Allowed

Smt Annapurna v. Sri R Chandraiah Setty

Karnataka HC4 Dec 2021WP/16158/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka considered a writ petition seeking to quash an order issuing an emergent notice for an injunction application. The court held that the petitioner failed to disclose material facts and statements made prior to the suit. Consequently, the writ petition was allowed, disallowing the continuation of the interim order.

What did the court decide?

Writ petition allowed; continuation of interim order restraining respondents from construction is disallowed; petition disposed.

Smt Annapurna Vs Sri R Chandraiah Setty — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE B M SHYAM PRASAD

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WRIT PETITION No.16158 OF 2021 (GM-CPC)

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BETWEEN

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SMT. ANNAPURNA W/O. R. NARAYANASWAMY AGED ABOUT 60 YEARS, R/AT DOOR NO.83 ASHOKA NILAYA, DHARMARAYASWAMY TEMPLE STREET, KATRIPALYA, KOLAR CITY-563 101.

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... PETITIONER

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[BY SRI. D.R. RAVISHANKAR, ADVOCATE]

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AND

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SRI. R. CHANDRAIAH SETTY S/O. LATE R. RAMAIAH SHETTY AGED ABOUT 66 YEARS

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SRI. R. KRISHNAIAH SETTY S/O. LATE R. RAMAIAH SHETTY AGED ABOUT 65 YEARS

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BOTH ARE RESIDING AT KATRIPALYA MAIN ROAD, DHARMARAYASWAMY TEMPLE STREET, KOLAR CITY-563 101.

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….RESPONDENTS

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[BY SMT.VAKKUND SONATAI GANAPATRAO, ADVOCATE]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-A DATED 03.08.2021 PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE AND JMFC, AT KOLAR, IN O.S.NO.358/2021 BY ISSUING EMERGENT NOTICE ON I.A.NO.1 UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF C.P.C. AND BY DISMISSING I.A.NO.II UNDER ORDER 39 RULE 3 OF CPC FILED BY THE PETITIONER VIDE ANNEXURE-G AND H & ETC.,

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.D.R.Ravishankar, the learned counsel for the petitioner and Smt.Vakkund Sonatai Ganapatrao, the learned counsel for the respondents, are heard for final disposal of the petition with their consent.

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The petitioner is the plaintiff in OS No.358/2021 on the file of the Principal Civil Judge and JMFC, Kolar (for short, "the civil Court "). The petitioner has impugned the civil Court's order dated 03.08.2021. The civil Court, by this impugned order, while issuing suit summons to the respondents [the defendants] has only issued emergent notice on the petitioner's

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application in I.A.No.1 under Order XXXIX Rule (1) and (2) of Code of Civil Procedure (for short, 'the CPC') for restraining the respondents from digging up foundation on the northern side of suit schedule property until the disposal of the suit.

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This Court on 03.09.2021, recording the petitioner's case as presented, has restrained the respondents from putting up construction on the Southern boundary of the respondent's property in an area measuring 3 feet North to South and 27 feet East to West. The parties have filed elaborate pleadings before this Court which also comprises of an application [I.A.No.1/2021], a statement of objections, a rejoinder statement and respective documents.

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The petitioner and the respondents claim

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their respective title to, and possession of, two adjacent properties claiming under the common earlier owners. The petitioner contends that in a partition effected

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between the two brothers, Sri.Ramaiah Shetty @ Sri.Thulasiramaiah Shetty and Sri.Radhakrishnaiah Shetty, a larger property measuring 69½ feet North to South and 28 feet East to West is partitioned between them, and an area along the Southern boundary measuring North to South 4 feet and East to West 69½ feet is identified as conservancy/common access. The petitioner further asserts that Sri.Radhakrishnaiah Shetty has later transferred to his vendor a portion of the property allotted to him stating that he is entitled for ownership of such conservancy measuring 3 feet x 28 feet in the aforesaid conservancy on the Southern side. The petitioner asserts that she has accordingly purchased the suit schedule property with the conservancy to its Southern boundary, and the respondents, who claim under the other brother, Sri.Thulasiramaiah Shetty, are putting up construction encroaching this conservancy.

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The respondents rely upon a partition deed

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executed on 17.08.1990 asserting that they are brothers and they are allotted an area measuring 36 feet East to West and 11 feet North to South. They have been paying taxes for this extent and they have also obtained necessary sanction from the local authorities for construction. The respondents also assert that they are constructing only in this extent of 36 feet x 11 feet. Crucially, the respondents dispute the petitioner’s description of the suit schedule property and deny the allegations of encroachment.

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The merits of the rival claim for the purpose of continuation of the grant of temporary injunction will have to be necessarily examined by the civil Court, and the questions for consideration in the present petition are:

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(i) Has the civil Court issued emergent notice on the petitioner's application for temporary injunction under

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Order XXXIX Rule (1) and (2) of CPC without considering the question of delay defeating the prayer for injunction, and

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(ii) If the civil Court has indeed issued the emergent notice without considering the question of delay defeating the grant of injunction, should the interim order granted by this Court continue while the petitioner's application for temporary injunction is decided by the civil Court?.

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Sri.D.R.Ravishankar, while reiterating the plaint averments, seeks to place reliance on the sale deed dated 13.07.1961 executed in favour of the petitioner’s vendor by Sri.Radhakrishna Shetty and his sons, a rough sketch as also the partition deed of the year 1958-59 between Sri.Radhakrishna Shetty and his brother Sri.Ramaiah Shetty @ Sri.Thulasiramaiah Shetty. He, relying upon these documents, asserts that the petitioner is able to establish prima facie case , even

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at the threshold, that if the respondents continue with the construction, the petitioner's prayer not only for temporary injunction but also for permanent injunction would be defeated.

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As against these submissions, Smt.Vakkund Sonatai submits that the reference to the partition deed for the year 1958-59 and the later sale deed dated 13.07.1961 for the first time before this Court, in the contest of the petitioner’s prayer in this petition, should not be permitted; the petitioner could succeed in his case before this Court only if there is a reference to these deeds and the case as now presented in the plaint. She points out that the plaint is entirely silent about these documents.

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Significantly, Smt.Vakkund Sonatai, placing reliance upon the rejoinder filed by the second respondent in response to the petitioner's statement of objections to the respondents’ application in IA

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No.1/2021, emphasizes that there is some ill-will between the petitioner’s husband and a relative of the respondents and they are embroiled in some litigation. The respondents to avoid a conflict approached the petitioner’s husband, but he put off the respondents asserting that the he had the benefit of an interim order when in fact she had not even filed the suit. Later, the respondents were constrained to approach the jurisdictional Police because of the petitioner's conduct and before the jurisdictional Police, the petitioner’s husband signified his assent for the construction by the respondents in their property measuring 36 feet x 11 feet and the respondents have accordingly started construction. Smt.Vakkund Sonatai argues that these material circumstances should also have been detailed in the plaint before this court; in the absence thereof, it would be indisputable that the petitioner has suppressed material circumstance.

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The impugned order reads as under:

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"Learned Advocate for plaintiff present. Heard. Learned Advocate for plaintiff on I.A.No.I and II.

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On hearing learned advocate for plaintiff and on going through plaint averments, documents annexed, I am of the opinion that it is just a necessary to hear defendants before passing orders on I.A.No.I, I.A.No.II filed U/o XXXIX Rule 3 of CPC is hereby dismissed."

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It is trite that, given the provision of Order

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XXXIX Rule (1) and (2) of CPC, the issuance of notice on the interlocutory application under Order XXXIX Rule (1) and (2) of CPC is the general Rule, but when a case is made out for grant of ad-interim ex-parte injunction viz ., that the delay would defeat the object of granting injunction, the Courts could grant such ex-parte injunction but recording its reasons for the same. A

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useful reference in this regard could be made to the decision of this Court in Vedant Fashions Pvt Ltd vs Smt. Rajul Devi¹ wherein it is held:

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A bare reading of the said rule makes it clear that normally, the court, before granting an injunction, direct notice of the application to be given to the opposite party. The exception is, where it appears that the object of granting injunction would be defeated by delay, in such an event, the proviso which has been inserted with effect from 01/02/1977 comes into operation, where the court is empowered to grant an ad interim injunction dispensing with notice provided reasons are recorded for its opinion to the effect that the object of granting the injunction would be defeated by delay if notice is to be served on the respondent.

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12. It is obvious from the impugned order that despite a prayer for ad-interim ex-parte injunction, the civil Court has not considered the question of delay and the impact of the refusal of the petitioner's request for

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1 2014 SCC Online Kar. 7191

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temporary injunction . Therefore, the first question must be answered accordingly, and the next question taken up for consideration. This Court must consider this question in the light of the settled law that the petitioner who invokes the jurisdiction of this Court under Article 227 of the Constitution of India, as also the jurisdiction of civil Courts under Order XXXIX Rule (1) and (2) of CPC, for ex-parte temporary injunction must satisfy the rule of utmost good faith . In this regard, this Court must rely upon decision of the Hon'ble Supreme Court in the Morgan Stanley Mutual Fund Vs Dr. Kartick

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Das² .

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The petitioner in the plaint is cryptic on the cause of action. The petitioner only states that on 15.07.2021 the respondents came to the schedule property and started digging illegally on the Northern side of the suit schedule property encroaching an extent measuring 3 feet without even a licence from the local 2 (1994) 4 SCC 225

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authority. This gives an impression that there are no conversation or exchange antecedent to the date of the suit, while the respondents refer to the conversation with the petitioner's husband for joint measurement of the adjacent property and subsequent conversation before the jurisdictional police with the petitioner's husband signifying his assent for construction by the respondents. In this regard, they have referred to the acknowledgment issued by the jurisdictional police on 23.07.2021.

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This Court must opine that the petitioner, who is enjoined with the obligation to adhere to the rule of utmost good faith , should have placed on record all the circumstance including conversation and exchange of the proceedings prior to the commencement of the suit. This Court would therefore, hold that the petitioner is not entitled for continuation of the interim order restraining the respondents from construction,

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and this Court must also observe that if the respondents proceed to put up construction, they shall do so at their own risk and consequence and subject to the orders of the civil Court. It would be needless to observe that the civil Court should examine the merits of the petitioner’s application independent of any observation in this order as it is confined to examining the merits of the petitioner’s request for continuation of

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the ex-parte injunction granted by this Court.

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The petition stands disposed of accordingly.

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SD/JUDGE

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Smt Annapurna v. Sri R Chandraiah Setty

Case brief

What is this about?

What did the court decide?

Smt Annapurna v. Sri R Chandraiah Setty

Case brief

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