Dismissed

Mrs. B. T. Jayalakshmamma v. Mrs. Asha Pradhan

Karnataka HC9 Dec 2019MFA/8098/2018

Case brief

AI extract

What is this about?

In Miscellaneous First Appeal No. 8098 of 2018, the High Court of Karnataka dismissed the appeal. The Court upheld a trial court order granting an interim injunction restraining the appellant from constructing on disputed property, finding the respondent made a prima facie case under Order XXXIX CPC.

What did the court decide?

The appeal is dismissed; the interim order restraining the appellant is confirmed; the trial judge is directed to dispose of the suit expeditiously.

Mrs. B. T. Jayalakshmamma Vs Mrs. Asha Pradhan — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF DECEMBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.8098 OF 2018 (CPC)

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BETWEEN: MRS.B.T.JAYALAKSHMAMMA AGED ABOUT 70 YEARS W/O.MR.H.C.CHANNAIAH NO.693/18, 5^TH MAIN 11^TH CROSS, MRCR LAYOUT VIJAYANAGAR BENGALURU-560 040

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ALSO AT: #314 AND 315 NEXT TO MONOLITHIC APARTMENTS SAMPIGE ROAD MALLESWARAM BENGALURU-560 003 ... APPELLANT

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(BY SRI N.JAIPRAKASH RAO, ADVOCATE)

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AND:

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MRS. ASHA PRADHAN AGED ABOUT 44 YEARS D/O.MR.JAYANNA G.S. R/AT NO.32, ARAVIND HOUSE J.P.NAGAR POST KANAKAPURA MAIN ROAD NEXT TO BDO OFFICE BENGALURU-560 078 ... RESPONDENT

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(BY SRI SREEVATSA S., SENIOR COUNSEL FOR SRI NIKHIL KURGOD, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 08.08.2018 PASSED BY THE COURT OF LVII

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN OS.NO.25626/2018 ON IA.NO.1 AND ETC.

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

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JUDGMENT

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Heard the learned counsel for the appellant and the learned senior counsel appearing for the caveator/respondent.

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Though the case is listed for admission, on the consent of parties it is taken up for final disposal.

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The respondent filed a suit for the relief of declaration to use schedule ‘A’ property for car parking and the relief of mandatory injunction and permanent injunction against the appellant herein.

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The respondent filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC for a direction restraining the appellant from putting up any construction in the schedule ‘B’ property, in any manner, pending disposal of the suit. The schedule ‘B’ property consists of land measuring East to West-15’ feet and North to South-15’ feet on the Western side of the common passage located on the Northern side of the properties bearing Nos.313, 314 and

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315 situated at Sampige Road (2^nd Main Road), Malleshwaram, Bengaluru-560 003.

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It is the case of the respondent-plaintiff that she along with her husband purchased the immovable property bearing No.316 along with right to use the suit schedule ‘A’ property for car parking facility from their vendors Sri.Krishnamurthy Rao and his family members. The respondent/plaintiff also purchased the immovable property bearing No.316/1 (adjoining their property bearing No.316) measuring East to West-12’ feet and North to South-10’ from the vendors Sri N. Raja Rao and his family members under a registered sale deed dated 28.07.2007. Accordingly, by virtue of the said sale deed, the respondent has been in possession of the said property and has been using the common passage to park her vehicle. It is the further case of the respondent that the appellant has attempted to lock the gate of the schedule ‘A’ property and now she is making attempts to put up construction thereby depriving the rights of the plaintiff-respondent from using the schedule ‘A’ property. The appellant filed her objection statement denying the claim of the respondent and after considering the statement made by the parties, the Court below passed an order restraining the appellant herein from putting up construction on

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the schedule ‘B’ property, pending disposal of the suit. Aggrieved by the said order, the appellant is before this Court.

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The appellant submits that the respondent has purchased the property and amalgamated property Nos.316 and 316/1. Pursuant to the same, it is the case of the appellant that there is no access to the remaining portion which is in the possession of the appellant and was assigned Corporation No.314 and she is the absolute owner of the property bearing Nos.314 and 315. The appellant further submits that she has obtained the sanctioned plan from the BBMP for putting up construction in the said passage, which is described in schedule ‘A’ property measuring East to West-106’ feet and North to South-15’ feet.

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The learned counsel for the appellant submits that the very suit itself may not be maintainable in view of the fact that no comprehensive relief has been sought by the respondent and the learned counsel also reiterates that it is also not a case of the respondent that she is in absolute possession and enjoyment of the suit schedule ‘A’ and ‘B’ properties. When it was at the stage of construction, the respondent has rushed to the Court below and obtained an order of injunction against the

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appellant herein and the order passed by the trial Court is not sustainable in law.

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Per contra, the learned senior counsel appearing on behalf of the respondent submits that the respondent has purchased the properties bearing Nos.316 and 316/1 by virtue of two registered sale deeds dated 31.01.2006 and 28.07.2007. He produces a copy of the sale deed wherein it is stated that the car parking shall be provided by the vendors and right to use the right side of the passage of the schedule ‘B’ property. He further submits that she has been in possession of the property purchased by her and she has been using the schedule ‘B’ property to park her vehicle.

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After giving careful consideration, I am of the opinion that the questions as to whether the suit filed by the respondent is maintainable or not and whether the respondent would have a right to use the passage as shown in the schedule ‘B’ property have to be decided in the trial that is pending before the Court below. At this stage, this Court refrain from expressing any opinion with regard to the right of the parties over the schedule ‘A’ and ‘B’ properties. What is required to be seen while granting an order under Order XXXIX Rules 1 and 2

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of CPC is that - whether a party, who applied to secure an order under Order XXXIX Rules 1 and 2 of CPC has to come with a prima facie case and whether there will be balance of convenience in his/her favour and whether there is any irreparable injury that would be caused to the parties who is deprived of the same. There is no dispute to the fact that respondent/plaintiff is the owner of property bearing No.316, 2^nd Main, Sampige Road. It is also not disputed that the sale deed of the respondent/plaintiff contains an averment that ‘car parking will be provided by the vendors on the right side of the passage of ‘B’ schedule property’. Though the aspect of providing car parking is seriously disputed by the learned counsel for the appellant, the fact remains that respondent/plaintiff is the owner of the adjacent property and as per her sale deed, there is a mention to use the right side of the passage of ‘B’ schedule property.

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Therefore, the respondent/plaintiff has made out a prima facie case for grant of temporary injunction. Hence, suffice it to say that the interim order passed by the Court below does not call for any interference as prima facie the respondent has made out a case for grant of the same.

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The learned senior counsel submits that as the suit is at the stage of completion of evidence of the plaintiff, the trial Court may be directed to decide the same in an expeditious manner. Without adverting to any issues on merits of the matter, the order of the trial Court is confirmed. Accordingly, the appeal is dismissed.

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Considering the facts and circumstances of the case, the

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trial Judge is requested to dispose of the suit expeditiously.

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Pending application does not survive and the same is accordingly disposed of.

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Sd/JUDGE

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Mrs. B. T. Jayalakshmamma v. Mrs. Asha Pradhan

Case brief

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Mrs. B. T. Jayalakshmamma v. Mrs. Asha Pradhan

Case brief

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