Sri. Narasimhaiah Vs Sri. Channaiah @ Mugaiah

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 47927 OF 2019 (GM-CPC)

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BETWEEN:

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SRI. NARASIMHAIAH S/O LATE SRI. YADACHEGOWDANA NARASINGAIAH AGED ABOUT 54 YEARS, R/AT KADUBORANAHALLI VILLAGE HAMLET OF UJJANI VILLAGE HULIYURDURGA HOBLI KUNIGAL TALUK TUMKUR DISTRICT-572 101

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…PETITIONER

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(BY SRI.G.B.NANDISH GOWDA, FOR SRI.R.B.SADASIVAPPA, ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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SRI. CHANNAIAH @ MUGAIAH S/O LATE SRI. NARASIGOWDA AGED ABOUT 71 YEARS, R/AT KADUBORANAHALLI VILLAGE HAMLET OF UJJANI VILLAGE HULIYURDURGA HOBLI KUNIGAL TALUK TUMKUR DISTRICT-572 101

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…RESPONDENT

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(BY SRI.P.M.GOPI, FOR SRI.SIDDAMALLAPPA P.M., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED: 10.7.2019 PASSED BY THE COURT OF THE ADDITIONAL CIVIL JUDGE AND JMFC KUNIGAL AS FAR AS IT CONCERNS TO THE ORDERS ON THE APPLICATION FILED BY THE PLAINTIFF UNDER SECTION 94(C) AND (e) R/W SECTION 151 OF CPC IN O.S.NO.160/2018 VIDE ANNEXURE-A.

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the order passed in I.A.No.III filed by the plaintiff under Order 94 (c) and (e) read with Section 151 of CPC in O.S.No.160/2018 dated 10.07.2019 by the Additional Civil Judge & JMFC, Kunigal, the petitioner/ defendant is before this Court.

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The respondent herein who is the plaintiff had filed the suit seeking declaration that the plaintiff has got right of easement of prescription to use 'B' Schedule pathway to reach his residential house from Main Road and for consequential relief of permanent injunction restraining the defendant, his agent, his henchman, servant or anybody acting on his behalf obstructing the plaintiff from using the 'B' Scheduled Pathway to reach his residential house from Main Road in any manner.

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In the suit, the plaintiff had come up with two applications i.e., I.A.Nos.I and III. I.A.No.I is filed under Order XXXIX Rule 1 and

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2 of CPC, for grant of temporary injunction restraining the defendant, his agent, his henchman, servant or anybody acting

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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on his behalf, obstructing the plaintiff from using 'B' schedule pathway to reach his residential house from Main Road and further I.A.No.III is filed under 94 (c) and (e) read with Section 151 of CPC, to restrain the defendant from putting up any construction over the suit 'B' schedule property till disposal of the suit.

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The trial Court by order impugned had allowed both the applications. Against an order granting injunction in I.A.No.I, the defendant had filed M.A.No.18/2019 which came to be dismissed by order dated 26.06.2024 confirming the order passed by the trial Court in I.A.No.I dated 10.07.2019. Against the order passed in I.A.No.III filed under 94 (c) and (e) read with Section 151 of CPC, the defendant is before this Court. The trial Court while allowing the applications had observed that it is the specific case of the plaintiff that he is the absolute owner in possession of 'A' schedule property and he has been using 'B' schedule property as pathway to reach his house. Without having any right, title over the said 'B' schedule property, the defendant is obstructing the plaintiff to use 'B' schedule property and also attempting to put up construction over it.

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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According to the defendant, there is no such pathway

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as stated in the 'B' schedule property and the defendant has left 09 feet passage in the written statement schedule property for the use of cattle shelter. The trial Court further observed that O.S.No.79 of 2002 is filed by the petitioner herein who is the defendant in the suit against the respondent herein who is the plaintiff in the suit and it has been observed about existence of 12 feet road. Further, the trial Court observed that in the present suit, there is a dispute with regard to existence of pathway towards eastern side of the defendants property i.e., 'B' schedule property. Moreover, the defendant submits that he has left 9 feet passage for his domestic purpose. The trial Court observed that whether there is a existence of road or passage has to be decided only through full fledged trial by obtaining necessary reports. As observed in the previous suit i.e., O.S.No.79/2022 prima-facie it appears about the existence of 12 feet road towards eastern side of defendants property. The documents adduced by the plaintiff reveals that at this stage the plaintiff has made out a prima-facie case. As such, if the injunction order is not granted and if the defendant proceed with the construction over the 'B' schedule property, it may

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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lead to multiplicity of proceedings also cause hurdle to the plaintiff. On the other hand, if the defendant is restrained from any construction in the suit schedule 'B' property, no inconvenience would be caused and accordingly the trial Court had allowed both the applications filed by the plaintiff.

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Learned counsel appearing for the petitioner/defendant submits that the trial Court ought not to have passed any order invoking Section 94 (c) and (e) read with 151 CPC. It is submitted that there is perversity in the order passed by the Court. It is submitted that the Court ought to have recorded the reasons for granting the order. Learned counsel submits that the entire order is silent about the prima-facie case, balance of convenience and irreparable loss. Without even recording any reasons just like that for the sake of asking by the plaintiff, the Court had granted the relief. Learned counsel for the petitioner had relied on para No.11 of the judgement of the Andhra Pradesh High Court in case of Madduri Padmavathi Vs. Chintala Abhai¹ . He submits that in the light

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of the said order the discretion that is exercised by the Court and granting an order under Section 94 of the Act is contrary to

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1 1994 2 ALT 477

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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the facts as well as to the law and the order impugned needs to be set aside.

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Learned counsel appearing for the respondent/plaintiff submits that it is the case of the plaintiff that he has been using the pathway to reach his house. The defendant also admits that there is a pathway and he is using it to reach his cattle shed. Considering the earlier suit that is filed and the pleadings in the earlier suit, the trial Court had rightly observed that there is an existence of the pathway and if the injunction is not granted, it would cause loss to the plaintiff and if the defendant puts up any construction in the said pathway, it would cause lot of hardship to the plaintiff and no prejudice would be caused to the defendant and rightly granted injunction and rightly had allowed the application filed under 94 (c) and (e) read with Section 151 of CPC by restraining the defendants from putting up the construction. He submits that now the injunction that is granted by the Court is confirmed by the Appellate Court in M.A.No.18/2019 dated 26.06.2024 and no appeal is preferred

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against the said order. In these circumstances, the petitioner is not entitled for any relief from the Court and the writ petition is liable to be dismissed.

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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Having heard the learned counsels on either side, perused the entire material on record. Two applications are filed by the plaintiff i.e., I.A.Nos.I and III. I.A.No.I is filed under Order XXXIX Rule 1 and 2 of CPC and I.A.No.III is filed under Order 94 (c) and (e) read with Section 151 of CPC. As far as granting of injunction is concerned, the same is not impugned before this Court. The trial Court had given a finding that the plaintiff is entitled for injunction and against that the defendant had filed an appeal and the appeal is dismissed. Hence, both the Courts had concurrently held against the defendant and in favour of the plaintiff that he is entitled for injunction. The whole dispute in this case is about the schedule 'B' property which is a pathway. The existence of the pathway is not disputed by any of the parties. But according to the defendant, it is his personal property and he is using it to reach to his cattle shed. When the suit itself is with regard to the pathway and the existence of the pathway is admitted, the Court has come to the conclusion that it has to be decided whether there is a pathway that is used by the plaintiff or plaintiff has any right to that. The whole purpose of granting an interim injunction or any interlocutary order is to see that the interest

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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of the party who has come to the Court is protected. It is the contention of the learned counsel that the Court ought not to have passed an order under 94 (c) and (e) read with Section 151 of CPC.

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Learned counsel for the petitioner had relied on para No.11 of the judgment of the Andhra Pradesh High Court in case of Madduri Padmavathi referred supra. The Court in para No.11 on which heavy reliance is placed by the learned counsel for the petitioner had observed that the preconditions for exercising jurisdiction by the Court whether under Order 39 Rule 1 and 2 read with Section 94 (c) or under Section 151 are: (i) the petitioner has made out a strong prima facie case and balance of convenience. The power cannot be exercised by mere asking. If the Court grants an order without recording its finding on these preconditions, the order would suffer from error of jurisdiction. It is further submitted that the trial Court did not go into the question as to whether the petitioner has made out a strong prima facie case to entitle him to an order under Order 39 Rule 1 of CPC read with Section 94 (c) CPC or under Section 151 of CPC. Indeed the Court recorded that no order could be granted under Order 39 Rule 1 but proceeded to

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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pass an order under Section 94 (c) read with Section 151 of CPC. In the said decision, the Court has come to the conclusion that the order under revision does not satisfy the requirements of a valid order under Section 151 of CPC. In as much as the Court has not gone into the question as to whether the petitioner has established a prima facie case and balance of convenience lies in favour of the petitioner to entitle him to get an order of injunction restraining the respondent from the suit schedule property.

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According to the learned counsel for the petitioner in the light of the said order, even in this case also the prima facie ingredients are not satisfied as such, the trial Court went wrong in granting an order. In the very same judgement, the Court has observed that Section 151 of CPC preserves the inherent powers of the Court by providing "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Relying on the judgment of the Hon'ble Apex Court in case of Manohar

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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Lal Vs. Seth Hiralal² the Court observed that it is now well settled that where Order 39 does not apply, the Court has inherent power to grant injunction in appropriate cases in exercise of inherent power under Section 151 of CPC.

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In this case, admittedly, an injunction is granted which is now confirmed by the Appellate Court. When there is an injunction restraining the defendant from interfering with the usage of the pathway in scheduled 'B' property and unless and until an order is passed under Section 94 read with 151 of CPC preventing the defendant from raising any constructions in the suit 'B' schedule property, the purpose of granting injunction would not survive and the trial Court to meet the ends of justice has rightly considered and exercising the powers under Section 94 read with 151 of CPC has rightly allowed application and this Court finds no reasons to interfere with the order passed by the trial Court. Hence, this Court is passing the following order:

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ORDER

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i. Accordingly, the writ petition is dismissed .

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2 AIR 1962 SC 527

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NC: 2025:KHC:5312 WP No. 47927 of 2019

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ii. None of the observations made by this Court shall not be considered as an expression of this Court and the trial Court shall proceed with the matter independently.

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iii. All I.As. in this writ petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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MEG List No.: 1 Sl No.: 3

Sri. Narasimhaiah v. Sri. Channaiah @ Mugaiah

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Sri. Narasimhaiah v. Sri. Channaiah @ Mugaiah

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