M/S Greenfinch Projects Pvt Ltd vs Shankar Gowda Patil
2022 Latest Caselaw 7609 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 27TH DAY OF MAY, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.2304/2021 (CPC)

BETWEEN:

M/S GREENFINCH PROJECTS PVT LTD
NO.1/2A AND 2B
KEMPAPURA MAIN ROAD
YAMALUR BANGALURU -560 0037
REPRESENTED BY ITS DIRECTOR

                                          ... APPELLANT
(BY SRI. B N JAYADEVA, ADVOCATE)

AND:

SHANKAR GOWDA PATIL
AGED ABOUT 44 YEARS,
S/O SRI RUDRA GOWDA PATIL
NO.302 3RD FLOOR
MATHRU SHREE VILLAGE HOMES
YAMALUR MAIN ROAD,
BENGALURU-560 037                       ... RESPONDENT

(BY SRI, PAVAN KUMAR G, ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
U/O 43 RULE 1(r) OF CPC PRAYING TO SET ASIDE THE
ORDER DATED 27.05.2021 PASSED THEREIN ALLOWING
I.A.NO.1 FILED BY THE RESPONDENT UNDER ORDER 39
RULES 1 AND 2 OF CPC.
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    THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          JUDGMENT

The defendant in O.S.No.2094/2021 on the file of the

VI Additional City Civil and Sessions Judge, Bengaluru City

(for short, 'the civil Court'), has impugned the order dated

27.05.2021. The civil Court by the impugned order has

restrained the appellant from preventing the respondent

from using a portion of the appellant's property in

Sy.No.1/5 of Yamalur Village, Varthur Hobli, Bengaluru

East Taluk for the purposes of ingress and egress to the

respondent's property in Sy.No.1/7 of the same village.

This Court has granted interim order staying the civil

Court's order.

After being heard for some time, both

Sri. B.N.Jayadeva and Sri. Pavan Kumar .G, the learned

counsels for the parties, submit that the appeal could be

disposed of modifying the impugned order to indicate that

any development by the appellant in the suit schedule 'B'

property shall be subject to the outcome of the suit. The

learned counsels submit that this submission is in the light

of the undisputed fact that the appellant's property abuts

Kempapura road on its Northern side and the respondent's

property does not abut the appellant's property but is

situated after another property, and because the appellant

has presently constructed a compound wall and is

undertaking certain activities for commencement of a petrol

retail outlet.

In the circumstances of the case, this Court is of the

considered view that the submissions must be accepted

and the appeal disposed of modifying the impugned order

stating that the appellant shall be at liberty to use/develop

the suit schedule 'B' property unhindered but on the

condition that such development/use shall be subject to

the outcome of the final adjudication in the suit and that

the civil Court must, while considering the rival claims in

an expeditious manner, must also consider the question of

imposition of exemplary cost if it is of the opinion that the

respondent has commenced a chance litigation. Hence, the

following:

ORDER

The appeal is allowed in part and the impugned order

dated 27.05.2021 in O.S.No.2094/2021 on the file of the VI

Additional City Civil and Sessions Judge, Bengaluru City is

modified permitting the appellant-defendant to use/develop

the suit schedule 'B' property unhindered but subject to

the outcome of the suit.

The parties shall assist the civil Court in expeditious

disposal of the suit and in any event within an outer limit

of twelve [12] months from the date of receipt of certified

copy of this order.

SD/-

JUDGE RB