,
Mysore - 570012.
                                     ..   Petitioner

(By Sri. Datta Prasad, for
Sri. Manmohan P.N., Advocate)

AND:

1.     M.B.Vasudev
       S/o Late Beggegowda,
       Aged about 76 years.
                                                W.P.No.15515/2017
                               2



2.   Rathna Vasudev
     W/o M.B.Vasudev
     Aged about 69 years.

     Both R/at No.31/2, Temple Road,
     1st Cross, Jayalakshmipuram,
     Mysuru.

                                               .. Respondents

(By Sri.Akash Kumar Gowda for
Sri. Narendra D. Gowda, Advocate for R-1 and R-2)

                             ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to set aside the order dated
01-03-2017 passed in M.A.No.127/2015 by the Court of the III
Additional Senior Civil Judge and CJM, Mysuru (Annexure-"H")
and consequently dismiss M.A.No.127/2015 etc.,

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                          ORDER

The present respondents as plaintiffs have filed

O.S.No.1072/2015, against the present petitioner

arraigning her as defendant No.1, in the Court of the First

Civil Judge (Jr.Dn.) at Mysore, (hereinafter for brevity

referred to as "the Trial Court"), seeking the relief of

permanent injunction, restraining the present petitioner W.P.No.15515/2017

from putting up construction on the South-Eastern side of

the suit schedule "B" property and consequently for a

mandatory injunction, directing the first defendant therein

(petitioner herein) to demolish the alleged illegal

construction or to direct the second and third defendants

in the original suit to demolish the illegal construction said

to have been put up on the South-Eastern side of the suit

schedule "B" property.

2. In the said suit, the plaintiffs therein (respondents

herein) had filed an application under Order XXXIX, Rules 1

and 2 of the Code of Civil Procedure, 1908, (hereinafter for

brevity referred to as "the CPC") for the relief of temporary

injunction. However, the said application came to be

rejected. Aggrieved by the same, the plaintiffs in the

Original Suit preferred a Miscellaneous Appeal in

M.A.No.127/2015, in the Court of the III Additional Senior

Civil Judge and Chief Judicial Magistrate, Mysore, which

Court, after hearing both side, by its judgment dated

01-03-2017, allowed the miscellaneous appeal. While W.P.No.15515/2017

setting aside the impugned order of the Trial Court, passed

on I.A.No.1 filed under Order XXXIX, Rules 1 and 2 of the

CPC, it restrained the defendant No.1 in the suit (petitioner

herein) from putting up any illegal construction over the

suit schedule "B" property, till the disposal of the Original

Suit. Challenging the same, the defendant No.1 in the

Original Suit has come up before this Court in this writ

petition.

3. Heard the arguments from the learned counsels

from both side.

4. Learned counsel for the petitioner (defendant No.1)

though submits that as could be seen in Annexure J, which

is the Building Completion Certificate, the entire

construction was completed prior to 10-03-2016, as such,

the impugned order does not sustain, still he concedes that,

he is not sure as to whether the said contention was

taken up in the Trial Court and that whether

Annexure-J was placed before the Court.

W.P.No.15515/2017

5. On the other hand, the learned counsel for the

respondents (plaintiffs) submits that, taking advantage of

the interim order passed in this matter, by this Court, the

petitioner has completed the construction.

However, both side learned counsels submit that the

alleged construction is complete, as such, no activity of any

construction by the petitioner herein is due or that any

order of restrainment would have no further implication in

the matter.

6. In the above circumstance, I am of the view that

since admittedly the alleged construction is said to have

been already completed, but when the said construction is

said to have been completed, being only a question of fact,

which has to be decided upon only after recording the

evidence in that regard, this Court, in this writ petition, and

upon the available records, cannot decide the said aspect.

As such, keeping open the said question to be decided, if

found necessary, by the Trial Court, the writ petition may

be disposed of, however, with a direction to the Trial Court W.P.No.15515/2017

to dispose of the Original Suit at the earliest but not later

than six months from today.

It is ordering accordingly, the writ petition stands

disposed of.

Sd/-

JUDGE

BMV*