M. Ramaiah and Others vs State Government of Karnataka, Commissioner and Executive Officer

A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 06.02.2013, which is impugned at Annexure-J to the petition. By the said order the respondents have taken a decision to demolish the dilapidated construction, which exists on the property No. 25/33 and property No. 26/34. The petitioners contend that they have right in respect of property bearing No. 25/33 and in the circumstance have assailed the said order. In the instant petition, the petitioners in order to contend that they are owners of the property have made reference to the interse suit filed between the family members in O.S. No. 727/2006 and also to the extracts. The respondents by filing their objection statement have disputed the contention of the petitioner with regard to the ownership of the property.

In such situation, the consideration of right relating to immovable property wherein certain disputed questions are raised would have to be adjudicated by a Civil Forum based on the evidence that would be tendered with regard to ownership of the property. In the instant case, in addition to the contention put forth by the respondents with regard to their right to demolish the dilapidated construction, since according to them the property belongs to the Muzurai temple, they have also brought on record the plaint copy filed in O.S. No. 184/2013. The same is produced at Annexure-R1. A perusal of the same would indicate that the petitioners herein had filed the said suit on 06.03.2013 i.e., prior to the filing of instant petition on 14.03.2013. The pleadings would disclose that except for the fact that the order at Annexure-J being assailed, the contentions are with regard to the attempt of the respondents to demolish the structure existing therein and in that context, the petitioners herein who are the plaintiffs have sought for permanent injunction. Since initially it was filed as a suit for permanent injunction and the petitioners contend that they have now come to know of the order at Annexure-J, the petitioners could have assailed the said order also by seeking for an appropriate relief in the said suit and could not have instituted a fresh petition before this Court, more particularly where there are certain disputed questions of fact relating to title. Therefore, I am of the opinion that it would appropriate for this Court to permit the petitioners to put forth the contention in the pending suit O.S. No. 184/2013, if need be after amending the suit suitably to assail the order at Annexure-J. In that view the correctness or otherwise of the order at Annexure-J would not arise for consideration herein

Having arrived at the above conclusion, what is also to be noticed is that this Court at the first instance had granted interim stay of Annexure-J which in effect was to stay the demolition and the said order has been in force from 15.03.2013. It is not in dispute that the petitioners have also filed an application under Order 39 Rules 1 and 2 of CPC before the Court below in O.S. No. 184/2013, which is pending consideration. Hence, the benefit of the interim order granted by this Court to maintain the status quo as it exists as on today would be available to the petitioners till the application in O.S. No. 184/2013 is considered and disposed of on its merits.

However it is made clear that the trial Court shall not be influenced by the fact that the interim order had been granted in this petition, but would consider the application on its own merits depending on the contentions which would be put forth on the said application. Since the parties have already appeared before the Court below if the petitioner desires any amendment of the plaint, the same shall be completed forthwith and in any event the injunction application pending in O.S. No. 184/2013 shall be considered and disposed of as expeditiously as possible, but not later than three months from the date on which a copy of this order is furnished to the Court below. It is further made clear that this Court has not expressed any opinion on the rival claims and the Court below will consider the matter in accordance with law.

The writ petition stands disposed of in the above terms.