K. Dayananand vs Manjegowda

A.S. Bopanna, J.—The petitioner is before this court assailing the order dated 13/8/2014 passed in M.A. No. 62/2013.

The petitioner herein is the plaintiff in O.S. No. 254/2012. The suit is filed against the defendants therein seeking judgment and decree of declaration in respect of suit ''A'' schedule property and for consequent relief of mandatory injunction in respect of ''B'' schedule property. In the said suit, the plaintiff had also filed an application under Order 39 Rule 1 and 2 of CPC seeking interim order of temporary injunction. The Trial Court by its order dated 8/8/2013 had allowed the application and the defendants were restrained from carrying out any further construction in the ''B'' schedule property. The first defendant claiming to be aggrieved by the same, was before the Lower Appellate Court in M.A. No. 62/2013. The Lower Appellate Court, by its judgment dated 13/8/2014, had allowed the appeal and set aside the order passed by the Trial Court. It is against the said order, the petitioner is before this court.

The learned counsel for the petitioner, while assailing the order of the Lower Appellate Court, would contend that the Lower Appellate Court, without appreciating the matter in its correct perspective, though the Trial Court had taken into consideration all aspects of the matter, has thereafter arrived at a wrong conclusion and has allowed the appeal. It is his case that an extent of the property shown in ''B'' schedule property belongs to the plaintiff and the defendants without any manner of right are seeking to put up construction therein. If such construction is put up, the right as claimed by the plaintiff in respect of ''A'' schedule property in the suit, would be defeated. It is his case that the Lower Appellate Court has arrived at such conclusion only with an observation that the plaintiff has not relied on any document in that regard.

The learned counsel for the respondent/caveator would seek to sustain the order passed by the court below by relying upon the objection statement filed to this petition.

In the light of the contentions, I have perused the order passed by the Trial Court and also the Lower Appellate Court. It is no doubt true that the Trial Court, at the first instance, had granted injunction by taking note of the material that was available before it, namely the sale deed dated 9/9/1983 and the tax assessment register. The Lower Appellate Court, while arriving at the conclusion that the appeal is to be allowed, has also taken note of the documents which were relied on by the appellant therein. In any event with regard to the rival claim relating to the schedule ''B'' property, it would have to be decided by the court below based on the evidence that would be tendered. All that arises for consideration at this juncture is as to whether the construction as being put up by the defendants, is to be restrained and whether the Lower Appellate Court was justified in allowing the appeal.

From the very prayer that has been made in the plaint, it would indicate that the defendant was in possession of the portion of the property as on the date of the suit and arrangement has been made for construction and the digging had been completed. The documents produced along with the objection statement would indicate that the construction put up is also at an advanced stage and therefore in such circumstance when the aspect relating to balance of convenience is taken into consideration, if the construction is stayed at this juncture, the defendant would be put to loss. On the other hand even if ultimately the plaintiff succeeds in the suit, construction has to be, in any event, subject to result of the suit and therefore the right of the plaintiff, even at that stage, would not be defeated.

Hence, taking into consideration all these aspects of the matter, I am of the opinion that the Lower Appellate Court has not committed any error in its conclusion, so as to call for interference. However it is made clear that all observations made by the court below or this court would remain limited to the aspect relating to the temporary injunction and the Trial Court shall decide the suit on its merits based on the evidence that would be tendered. The decision will also be taken by the court below in an expeditious manner.

In terms of the above, the petition stands disposed of.