Disposed

Smt H N Swaranamma v. M B Vasudev

Karnataka HC24 Mar 2022WP/15515/2017

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging an interim order restraining construction. The Court held that the question of whether construction was completed is a fact requiring evidence, undecidable at this stage, and directed the trial court to dispose of the original suit within six months.

What did the court decide?

Writ petition disposed of; direction issued to Trial Court to dispose of Original Suit O.S.No.1072/2015 within six months.

Smt H N Swaranamma Vs M B Vasudev — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MARCH, 2022 BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.15515 OF 2017 (GM-CPC)

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BETWEEN:

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Smt. H.N.Swaranamma W/o Late Dr.R.S.Subbanna, Aged about 83 years. No.31/2, Temple Road, 1^st Cross, Jayalakshmipuram, Mysore.

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Represented by her GPA holder Major General Krishnakumar Murthy

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Since dead by LR

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1(a) Smt. Geetha Murthy, W/o.Maj.Gen. K.K. Murthy, Aged 66 years, R.31/2, 1^st Cross, Temple Road, Jayalakshmipuram, Mysore – 570012.

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.. Petitioner

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(By Sri. Datta Prasad, for Sri. Manmohan P.N., Advocate)

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AND:

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M.B.Vasudev S/o Late Beggegowda, Aged about 76 years.

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W.P.No.15515/2017

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Rathna Vasudev W/o M.B.Vasudev

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Aged about 69 years.

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Both R/at No.31/2, Temple Road, 1^st Cross, Jayalakshmipuram, Mysuru.

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.. Respondents

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(By Sri.Akash Kumar Gowda for Sri. Narendra D. Gowda, Advocate for R-1 and R-2)

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This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 01-03-2017 passed in M.A.No.127/2015 by the Court of the III Additional Senior Civil Judge and CJM, Mysuru (Annexure-“H”) and consequently dismiss M.A.No.127/2015 etc.,

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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O R D E R

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The present respondents as plaintiffs have filed O.S.No.1072/2015, against the present petitioner

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arraigning her as defendant No.1, in the Court of the First Civil Judge (Jr.Dn.) at Mysore, (hereinafter for brevity referred to as “the Trial Court”), seeking the relief of permanent injunction, restraining the present petitioner

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W.P.No.15515/2017

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from putting up construction on the South-Eastern side of the suit schedule “B” property and consequently for a mandatory injunction, directing the first defendant therein (petitioner herein) to demolish the alleged illegal construction or to direct the second and third defendants in the original suit to demolish the illegal construction said to have been put up on the South-Eastern side of the suit schedule “B” property.

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In the said suit, the plaintiffs therein (respondents

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herein) had filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as ”the CPC”) for the relief of temporary injunction. However, the said application came to be rejected. Aggrieved by the same, the plaintiffs in the Original Suit preferred a Miscellaneous Appeal in M.A.No.127/2015, in the Court of the III Additional Senior

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Civil Judge and Chief Judicial Magistrate, Mysore, which Court, after hearing both side, by its judgment dated 01-03-2017, allowed the miscellaneous appeal. While

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W.P.No.15515/2017

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setting aside the impugned order of the Trial Court, passed on I.A.No.1 filed under Order XXXIX, Rules 1 and 2 of the CPC, it restrained the defendant No.1 in the suit (petitioner herein) from putting up any illegal construction over the suit schedule “B” property, till the disposal of the Original Suit. Challenging the same, the defendant No.1 in the Original Suit has come up before this Court in this writ petition.

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Heard the arguments from the learned counsels from both side.

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Learned counsel for the petitioner (defendant No.1) though submits that as could be seen in Annexure J, which is the Building Completion Certificate, the entire construction was completed prior to 10-03-2016, as such, the impugned order does not sustain, still he concedes that, he is not sure as to whether the said contention was taken up in the Trial Court and that whether Annexure-J was placed before the Court.

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W.P.No.15515/2017

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On the other hand, the learned counsel for the respondents (plaintiffs) submits that, taking advantage of the interim order passed in this matter, by this Court, the petitioner has completed the construction.

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However, both side learned counsels submit that the alleged construction is complete, as such, no activity of any construction by the petitioner herein is due or that any order of restrainment would have no further implication in the matter.

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In the above circumstance, I am of the view that since admittedly the alleged construction is said to have been already completed, but when the said construction is said to have been completed, being only a question of fact, which has to be decided upon only after recording the evidence in that regard, this Court, in this writ petition, and upon the available records, cannot decide the said aspect. As such, keeping open the said question to be decided, if found necessary, by the Trial Court, the writ petition may be disposed of, however, with a direction to the Trial Court

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W.P.No.15515/2017

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to dispose of the Original Suit at the earliest but not later

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than six months from today.

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It is ordering accordingly, the writ petition stands disposed of.

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Sd/JUDGE

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BMV*

Smt H N Swaranamma v. M B Vasudev

Case brief

What is this about?

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Smt H N Swaranamma v. M B Vasudev

Case brief

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