Dismissed

Shivaraj v. a. Rangaswamy

Karnataka HC5 Aug 2021RP/331/2019

Case brief

AI extract

What is this about?

In a review petition challenging a first appeal order granting temporary injunction to maintain status quo of disputed property, the High Court of Karnataka rejected the argument that a different precedent should have been followed. The court held the order preserved the property status as on the date of suit and dismissed the review.

What did the court decide?

Review petition dismissed. No order as to costs.

Shivaraj Vs a. Rangaswamy — Civil Procedure and Limitation | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 05^TH DAY OF AUGUST 2021

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

¶6

REVIEW PETITION No.331 OF 2019 IN MISCELLANEOUS FIRST APPEAL No.8499 OF 2018

¶7

BETWEEN

¶8

Shivaraj, S/o Lingaiah, Aged about 51 years, Residing at No.64, 2^nd Cross, Minaz Nagar, J.P.Nagara Post, Bengaluru-560078.

¶9

Yashoda, W/o Shivaraj, Aged about 49 years, Residing at No.64, 2^nd Cross, Minaz Nagar, J.P.Nagara Post, Bengaluru-560078.

¶10

…Petitioners

¶11

(By Sri Sharath S. Gowda, Advocate)

¶12

AND

¶13

A.Rangaswamy, S/o Late Akambaram, Aged about 68 years, R/at No.49/23,

¶14

¶15

9^th Cross, Magadi Road, Bengaluru-560028.

¶16

Mirle Varadaraju, S/o Late Boregowda, Aged about 55 years, R/at No.544, 5^th Main, Kengeri Satellite Town, Bengaluru-560060.

¶17

R.Manjunath, S/o Ramegowda, Aged about Major, R/at No.1174, Paduvana Road, 1^st Cross Road, IV Stage, T.K.Layout, Kuvempu Nagar, Mysuru-570022.

¶18

…Respondents

¶19

(By Sri K.B.S.Manian, Advocate for R1; Notice to R2 & R3 dispensed with vide order dated 03.09.2019)

¶20

This Review Petition is filed under Section 114 read with Order 47 Rule 1 of CPC praying to review the order dated 26.07.2019 passed in MFA 8499/2018 on the file of the Hon’ble High Court of Karnataka, Bengaluru.

¶21

This Review Petition having been heard and reserved on 19.07.2021, coming on for pronouncement this day, the court pronounced the following:

¶22

¶23

ORDER

¶24

The petitioners in this review petition are

¶25

respondents 1 and 2 in MFA 8499/2018 and they have

¶26

sought review of the order dated 26.7.2019 in the said appeal. The petitioners are defendants 1 and 2 in the suit O.S.26160/2018. The respondents 3 and 4 in the MFA are defendants 3 and 4 in the suit. While allowing MFA 8499/2018, all the defendants were restrained from changing or altering the nature of the suit property.

¶27

I have heard Sri Sharath S Gowda, learned counsel for the review petitioners and Sri K.B.S.Manian for the first respondent.

¶28

It was the argument of Sri Sharath Gowda

¶29

that the MFA was allowed by following the judgment passed in MFA 3775/2019 and this is the error committed by this court for allowing the appeal. He

¶30

¶31

submitted that this court ought to have followed the judgment in MFA 8988/2017 between S.C.Gangadharaiah and REMCO (BHEL), House Building Cooperative Society Limited, Bengaluru

¶32

and Others [2018 (4) KCCR 3269]. He argued that the facts and circumstances in the case on hand are akin to the facts and circumstances found in the case of S.C.Gangadharaiah. Actually the review petitioners are in possession of the suit property and this is not disputed also. The respondent had earlier filed a suit O.S.2029/2017 seeking the relief of permanent injunction. The plaint in the said suit was rejected as the respondent himself had clearly stated in his plaint that the possession of the suit property was with the petitioners. Later on the respondent approached this court by filing RFA 1602/2018 aggrieved by the order of rejection of plaint and that appeal was dismissed. Subsequently he filed the suit

¶33

¶34

O.S.26160/2018 in which he has sought the relief of possession in respect of only a portion of suit property measuring 7’ x 5’. This portion is not separately described in a schedule. The other reliefs he has claimed in the suit are mandatory injunction directing the petitioners and other two defendants to demolish the shed constructed in a measurement of 7’ x 5’, mandatory injunction for closing the borewell and permanent injunction to restrain all the defendants from entering upon any portion of the property for putting up construction. Therefore the reliefs that the respondent has sought clearly indicate that he was not at all in possession of the suit property on the date when he brought the suit. The petitioners had raised construction already. Actually, for this reason the trial court declined to grant an order of temporary injunction. Now this court, while disposing of MFA 8499/2018, has wrongly applied the decision in MFA

¶35

¶36

3775/2019 and this is the error apparent on the face of the record. He further submitted that the injunction order granted by this court has stopped the construction undertaken by the petitioners. They have been affected a lot. The petitioners have made out a ground for review of the order and therefore he pleaded for reviewing the order and dismissing the appeal.

¶37

Sri. K.B.S. Manian argued that the petitioners

¶38

have actually sought rehearing of the appeal which is not permitted. The scope of review is very limited, unless the petitioners are able to show that there is an error apparent on the face of the record, review cannot be granted. In this case, this court has rightly followed the judgment in MFA 3775/2019. The case of Gangadharaiah cannot be applied. The purpose of granting injunction is to preserve the status of the disputed property and in this view, if this court

¶39

¶40

ordered for preserving that status till disposal of the suit, no infirmity can be found in it. He further submitted that actually, when the respondent filed the suit for possession and mandatory injunction, the suit property was vacant. There is a clear observation to this effect in MFA 8020/2018. This court while disposing of MFA 8020/2018 directed that the review petitioners and other defendants should maintain status quo as on that day till the trial court would decide the application filed by the respondent herein i.e., the plaintiff in the suit under Order 39 Rules 1 and 2 CPC. But by the time the trial court disposed of the application for injunction, the respondents, by violating the order of status quo, were able to raise construction. The construction thus made by the petitioners cannot be understood as if the respondent lost his possession over the suit property. While granting injunction, the position or status of the

¶41

¶42

property as on the date of the suit is important. Acts of interference including encroaching upon a portion of the property cannot in anyway be understood that the respondent being the plaintiff was not in possession on the date of the suit. Therefore it was his argument that there are no grounds to grant review and hence the review petition is to be dismissed.

¶43

Order 47 Rule 1 of Code of Civil Procedure envisages three circumstances under which review of the order or judgment can be granted. They are (i) discovery of a new or important matter of evidence which was not within the knowledge of the party seeking review and which could not be produced by him at the time when the decree or order was passed, (ii) on account of some mistake or error on the face of the record and (iii) for any other sufficient reason. It is settled position of law that review petitioner is not

¶44

¶45

entitled to seek rehearing of the suit or the appeal or

¶46

any proceeding. Review is not an appeal also.

¶47

In the case on hand, the error that the

¶48

petitioners try to make out is that this court has wrongly followed the judgment in MFA 3775/2019 and according to him the judgment in another appeal i.e., MFA 8988/2017 (S.C.Gangadharaiah Vs. REMCO

¶49

(BHEL) House Building Co-operative Society

¶50

Limited) should have been followed. MFA 8988/2017 was preferred by 1^st defendant in O.S.No.6794/2017 challenging the order of the Addl. City Civil Judge allowing the application filed by the plaintiff therein for temporary injunction. The said appeal was allowed

¶51

and the order of granting injunction was set aside. The reason as to why the petitioners herein insist on following the judgment in MFA 8988/2017 is quite clear. The petitioners’ position is akin to that of the appellant in MFA 8988/2017. But I do not think that

¶52

¶53

there is any error apparent on the face of record for granting review. For the reason that while deciding MFA 8499/2018, the order in which has given rise to

¶54

this review petition, elaborate reasons were not given as it was felt that the reasons given in MFA 3775/2019

¶55

would suffice the situation. Therefore now to hold that there are no grounds for granting review, reasons

¶56

are to be given though actually not necessary.

¶57

7. The acquisition of lands by the Government in

¶58

favour of some house building co-operative societies

¶59

were set aside by this court in a writ petition and this

¶60

order was upheld by the Supreme Court. The Supreme Court directed the Government to return the

¶61

acquired lands to the owners of the lands. But subsequently, the housing societies entered into further transactions with the land owners and obtained documents styled as ‘Confirmation-cumRatification Deeds’. The land owners received further

¶62

¶63

consideration, allowed the societies to form layouts and allot the sites to its members. It appears that some land owners entered into separate transactions with others taking advantage of quashing of the acquisition and sold the land in pieces. The petitioners herein appear to be a purchaser of a site from the land owners after quashing of the acquisition proceeding, and the appellant in MFA 8988/2017 was also a purchaser like the petitioners herein from erstwhile land owners. The appellant in MFA 8988/2017 was the defendant in the suit. In MFA 8988/2017, the materials on record disclosed that the appellant therein was in possession of the suit property and therefore it was held that the trial court should not have granted injunction in favour of the plaintiff in the suit. But in the case on hand, the position appears to be some what different.

¶64

¶65

The contention of the review petitioners is that the respondent had earlier filed a suit O.S.2029/2017 against the petitioners and other

¶66

defendants for permanent injunction in respect of the very same property. The plaint in the said suit was rejected by the trial court under Order 7 Rule 11 CPC having found that on the date of suit, the respondent being the plaintiff therein was not in possession. The respondent then preferred an appeal RFA 1602/2018 and it was also dismissed. Subsequently the respondent filed O.S.26160/2018 claiming the reliefs of possession of a portion of suit property measuring 7 x 5 ft. and mandatory injunctions as referred to above already.

¶67

The very fact that the suit O.S.26160/2018 is

¶68

for possession and mandatory injunction shows that the respondent is not in possession. Merely for this reason it cannot be said that the respondent is not

¶69

¶70

entitled to an order of temporary injunction, because when an order of temporary injunction is sought in a suit for possession and mandatory injunction, the nature of the property as on the date of filing of the suit matters more than the party with whom the possession lies. In a suit of this nature, temporary injunction is usually granted for preservation of the status or position of the property on the date of suit to protect the interest of either side. It is true that the petitioners have been contending throughout that they are in possession of the suit property and that they have raised construction. But to understand what was the nature of the property as on the date of filing of O.S.26160/2018, reference may be made to what this court has observed in MFA 8020/2018 decided on 4.10.2018. This appeal was filed by the plaintiff in O.S.26160/2018 when the trial court in the initial stage did not grant an exparte order of injunction in

¶71

¶72

spite of the fact that an order of temporary injunction granted in the earlier suit i.e., O.S.2029/2017 was in force till the plaint therein was rejected. While disposing of MFA 8020/2018, this court noticed the status of property in question as on the date of suit O.S.26160/2018. The observations made by this court are extracted here.

¶73

“4. Perused the order dated 28.09.2018 passed by the 57th Additional City Civil and Sessions Judge, Mayo Hall Unit at Bengaluru, in O.S. No.26160/2018 (for short, hereinafter referred to as the ‘trial Court’). Before the trial Court, though all appeared except Defendant No.4 and the plaintiff prayed for an order under Order 39 Rules 1 & 2, the Court has not passed any order. In the meantime, it is submitted by the learned counsel for the plaintiff that in earlier suit filed by the plaintiff in OS No.2029/2017, the

¶74

¶75

plaintiff has enjoyed ex-parte temporary injunction till the plaint was rejected by the trial Court under Order VII Rule 11 of CPC. Against that order, the plaintiffs have preferred an appeal before this court in RFA No.1602/2018 and this court has also affirmed the order passed by the trial Court. In view of the same the present OS No.26160/2018 is filed and an ex-parte order is sought against the Defendants. Defendant Nos. 1 to 3, who were caveators, taken notice and sought for time to file objections. In the meantime, the plaintiff has submitted that, taking advantage of the situation, the defendants have been taking robust activity in the suit schedule property to put-up construction. The photographs produced before this court shows that though some activities are being taken, but construction of any building as such has yet been made. Therefore, the construction is at the initial stage of excavation of mud.

¶76

(underlining by me)

¶77

¶78

5. In the above circumstances, I am of the opinion that Defendants – 1 to 3, who are Respondents – 1 to 3 herein are to be directed to maintain status-quo as on today till the trial Court passes orders on the application filed by the plaintiff under Order 39 Rules 1 & 2 of CPC.”

¶79

The petitioners and the respondents have produced the photographs in support of their respective contentions; in fact the petitioners had produced the photographs in the appeal, MFA 8499/2018. If the petitioners have produced the photographs to show that construction had come up to a certain level as on the date of suit, the respondent has produced the photographs to contend that as on 05.10.2018, what was in existence in the suit property was a small shed, the rest of the property was vacant,

¶80

however foundation laying work had commenced.

¶81

¶82

MFA 8020/2018 was disposed of on 04.10.2018. Therefore, as has been observed in MFA 8020/2018, the suit property was almost vacant with a small shed being in existence, this was the status. The construction seen in the petitioners’ photographs might have come up subsequently. If the petitioners contend that they had already undertaken construction and it had come up to certain level, it is not acceptable. It was their attempt to change the nature of the property. It is to be stated that if any party to the suit, either just before or after filing of the suit does something hurriedly in order to change the nature of the property with an ulterior motive for defeating the interest of his opponent in the suit, the court can take note of it for granting an order of temporary injunction or directing the parties to maintain status quo in order to balance the interest of litigating parties.

¶83

¶84

Even if the order in MFA 3775/2019 is seen,

¶85

it was observed that if the plaintiffs and the defendants were ordered to maintain status quo of the nature of the property as it existed on the date of suit it would protect the interest of the parties. In this case also the petitioners are directed not to take further construction in order to preserve the nature of the property. The review petitioners may say now that they do not claim any equity in case the respondent succeeds in his suit and that they may be ready to file an undertaking affidavit to that effect, but such undertakings cannot be encouraged when the respondents/defendants are found to have raised constructions with a view to defeating interest of the plaintiff.

¶86