Karnataka High Court
Mr Krishna Shetty vs Mr Narendra Suvarna on 15 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8320 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8320 OF 2023 (CPC)
BETWEEN:
1. MR. KRISHNA SHETTY
S/O LATE SANJEEVA SHETTY,
AGED ABOUT 58 YEARS,
R/AT 5-107/1, GUDE THOTA NAGURI
KANAKANADY POST, MANGALURU
D.K. DISTRICT-570 002
...APPELLANT
(BY SRI. K. RAVISHANKAR, ADVOCATE)
AND:
1. MR. NARENDRA SUVARNA
S/O SRI. MUTHAPPA BANGERA
AGED ABOUT 53 YEARS,
R/AT GUDDETHOTA HOUSE,
Digitally signed
by SHARANYA T NAGORI, KANKANADY POST,
Location: HIGH MANGALURU,
COURT OF D.K. DISTRICT-570 002
KARNATAKA
...RESPONDENT
(BY SRI. RAKESH KINI, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 25.07.2023 PASSED ON I.A. NO.
III IN R.A.NO.13/2022 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, COMMERCIAL COURT,
DAKSHINA KANNADA, MANGALURU, DISMISSING THE I.A.
NO.3 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF CPC.
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MFA No. 8320 of 2023
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
respondent.
2. The Trial Court rejected the application filed under
Order 39 Rule 1 and 2 of CPC, wherein prayed the Trial Court
to grant an order of mandatory injunction directing the
respondent to re-connect water supply pipeline to the
residential house of the appellant i.e., 'A' schedule property.
3. In support of the application, an affidavit is sworn
to that the respondent is trying to interfere with the peaceful
possession and enjoyment of the residential house bearing
D.No.5-107/1, since several years. It is stated that an attempt
is made to forcibly dispossess the appellant and his family from
the portion of schedule property. On 04.01.2023, the First
Appellate Court has also granted an order of stay of the
impugned judgment and decree dated 26.08.2022. The house
in which the appellant is residing is having water connection
and water supply from the City Corporation will directly go
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through pipeline to the syntax tanks kept in the open terrace.
They have been using the water connection, since more than
14 years. On 05.02.2023, high-handedly and illegally, the
respondent has cut the water pipeline, which leads to the 'A'
schedule property by inserting a stopper and thereby
completely blocked the water connection to the said property.
The respondent has provided a separate water connection to
the house bearing D.No.5-107 in the cellar portion, only with
ill-intention the respondent is somehow to forcibly dispossess
the appellant and his family from the 'A' schedule property in a
manner unknown to law. The respondent has also obtained
new water connection to his house in the first floor. When the
appellant had been to repair the same through a plumber, the
respondent has abused the appellant and gave life threat to
him. However, the respondent is creating all types of
obstacles, hindrance and illegal acts in the matter of water
connection to the 'A' schedule property.
4. The respondent appeared and filed the objection
statement contending that the very application is filed with an
intention to drag the matter and to cause delay. The present
application is nothing but an adjournment application in
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disguise. Only with an intention to harass the respondent and
mislead the Court, the present application is filed. The appellant
himself disconnected the water connection illegally to other two
tenements. As against such act of the appellant, the
respondent had filed complaint before the jurisdictional police
station and his wife had filed complaint before the City
Corporation. However, the jurisdictional police had issued an
endorsement stating that since it is a civil dispute, the same
would have to be adjudicated before the Civil Court. Hence,
the respondent had pressed for early disposal of the matter on
17.02.2023. However, the appellant had submitted to the
Court that they would argue the matter on next hearing date
without fail. On the next hearing date i.e., on 04.03.2023, the
present application is filed. If at all the appellant was really in
trouble, then he would have sought for advancement of the
case and filed the present application. If not at least on
17.02.2023, the appellant would have filed the present
application and the same was not done and the application is
filed belatedly with an intention to protract the proceedings
before the Trial Court.
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5. Having heard the learned counsel for the appellant
and learned counsel for the respondent, taking note of the
alleged disconnection of water on 05.02.2023 and present
application was filed on 04.03.2023 i.e., after one month
though the water was disconnected and water supply pipeline is
stopped to 'A' schedule property and only relying upon the
photographs, it cannot be said that the appellant has no water
supply. Hence, taking note of the conduct of the appellant, the
Trial Court dismissed the application and therefore, the present
appeal is filed.
6. Learned counsel for the appellant would contend
that the application was rejected only on the ground of delay
and delay was not explained properly. The counsel also filed
photographs along with memo before this Court and relying
upon the same, the counsel would point out that water
connection is disconnected. Learned counsel would submit that
the same may be restored and appeal can be heard on merits.
7. Per contra, learned counsel for the respondent gives
details of events that suit filed by the respondent was decreed
on 26.08.2022 and judgment and decree of the Trial Court was
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stayed on 04.01.2023. Learned counsel would contend that on
25.01.2023 itself, the complaint was given with regard to
disconnection of water in respect of other house by the
appellant herein and the counsel also would submit that new
connection was given on 01.02.2023. The respondent filed
complaint against the appellant before the Commissioner,
Mangalore City Corporation that the appellant has cut off the
water connection pipe and with regard to police complaint
dated 13.02.2023, an endorsement was issued. The appellant
gave the statement before the police that he will not indulge in
conflict with the respondent and photos showing disconnection.
On the same day, the appellant allegedly filed false complaint
before the police on 13.02.2023 and the case was posted for
argument on 04.03.2023 and the very counsel appearing for
the appellant prayed time and matter was adjourned at the
instance of the appellant only and even not addressed the
argument on I.A. and the Trial Court, taking note of filing of
objections and when the case was filed, the appellant himself
has prayed time to argue on I.As and order was passed and
present appeal is filed on 20.11.2023. Inspite of it, if really the
water is disconnected, the appellant would not have kept quiet
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for longer period and only with an intention to protract the
proceedings, the application is filed before the Trial Court.
8. Having heard the learned counsel for the appellant
and learned counsel for the respondent, it is not in dispute that
the judgment and decree was passed on 26.08.2022 and it is
also not in dispute that the very judgment and decree of the
Trial Court is questioned in R.A.No.13/2022 and stay has been
granted. When stay was granted on 04.01.2023, the matter
was posted for arguments and in the meantime, complaint was
filed by the respondent before the Commissioner, Mangalore
City Corporation on 25.01.2023 and the case of the appellant is
that water was disconnected on 05.02.2023 on the other hand,
new connection was obtained on 01.02.2023 and the wife of
the respondent also filed the complaint against the appellant
before the Mangaluru City Corporation alleging water
disconnection and inter-se there is a dispute with regard to the
disconnection of water pipe and though the application could
have been filed before the Trial Court for restoration of water
connection at the earliest, the application was filed belatedly in
the month of March and the same is taken note by the Trial
Court and having considered the said fact, the Trial Court
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observed that if really there is disconnection of water, the
appellant would have approached the Court immediately and
application is filed almost after one month and apart from that,
records also reveal that the appellant instead of pressing the
application, sought time and matter was adjourned at the
instance of the appellant. When such being case, there is a
force in the contention of the learned counsel for the
respondent that instead of arguing the matter on merits, he
has come up with an application for mandatory injunction.
9. Having taken note of the said fact, though
disconnection was made on 05.02.2023, the appellant belatedly
filed the application after one month and after one month of
filing of application also, not argued the matter on I.A. and
main appeal. When such being the case, I do not find any
ground to set aside the order of the Trial Court. However,
taking note of the fact that already matter is pending before
the First Appellate Court and matter was adjourned at the
instance of the appellant, it is appropriate to direct the First
Appellate Court to dispose of the appeal within a period of two
months from today. Both the parties and their respective
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counsel are directed to assist the First Appellate Court in
disposal of the main appeal within the time bound period.
With these observations, the appeal is disposed of.
Sd/-
JUDGE
ST
