Karnataka High Court

Mr B Krishnappa vs Cauvery Gruha Nirmana Sahakara Sangha ... on 5 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

                                                   -1-
                                                            NC: 2023:KHC:43934
                                                          WP No. 10865 of 2023




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                                 BEFORE

                              THE HON'BLE MR JUSTICE S.G.PANDIT

                           WRIT PETITION NO. 10865 OF 2023 (GM-CPC)

                      BETWEEN:

                      1.   MR B KRISHNAPPA
                           S/O LATE BORAIAH
                           AGED ABOUT 63 YEARS

                      2.   MRS. SUNANDAMMA
                           W/O B. KRISHNAPPA
                           AGED ABOUT 53 YEARS

                      3.   MR. UMESH K
                           S/O B. KRISHNAPPA
                           AGED ABOUT 36 YEARS

                      4.   MR. K.B. KIRAN
                           S/O B. KRISHNAPPA
Digitally signed by
A K CHANDRIKA              AGED ABOUT 32 YEARS
Location: High
Court Of                   ALL ARE R/AT NO.2727,
Karnataka
                           2ND CROSS, HOSABEEDI,
                           K.G. KOPPAL,
                           MYSURU-583231.

                           ALSO R/AT SY.NO.16/2,
                           CHIKKAHARADANAHALLI VILLAGE,
                           JAYANAGAR,
                           CHAMARAJA MOHALLA,
                           MYSURU-570014.
                                                                 ...PETITIONERS
                      (BY SRI. AJIT P B, ADV.)
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                                       NC: 2023:KHC:43934
                                     WP No. 10865 of 2023




AND:

1.   CAUVERY GRUHA NIRMANA
     SAHAKARA SANGHA NIYAMITHA
     HAVING ITS OFFICE AT NO.2877,
     SRIRANGA ARCADE,
     CHAMUNDIPURAM,
     NARAYANASHASTRI ROAD,
     MYSURU-570004.

2.   MR. T.S. DHARMENDRA
     S/O LATE SRINIVASA GOWDA,
     AGED ABOUT 43 YEARS,
     S/A NO.2877, SRIRANGA ARCADE,
     CHAMUNDIPURAM,
     NARAYANASHASTRI ROAD,
     MYSURU-570004.
                                          ...RESPONDENTS

(BY SRI. RAVINDRA BABU G., ADV. FOR R1 & R2)


       THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 22.11.2022 PASSED BY THE VI ADDITIONAL
CIVIL JUDGE AND JMFC, AT MYSURU IN O.S.NO.464/2014 ON
I.A.NO.13 FILED BY THE RESPONDENT UNDER ORDER 39 RULE
1 AND 2 PRODUCED AS ANNEXURE-J AND SET ASIDE THE
ORDER DATED 02.03.2023 IN M.A.NO.96/2023 PASSED BY THE
IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AT MYSURU
PRODUCED HEREWITH AS ANNEXURE-L.


       THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                         NC: 2023:KHC:43934
                                      WP No. 10865 of 2023




                             ORDER

The petitioners, defendants in O.S.No.464/2014 on

the file of VI Additional Civil Judge and JMFC, Mysuru are

before this Court, questioning the order dated 22.11.2022

on I.A.No.13 allowing the application filed under Order

XXXIX Rules 1 and 2 of CPC and judgment dated

02.03.2023 on M.A.No.96/2023 on the file of VI Additional

Senior Civil Judge and JMFC, Mysuru, confirming the order

passed by the trial Court.

2. Heard learned counsel Sri.Ajit P.B. for petitioners and

learned counsel Sri.Ravindra Babu G., for respondent

No.1/plaintiff. Perused the writ petition papers.

3. Learned counsel for the petitioners would submit that

the suit of the respondent/plaintiff is one for specific

performance of agreement dated 02.09.2004 directing

defendants No.1 to 4 to execute the sale deed and to hand

over possession of the suit schedule property i.e., 19

guntas of land out of 39 guntas in Sy.No.16/2, situated at

Chikkaharadanahalli village, Kasaba Hobli, Mysore Taluk.

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Learned counsel for the petitioners would submit that the

respondents/plaintiffs filed I.A.No.13 under Order XXXIX

Rules 1 and 2 of CPC praying for ad-interim temporary

injunction to restrain the petitioners/defendants from

putting up any construction in the application schedule

property in any manner. Learned counsel for the

petitioners/defendants would submit that the

petitioners/defendants had entered into agreement dated

31.01.2007 to sell the agreement schedule property and

the possession is with the petitioners/defendants. The

petitioners/defendants commenced construction in the suit

schedule property and at that point of time,

respondents/plaintiffs filed application under Order XXXIX

Rules 1 and 2 of CPC praying to restrain the

petitioners/defendants from putting up any construction.

It is submitted that the trial Court without examining the

necessity to injunct the petitioners/defendants allowed the

application and injuncted the petitioners from proceeding

with the construction. Learned counsel for the petitioners

would submit that if the respondents/plaintiffs succeed in

NC: 2023:KHC:43934

the suit, the petitioners are ready to demolish the

construction and hand over vacant possession of the suit

schedule property to the plaintiffs. Learned counsel also

invite attention of this Court to the affidavits dated

27.11.2023 and 18.11.2023 in that regard. Therefore,

learned counsel for the petitioners would pray for a

direction to proceed with the construction, recording the

undertaking of the petitioners/defendants, that they would

demolish the building and hand over vacant possession to

the plaintiffs, in the event respondent No.1/plaintiff

succeeds in the suit.

4. Per contra, learned counsel for the respondent No.1/

plaintiff would oppose the prayer of the petitioners/

defendants and submits that if the petitioners are

permitted to construct as prayed, the respondents/

plaintiffs would have no access to the land in Sy.Nos.16/3

and 16/4, which are adjacent to Sy.No.16/2.

5. Having heard the learned counsel for the parties and

on perusal of the writ petition papers, I am of the view

NC: 2023:KHC:43934

that taking note of the affidavit dated 27.11.2023 filed by

petitioner No.3 herein, the petitioners could be permitted

to proceed with construction with a condition to hand over

vacant possession of the suit schedule property by

demolishing the building if respondents/plaintiffs succeed

in the suit.

6. I.A.No.13/2023 is filed under Order XXXIX Rules 1

and 2 of CPC with a prayer to restrain the defendants from

putting up any construction in the application schedule

property. It is not the case of the respondents/plaintiffs

that if construction is permitted, they would be left with no

access to the land in Sy.Nos.16/3 and 16/4. Learned

counsel for the petitioners submits that the building is

being constructed on land measuring 26 x 30 feet.

Further, he submits that the respondents/plaintiffs have

access other than the land in Sy.No.16/2. Paragraphs 3

and 4 of the affidavit filed by petitioner No.3/defendant

No.3 dated 27.11.2023 reads as follows:

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"I submit that in continuation of my earlier affidavit dated 18.11.2023, I further undertake that in the event the Respondents succeeded in the suit in establishing that the structure put up by us in Sy.No.16/2 situated at Chikkaharadanahalli village, Kasaba Hobli, Mysore is part of 19 guntas of land claimed by the Respondents in such an event I would at my cost demolish the building and not seek any equity in respect of the same.

I submit that I am swearing to this affidavit on my behalf and also on behalf of other petitioner in continuation of my earlier affidavit dated 18.11.2023 declaring that I would demolish the building and hand over vacant possession to the Respondents in the event respondents succeeded in the suit establishing that the building put up by me is within 19 guntas of land as described in the plaint schedule. In view of the above undertaking given by me on behalf of other petitioners, I pray that this Hon'ble Court be pleased to allow the writ petition permitting me to complete the building and utilize the same subject to the

NC: 2023:KHC:43934

result of the suit to serve the interest of justice and equity."

7. As the petitioners/defendants have undertaken that

in case respondents/plaintiffs succeed in the suit, they

would hand over vacant possession of the suit schedule

property after demolishing the building. Recording the

undertaking of the petitioners/defendants, the order

passed by the trial Court is modified and the

petitioners/defendants are permitted to proceed with

construction, subject to undertaking in terms of affidavit

dated 27.11.2023.

With the above, the writ petition stands disposed of.

Sd/-

JUDGE