Karnataka High Court
Sri Srinivasa H vs Smt. B R Prabhavathi on 9 May, 2024
-1-
NC: 2024:KHC:17164
MFA No. 2827 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2827 OF 2024 (CPC)
BETWEEN:
SRI SRINIVASA H
S/O M SRIVATSAV
AGED ABOUT 40 YEARS
R/AT FLAT NO.003, B BLOCK V2,
POORVI ENCLAVE NEAR RAMAPRIYA
BRINDAVAN GARDENIA AREHALLY,
SUBRAMANYAPURA,
BANGALORE- 560061.
...APPELLANT
(BY SRI. M R RAJAGOPAL, SENIOR COUNSEL FOR
SRI. SREENIVASA PATAVARDHAN K R., ADVOCATE)
AND:
SMT. B R PRABHAVATHI
D/O LATE RAMACHANDRAIAH,
W/O C S NAGARAJAN,
Digitally AGED ABOUT 63 YEARS,
signed by H R/AT 252, 13TH MAIN,
K HEMA 2ND CROSS, 2ND BLOCK,
Location: BANASHANKARI 1ST STAGE,
High Court BANGALORE-560050.
of Karnataka ...RESPONDENT
(BY SRI. J ARAVIND BABU., ADVOCATE FOR C/R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 27.04.2024 PASSED ON I.A. NO. 1 IN
O.S.NO.2387/2024 ON THE FILE OF THE 17TH ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-16),
ALLOWING THE I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
READ WITH SECTION 151 OF CPC AND ETC.
-2-
NC: 2024:KHC:17164
MFA No. 2827 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed challenging the Order dated
27.04.2024 passed on I.A.No.1 in O.S.No.2387/2024 wherein
the Trial Court has granted an ad-interim injunction restraining
the appellant/defendant from putting up any further
construction.
2. In the present appeal, the appellant has filed an
affidavit dated 09.05.2024, wherein he has undertaken as
follows:
"7. The construction has already reached three floors and
the civil work almost all is completed on the property
belonging to the appellant-defendant and the order of
injunction granted at this stage would substantially affect
the interest of the appellant -defendant and the hardship
will have serious consequences so far as investment of
the appellant in related to the construction is concerned.
Therefore, he is advised to file the affidavit undertaking
in the following terms:
a) Any construction put up in the event if it is completed
by the appellant-defendant, it is needless to state that it
is subject to the result of the suit and the parties shall
abide by the decree to be passed by the Civil Court in
the pending suit.
b) The appellant makes further statement through this
affidavit as an undertaking that in the event if the suit is
decreed by holding that the construction undertaken by
the appellant-defendant, has encroached as alleged by
the plaintiff-respondent, the appellant-defendant is
undertaking to demolish such construction to the extent
NC: 2024:KHC:17164
of encroachment if it is so held by the trial court in the
pending suit, to the extent of such encroachment the
appellant-defendant shall undertake to restore the
vacant place at the cost and risk of the appellant-
defendant without claiming any equity in the event if the
decree attains finality as against the appellant-defendant
is concerned."
3. In view of the undertaking given by the
appellant/defendant as noticed above, the Order dated
27.04.2024 on I.A.No.1 in O.S.No.2387/2024 passed by the
17th Addl. City Civil and Sessions Judge, Bengaluru (CCH-16),
in respect of schedule 'B' property is set aside.
4. It is hereby ordered that in the event the suit of the
plaintiff is decided against the defendant, he shall restore the
vacant place at his own risk and without claiming any equities
in terms of the affidavit dated 09.05.2024.
Ordered accordingly.
In view of the disposal of the appeal, I.A.1/2024 is
disposed of as being unnecessary.
SD/-
JUDGE
BNV
