Jayachandra P. vs Muniakkayamma

B. Manohar, J.—Heard the learned counsel appearing for the parties and perused the order impugned and other relevant records.

Petitioners are the plaintiffs in OS No. 998/2010 on the file of the II Additional Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore. Being aggrieved by the order dated 1st March 2013 rejecting I.A. No. V filed under Section 151 of CPC by the plaintiffs, the petitioners have filed this writ petition.

The plaintiffs filed the suit seeking for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. In the plaint, it was contended that the plaintiffs are the absolute owners of the suit schedule property. The defendants are interfering with the same. In spite of complaint made to the police, the police have not taken action. The plaintiffs filed I.A. Nos. 1 and III under Order 39 Rules 1 and 2 of CPC. The Trial Court by its order dated 31.7.2012 (Annexure-F) granted an interim order of injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and restrained the 4th defendant from putting up construction on the eastern side of the suit schedule property till the disposal of the suit. Being aggrieved by the interim order granted by the Trial Court, the 4th defendant preferred MA No. 76/2012 on the file of the II Additional Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore. The lower Appellate Court after examining the matter in detail dismissed the appeal confirming the order passed by the Trial Court.

In spite of the order passed by the Court below, the defendants are trespassing and interfering with the peaceful possession of the suit schedule property and putting up illegal construction on the same. Hence, they made I.A. No. 5 under Section 151 of CPC seeking for police protection. However, I.A. No. 5 was dismissed by the Trial Court by its order dated 1.3.2013.

Sri G.S. Balagangadhar, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court is contrary to law. It is the case of the plaintiffs that in spite of interim order granted by the Trial Court, the defendants are continuing the illegal act of trespassing into and interfering with the peaceful possession of the suit schedule property and putting up construction. Though the Trial Court restrained the defendants from putting up construction on the suit schedule property, the police have not taken any action. The Trial Court by cryptic order dismissed the application on the ground that no such construction work is being carried out and there is a lot of gap between the property of the plaintiff and the property purchased by M/s. Vrindavan Shelters. In those circumstances, the question of giving police protection does not arise. Hence, the Trial Court rejected the application. The reasons assigned by the Trial Court are contrary to law. The Court below must protect the interim order passed by it and sought for quashing the order passed by the Trial Court.

On the other hand, the Advocate appearing for respondents argued in support of the order passed by the Trial Court.

I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused the order passed by the Trial Court.

In the suit filed by the plaintiffs, the Trial Court granted an interim order of injunction restraining the 4th defendant from putting up any construction. The said order has been confirmed by the lower Appellate Court. The allegation of the plaintiffs is that in spite of the order of injunction granted by the Court below, the defendants are proceeding with illegal construction of building in the suit schedule property. The Trial Court by its cryptic order rejected I.A. No. 5 filed under Section 151 of CPC seeking for police protection on the ground that there is lot of gap between the property of the plaintiffs and defendants and it is not the case of plaintiffs that the defendants have encroached upon the suit schedule property, hence giving police protection is unsustainable in law. It is the duty of the Court to enforce an interim order. Therefore, I think it appropriate to remit the matter to the Trial Court for re-considering the matter afresh and pass an order in accordance with law. Accordingly, I pass the following:

ORDER

The writ petition is allowed.

The order dated 1.3.2013 rejecting I.A. No. 5 filed in OS No. 998/2010 passed by the II Additional Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore vide Annexure-J is set aside.

The matter is remitted to the Trial Court to reconsider the same afresh and pass orders in accordance with law as expeditiously as possible.