Dismissed

Mr Roy Anthony v. Mr Tojo Abraham

Karnataka HC11 Feb 2022MFA/351/2022

Case brief

AI extract

What is this about?

This appeal challenged an order granting temporary injunctions restraining the appellant from cultivating agricultural land. The High Court found the agreement terminated, the respondent retained possession, and the injunction served no purpose. The appeal was dismissed without interference.

What did the court decide?

The order of temporary injunction allowing the respondent to restrain the appellant from cultivation was upheld, and the appeal was dismissed.

Mr Roy Anthony Vs Mr Tojo Abraham — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF FEBRUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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M. F. A. NO.351 OF 2022 (CPC)

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BETWEEN:

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MR. ROY ANTHONY S/O LATE A P ANTHONY AGED ABOUT 47 YEARS R/AT KAVALAKATHU HOUSE SASIMALA POST PULPALLI PADICHARA VILLAGE SULTHAN BATHERI TALUK WYANAD DISTRICT, KERALA 673 592.

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...APPELLANT

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(BY SRI. MUNIYAPPA, ADVOCATE)

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AND:

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MR TOJO ABRAHAM S/O P J ABRAHAM AGED ABOUT 60 YEARS R/AT KAINADY FARMS, MADDUR VILLAGE HANGALA HOBLI, GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT 571 111.

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….RESPONDENT

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(BY SRI. RAHUL DEV, ADVOCATE FOR C/R)

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THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED

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22.12.2021 PASSED ON I.A.NO.II AND VI IN OS.NO. 32/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, ALLOWING THE I.A.NO.II AND IV FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC.

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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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The appellant aggrieved by the order dated 22.12.2021 passed on I.A.No.II and VI passed in O.S.No.32/2021 by the Senior Civil Judge and JMFC, Gundulpet filed this appeal.

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Brief facts leading rise to filing of this appeal are as under:

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The respondent/plaintiff filed a suit for

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permanent injunction and damages against the appellant in O.S.No.32/2021. In the said suit, the respondent filed an application seeking for an order of temporary injunction restraining the

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appellant/defendant from carrying on agricultural operation in the suit schedule property and also filed

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an application seeking for an order of temporary injunction restraining the appellant from interfering with the peaceful possession and enjoyment of the respondent in the suit schedule property.

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2.1. In support of the application the appellant

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has filed an affidavit contending that the respondent has entered into an agreement for the purpose of cultivating the suit land for carrying out agricultural activities such as growing bananas and other vegetables in between the existing trees and plants vide agreement dated 24.11.2020. The period of licence was for four years commencing from 1.8.2020 to 31.7.2024. The appellant on the strength of the agreement, has invested huge amount in the land and planted banana crop in the suit land and also planted coffee plantation in the suit schedule property. Further it is contended that respondent has levelled the land and have planted banana and other

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vegetables without causing any damage or disturbance to the existing trees and other crops standing in the suit schedule property. It is further contended that the appellant after taking up the work has installed two drip irrigation system to the whole area of the land measuring 75 acres by investing huge amount and also fenced the land; taken care of soil management; installed power as well as solar draping and fencing the land to prevent the animals and other tress passers from entering into the schedule property and also sprayed fertilizers and other necessary activities from time to time. It is contended that the respondent has terminated the agreement vide notice dated 3.5.2021. After termination of agreement, the appellant was trying to interfere with the peaceful possession and enjoyment of the suit schedule property of the respondent. Hence, the respondent filed applications i.e. I.A.2 and 6 seeking

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the order of temporary injunction restraining the appellant from cultivating the suit schedule property and also restraining from interfering with the respondent's peaceful possession over the suit schedule property.

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2.2. The said application was opposed by the appellant/ defendant by filing objection to the said application wherein he has contended that he is in possession of the suit schedule property under an agreement dated 24.11.2020 executed by the respondent in his favour. Further it is contended that he has invested huge amount and planted banana trees and other vegetables in between the standing trees and also coffee plantation. It is further contended that the respondent/plaintiff has terminated agreement without assigning any reason and further if the appellant/defendant is restrained from cultivating the suit property, he will be put to

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irreparable loss. Further he prays to reject I.A.2 and also filed objections to I.A.6 reiterating the averments made in I.A.2 and prayed to reject the applicationI.A.2.

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2.3. The Trial Court after hearing the parties allowed the applications filed by the respondent/plaintiff. Hence, this appeal by the defendant.

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Heard learned counsel for the appellant and

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also the learned counsel for the respondent.

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Learned counsel for the appellant submits that the respondent executed an agreement in favour of the appellant for cultivating and carrying out agricultural activities in the suit schedule land. Further, he has planted banana trees, vegetables and also coffee plantation in the said land. He further submits that the appellant has invested huge amount.

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He further submits that now banana trees are ready for harvesting. At this stage, if injunction order is issued, the appellant would be put to irreparable loss which cannot be compensated in terms of money. He further submits that the Trial Court has committed in rejecting the application filed by the respondent. Hence, on these grounds he prays to allow the appeal.

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Per contra, learned counsel for the respondent/plaintiff submits that though the agreement was entered into between the appellant/defendant and respondent, the appellant has denied about the execution of the agreement and he further submits that the appellant has denied the ownership of the respondent and his family members in respect of the suit land and also disputing the measurement of the suit land. He further submits that the appellant has committed breach of contract.

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He further submits that the respondent has already issued notice of termination on 3.5.2021. After termination of agreement, the respondent is in peaceful possession and enjoyment of the suit schedule property. He submits that the appellant has not challenged termination notice issued by the respondent. He further submits that the Trial Court after considering the entire material on record has rightly passed the impugned order. He further submits that the impugned order passed by the Trial Court is just and proper and does not call for any interference. Hence, on these grounds he prays to dismiss the appeal.

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6. Heard and perused the records and

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considered the submissions of the learned counsel for the parties.

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It is not in dispute that the respondent is the

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owner of the suit schedule property. It is the case of the appellant that the appellant and respondent have executed an agreement for the purpose of carrying out agricultural activities in the suit schedule property. On the strength of the agreement, the appellant has planted banana trees, vegetables, coffee plantation and other trees. The respondent has issued the termination notice alleging that the appellant has committed breach of contract and accordingly, the respondent has terminated the agreement executed in favour of the appellant. The appellant has not challenged the said notice of termination issued by the respondent. Further the appellant is a licencee as per the agreement. The respondent has permitted the appellant to use the suit schedule property in a particular way and exclusive possession of the property is not transferred to the appellant. It is the

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contention of the respondent that the appellant has committed breach of condition and the appellant is using pesticides and chemicals which will affect normal growth and use of excess chemical fertilizer will pollute the soil and water sources besides hindering crop performance. On the said grounds, the respondent has terminated the agreement.

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The Trial Court has recorded a finding that the appellant has been using large quantity of pesticides and chemicals in the suit schedule property and further the respondent had already terminated the agreement and the same has not been challenged and further it has recorded a finding that respondent has made a prima facie case for grant of impugned order. Accordingly, the Trial Court has granted impugned order.

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From the perusal of the records, it is seen that the respondent has already terminated agreement. The agreement is not in force as on the date of filing the suit. Further, respondent has produced the records to show that respondent is in possession of the suit schedule property. While granting an order of temporary injunction, essential ingredients are required to be considered are prima facie, balance of convenience and irreparable loss.

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In the present case, the respondent has made out a prima facie case to establish that the respondent is in possession of the suit schedule property. Balance of convenience lies in favour of the respondent. When the agreement has already been terminated and still appellant is in possession of the suit schedule property cannot be accepted. If injunction is refused then, respondent will be put to irreparable loss. The Trial Court after considering the

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entire material on record is justified in allowing the applications filed by the respondent. I do not find any ground to interfere with the impugned order.

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Accordingly, the appeal is dismissed.

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In view of the dismissal of the appeal, pending I.A.s do not survive for consideration.

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SD/JUDGE

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Mr Roy Anthony v. Mr Tojo Abraham

Case brief

What is this about?

What did the court decide?

Mr Roy Anthony v. Mr Tojo Abraham

Case brief

What is this about?

What did the court decide?

What the court decided

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