Sri K V Nagabhushan vs Sri H B Santhosh Kumar Jain
2023 Latest Caselaw 1699 Kant

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                                                                MFA No. 870 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 3RD DAY OF MARCH, 2023

                                                BEFORE

                           THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

                        MISCELLANEOUS FIRST APPEAL NO. 870 OF 2023 (CPC)

                   BETWEEN:

                   SRI K V NAGABHUSHAN
                   S/O LATE K V MURTHY,
                   AGED ABOUT 66 YEARS,
                   R/AT SITE NO 302, 2ND FLOOR,
                   SRI NANJUNDESHWARA RESIDENCY,
                   R.R. 5, 12TH MAIN, 13TH CROSS,
                   IDEAL HOMES, R R NAGAR,
                   BENGALURU-560 098.
                                                                           ...APPELLANT
                   (BY SRI. KAMALESHWARA POOJARY.,ADVOCATE)
                   AND:

                   1.     SRI H B SANTHOSH KUMAR JAIN
                          S/O H BAHUBALI,
                          AGED ABOUT 58 YEARS.
Digitally signed
by CHANDANA B
M                  2.     SMT CHAYA SANTHOSH KUMAR H
Location: High            W/O H B SANTHOSH KUMAR JAIN,
Court of                  AGED ABOUT 54 YEARS,
Karnataka

                          BOTH ARE R/AT NO.72/15,
                          4TH CROSS ROAD, AJADNAGARA,
                          BENGALURU-560 018.
                                                                      ...RESPONDENTS
                   (BY SRI.S.S. NAGANAND, SENIOR COUNSEL FOR
                       SRI. H.T. JAGANNATH ,ADVOCATE C/R-1
                       NOTICE TO R-2 D/W)

                           THIS MFA FILED U/O.43 RULE 1(r) R/W SECTION 151 OF CPC,
                   AGAINST     THE   ORDER   DT.16.01.2023   PASSED   ON   IA   NO.1   IN
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                                             MFA No. 870 of 2023




O.S.NO.96/2023 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, (CCH-44), DISMISSING IA NO.1 FILED
U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC.

      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                            JUDGMENT

This appeal by the plaintiff in O.S.No.96/2023 is directed

against the impugned order dated 16.01.2023 passed on I.A.No.1

by the XLIII Addl.City Civil and Sessions Judge, Bangalore,

whereby the said application filed by the appellant - plaintiff for

temporary injunction against the respondents - defendants

restraining them from interfering with the appellant's peaceful

possession and enjoyment of the suit schedule immovable property

was dismissed by the trial court.

2. Heard learned counsel for the appellant and learned

Senior counsel for the 1st respondent - caveator and perused the

material on record.

3. The material on record discloses that the appellant

instituted the aforesaid suit for permanent injunction. The said suit

is being contested by the respondents - defendants. Along with

MFA No. 870 of 2023

the suit, I.A.No.1 filed by the appellant - plaintiff also having been

contested by the respondents - defendants, the trial court

proceeded to pass the impugned order rejecting I.A.No.1,

aggrieved by which, the appellant - plaintiff is before this Court by

way of the present appeal.

4. The material on record also discloses that there are

several other contentious issues and disputed questions of fact and

law including the maintainability of the suit arose for consideration,

which would be decided necessarily after the full fledged trial. It is

also relevant to state that the construction being put up by the

respondents - defendants is nearing completion as on today. It is

further significant to note that there is serious dispute as regards

the location and identity of the property claimed by both sides,

which also to be decided by the trial court after full fledged trial.

5. Under these circumstances, since the construction has

already been commenced by the respondents - defendants, I

deem it just and appropriate to dispose of this appeal by modifying

the impugned order passed by the trial court and by issuing certain

directions in this regard.

MFA No. 870 of 2023

6. In the result, I pass the following;-

ORDER

(i) Appeal is hereby disposed of.

(ii) The impugned order dated 16.01.2023 passed on

I.A.No.1 in O.S.No.96/2023 by the trial court is hereby modified.

(iii) The respondents - defendants are permitted to complete

the construction commenced by them on the suit schedule

property, subject to the condition that they shall not claim any

equity in this regard and that the same would be subject to final

outcome of the suit without prejudice to the rights and contentions

of the parties.

(iv) It is further directed that in the event, the plaintiff is

successful and the respondents - defendants are not successful in

the suit, the defendants would restore the status quo ante of the

suit schedule property as it existed as on the date of the institution

of the suit without driving the plaintiffs to file a separate suit.

(v) The trial court is directed to dispose of the suit within a

period of six months from the date of receipt of a copy of this order,

without being influenced by the findings and observations recorded

in the impugned order.

MFA No. 870 of 2023

(vi) All rival contentions between the parties are kept open

and no opinion is expressed on the same.

Sd/-

JUDGE

SRL