Partly allowed

Mrs. K. Padmaja Girish v. Smt. Shwetha. H. N.

Karnataka HC1 Dec 2022MFA/5590/2022

Case brief

AI extract

What is this about?

Appeal against temporary injunctions granted to plaintiffs. The High Court modified the injunction to allow appellants (defendants) to complete BBMP-sanctioned construction subject to the final suit outcome, recording an undertaking that they would not claim equity if the suit fails.

What did the court decide?

Modification of temporary injunction to permit appellants to complete sanctioned construction pending final decree, conditional on their undertaking not to claim equity if they lose the suit.

Mrs. K. Padmaja Girish Vs Smt. Shwetha. H. N. — Property and Title | Karnataka HC (2022)

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MFA No. 5590 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 5590 OF 2022 (CPC)

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BETWEEN:

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MRS. K. PADMAJA GIRISH, W/O. MR. S. GIRISH, AGED ABOUT 44 YEARS, R/AT NO. 6, 80 FEET ROAD, GIRINAGAR, BANGALORE-560 085.

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MRS. SUHASINI W/O. MR. M. ARUN PRAKASH, AGED ABOUT 36 YEARS, R/AT HITTALAKOPPA VILLAGE, KAVANCHUR, UTTARA KANNADA DISTRICT-581 355.

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…APPELLANTS

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[BY SRI. V.B.SHIVAKUMAR, ADVOCATE (PH)]

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AND:

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Digitally signed by 1. SMT. SHWETHA. H. N., GURURAJ D W/O. MR. HARISH. H. K., Location: High Court Of Karnataka AGED ABOUT 33 YEARS, NOW R/AT NO. 1521, 15^TH MAIN ROAD, M.C. LAYOUT, VIJAYANAGAR, BANGALORE-560 040.

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PRESENTLY RESIDING AT MEGALAMANE VILLAGE,

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MFA No. 5590 of 2022

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KAREHALLI HOBLI, CHANNARAYAPATNA HOBLI, HASSAN DISTRICT-573 131.

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MR. K. N. RAMACHANDRA S/O. MR. S. NANJEGOWDA, AGED ABOUT 55 YEARS, R/AT NO. 83, 9^TH CROSS, 17^TH MAIN ROAD, F.F. LAYOUT, LAGGERE, BANGALORE-560 058.

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MR. K. S. PRASANNA KUMAR S/O. LATE SRIKANTACHAR, AGED ABOUT 46 YEARS, R/AT NO. 83, 9^TH CROSS, 17^TH MAIN ROAD, BANGALORE-560 058.

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…RESPONDENTS

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[BY SRI. B.KESHAVAMURTHY, ADVOCATE FOR C/R1 (PH)]

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THIS MFA FILED U/O.43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DT.18.07.2022 PASSED ON IA NO.1 AND 2 IN O.S.NO.26161/2022 ON THE FILE OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, (CCH-73), ALLOWING IA NO.1/2022 AND 2/2022 FILED U/O.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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MFA No. 5590 of 2022

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JUDGMENT

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Challenging impugned order dated 18.07.2022, passed by LXXII Addl. City Civil & Sessions Judge, Mayo Hall, Bengaluru (CCH-73) in O.S.no.26161/2022 on I.A.No.1 and 2 of CPC filed under Order XXXIX rule 1 and 2 CPC, this appeal is filed.

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Appellant herein was defendants no.3 and 2, while respondent no.1 herein was plaintiff; respondent no.2 herein was defendant no.1 and respondent no.3 herein was defendant no.1. They will be referred to as such herein.

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O.S.no.26161/2022 was filed by plaintiff against defendants for relief of declaration, possession and permanent injunction etc., in respect of suit schedule properties.

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In said suit, plaintiff filed I.A.no.1 under Order XXXIX rule 1 and 2 of CPC for temporary injunction restraining defendants no.2 to 4 from alienating/encumbering or creating charge over suit schedule 'C' and 'E' properties. Likewise, I.A.No.2 was filed for restraining defendants no.2 and 3 from putting up construction over suit schedule 'C' and 'E' properties.

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MFA No. 5590 of 2022

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On consideration of said applications, trial Court under impugned order allowed applications and granted T.I. as prayed.

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Assailing same defendants no.3 and 2 are in appeal.

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Sri. V.B. Shivakumar, learned counsel for defendants no.3 and 2 propounded several contentions against impugned order. Even Sri. B. Keshavamurthy, learned counsel for plaintiff sought to sustain impugned order on several substantial contentions.

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During course of submission, it was submitted that defendants no.2 and 3/appellants had begun construction and therefore, they may be permitted to complete construction subject to final decree to be passed in suit.

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Said submission was opposed by learned counsel for plaintiff on ground that disposal of suit may consume time and defendants may dilate suit.

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On perusal of impugned order, it is seen that trial court has observed that plaintiff had made out case for trial and as there was genuine dispute about interest of parties in suit

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MFA No. 5590 of 2022

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schedule properties and on ground that construction initiated by defendants was still in initial stage, plaintiff was entitled for temporary injunction.

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During course of pendency of this appeal, appellants no.1 and 2 have filed affidavit undertaking along with building permission granted by BBMP for construction and also photographs indicating present status of constructions. Both appellants have stated that they would participate in trial Court proceedings without seeking unnecessary adjournments and further undertaking that, in case, trial Court were to hold that plaintiff did not have title or possession over suit property on basis of plaintiffs' claim defendants no.3 and 2 would not claim equity and subject to such undertaking, they may be permitted to complete construction.

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Considering fact that construction over suit property by defendants no.3 and 2 is incomplete and same may subject defendants to grave hardship, impugned order would require modification.

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MFA No. 5590 of 2022

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In light of above circumstances, recording

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undertaking of defendants no.3 and 2, appeal could be disposed of. Hence, I pass following:

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ORDER

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Appeal is disposed of by modifying impugned order dated 18.07.2022, passed by LXXII Addl. City Civil & Sessions Judge, Mayo Hall, Bengaluru (CCH-73) in O.S.no.26161/2022 on I.A.No.1 and 2 of CPC filed under Order XXXIX rule 1 and 2 CPC, only to extent of permitting defendants no.3 and 2 to complete construction as per sanctioned plan issued by BBMP which would subject to final result of suit and without defendants claiming equity, in case result of suit goes against them.

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Trial Court is also directed to expedite trial in accordance with law, without giving unnecessary adjournments.

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Both parties are directed to co-operate for early disposal

of suit.

Sd/-

JUDGE

Psg*

Mrs. K. Padmaja Girish v. Smt. Shwetha. H. N.

Case brief

What is this about?

What did the court decide?

Mrs. K. Padmaja Girish v. Smt. Shwetha. H. N.

Case brief

What is this about?

What did the court decide?

What the court decided

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