Writ petition seeking quashing of interim injunction in a property suit where respondent claimed recroachment. Bench held no error in lower courts' view and rejected the petition, directing early disposal of the suit.
The writ petition was rejected; the trial court was directed to dispose of the suit on priority basis.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 4696 OF 2021 (GM-CPC)
BETWEEN:
SHEKHARA S/O THIMMAIAH, AGE ABOUT 52 YEARS, RESIDING AT BEHIND CHIKKAGARADI, K. G. ROAD, GANJAM, S. R. PATNA TOWN AND TALUK - 571477.
…PETITIONER (BY SRI R. SATISH CHANDRA FOR SRI. SRIDHARA D. R.,ADVOCATE) AND:
G. S. SOMASHEKARA S/O LATE M. G. SATYANARAYANA, AGE ABOUT 45 YEARS, RESIDING AT GOVERNMENT FISHERIES ROAD, GANJAM, S. R. PATNA TOWN AND TALUK - 571477.
Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA
…RESPONDENT (BY SMT. NANDINI K.R. FOR SRI. BHADRINATH R., ADVOCATE)
THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD. 05.03.2020 PASSED BY THE COURT OF ADDITIONAL SENOR CIVIL JUDGE, SRINRANGAPATNA IN M.A.NO.16/2019 AT ANNXURE-L. CONSEQUENTLY QUASH THE ORDER DTD.5.9.2019 ON APPLICATION FILED BY THE PLAINTIFF UNDER ORDER 39 RULES 1 AND 2 OF CODE CIVIL PROCEDURE CODE IN O.S.NO.187/2019 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC SRIRANGAPATNA ANENXURE-K.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GGROUO, THIS DAY, THE COURT MADE THE FOLLOWING:
NC: 2023:KHC:36691 WP No. 4696 of 2021
ORDER
The petitioner-defendant has filed this petition seeking to quash the order dated 05.09.2019 passed on an application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC in O.S.No.187/2019 by the Principal Civil Judge and JMFC, Srirangapatna and further prayer to quash the order dated 05.03.2020 passed by the Additional Senior Civil Judge, Srirangapatna, in MA.No.16/2009 whereby both the Courts have concurrently held that the respondent-plaintiff is entitled for temporary injunction against the defendant during the pendency of the suit.
NC: 2023:KHC:36691 WP No. 4696 of 2021
the foundation stone put up by him to the extent of 2 feet in the suit schedule property. The said suit is opposed by the petitioner-defendant by filing the written statement.
under Order XXXIX Rules 1 and 2 of CPC which came to be allowed by restraining the petitioner-defendant from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property. The said order has been assailed by the petitioner in M.A.No.16/2019. The Appellant Court vide Order dated 05.03.2020 has dismissed the appeal. Being aggrieved by both the orders the petitioner-defendant is before this Court.
of the plaintiff's property and further claims that there is encroachment of 5 feet over the vacant site of the plaintiff's property and such claim is contrary to the sanctioned plan produced by the plaintiff. It is submitted that on perusal of the sanctioned plan available on record, it is evident that, the plaintiff has put up the construction in the suit schedule property by leaving 1.1 meters towards defendant’s property as a set back which comes to approximately 4.35 feet, however, plaintiff is claiming that the petitioner defendant is encroaching 7 feet i.e., 2 feet of column and 5 feet thereafter. These discrepancies have not been properly considered by the Trial Court and Appellate Court and hence calls for interference of the present petition.
he seeks to set aside the impugned orders by allowing the writ petition.
site to an extent of 2 feet and 5 feet, towards the western side. Further, it is averred that, the petitioner-defendant is trying to encroach the property of the plaintiff-respondent and he has laid the foundation to the extent of 2 feet, which is liable to be removed and also trying to encroach remaining 5 feet of the vacant space of the plaintiff’s property. The said averments of the plaint are re-iterated in the application filed under order XXXIX Rules 1 and 2 of CPC.
averments of the plaintiff-respondent in the written statement as well as the objections filed to the application by contending that the petitioner-defendant has not encroached any portion of the suit property as alleged. On close scrutiny of the material available on record it is evident that the respondent-plaintiff has already put up the construction in the suit schedule property leaving set back towards western side of the suit schedule property, and towards western side of the petitioner's -defendant's
site is situated. The assertion of the respondent-plaintiff that the petitioner-defendant has encroached on the set back portion by trying to put up construction in the suit scheduled property is based on the material available on record and the Trial Court is required to look into the same while deciding the suit finally. This Court is of the view that the respondent-plaintiff has made out prima-facie case for grant of temporary injunction. This Court is of the considered view that, if the petitioner -defendant is permitted to put up the construction, before the completion of the Trial, the respondent - plaintiff would be put to great hardship and irreparable injury could be caused to him and it would defeat the very purpose of filing the suit by the respondent-plaintiff and also will lead to multiplicity of the proceedings between the parties.
clearly depicted that the plaintiff has left space towards western side of the suit schedule property wherein the door and windows are situated and the petitionerdefendant is put up the construction within the portion of the suit schedule property. This Court does not find any error in the aforesaid findings recorded by the Trial Court as well as the Appellate Court, calling for the interference in this petition. The respondent- plaintiff is required to prove his case by producing cogent and acceptable evidence to establish his case before the Trial Court and to get the decree sought in the suit and at this stage if petitioner is allowed to continue any construction it would cause great prejudice and hardship to the respondentplaintiff. For the reasons recorded supra, this Court does not find any merit in the present petition, accordingly, the same is rejected .
NC: 2023:KHC:36691 WP No. 4696 of 2021
respondent fairly submits that, the plaintiff would not take unnecessary adjournments before the Trial Court and would co-operate for the early disposal of the suit.
Sd/JUDGE
LDC List No.: 38 Sl No.: 5
2 issues framed by the court
Whether the High Court is justified in exercising its writ jurisdiction to quash the interim injunction granted in a property dispute.
Whether the lower courts committed error in finding a prima facie case and granting injunction restraining the petitioner from construction.
SHEKHARA S/O THIMMAIAH
G. S. SOMASHEKARA
VIJAYKUMAR A. PATIL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
