Satyanarayan vs Leelavati and Others

B. Veerappa, J—The plaintiff filed the above writ petitions against the impugned order dated 25.04.2015 made in MA No. 6/2013 on the file of the II Addl. Senior Civil Judge, Hubballi, confirming the order dated 03.01.2013 on I.A. No. II made in O.S. No. 1264/2012 on the file of the I Addl. Civil Judge, Hubballi, dismissing the application filed by the plaintiff for injunction.

Petitioner/plaintiff filed the suit for declaration and permanent injunction contending that he is the absolute owner and in possession of the suit schedule properties, etc. The defendants filed written statement and denied the entire plaint averments and their claim is based on the permanent lease-hold rights.

During the pendency of the suit, the plaintiff also filed I.A. No. II under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short ''CPC'') for temporary injunction, restraining the defendants from alienating, transferring, creating charge, lien or executing any agreement/undertaking for commercial apartment, construction in respect of the suit schedule properties, pending disposal of the suit. The said application was resisted by the defendants by filing objections.

After considering the entire material on record, the trial court by its order dated 03.01.2013, recorded a specific finding that the plaintiff has not made out any prima facie case and balance convenience is not in his favour and no hardship will be caused to the plaintiff, if the interim order is not made absolute.

Against, the said order, the plaintiff filed M.A. No. 6/2013 before the II Addl. Senior Civil Judge, Hubballi, who after hearing both the parties by his impugned order, dated 25.04.2015 has dismissed the appeal, confirming the order passed by the trial court holding that the appellant failed to prove that the impugned order passed by the trial court is contrary to law and facts, and he has not made out any case for interference. Against the said concurrent finding of fact, the present writ petitions are filed.

I have heard the learned counsel for the parties to the lis.

Sri. Mahesh Wodeyar, learned counsel for the petitioner, mainly contended that in pursuance of the impugned orders passed by the Courts below, it is the apprehension of the plaintiff that the defendants may alienate the entire suit schedule properties, which consists of commercial shops and residential flats and ultimately, it renders the suit itself infructuous. Therefore, the impugned order passed by the Courts below are liable to be set aside.

Per contra, Sri. Prakash K. Jawalkar, learned counsel for the respondents, sought to justify the impugned orders and contended that both the courts concurrently held that the plaintiff has failed to prove prima facie case to establish his possession over the suit schedule properties and hence, the question of interference by this Court does not arise.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

It is not in dispute that the plaintiff filed the suit for declaration and permanent injunction contending that he is the absolute owner of the properties in question and defendants have no right in respect of the suit schedule properties.

Contrary to the said plaint averments, the defendants have taken a specific contention in the written statement and denied the plaint averments and contended that they are holding the permanent leasehold rights. Therefore, the plaintiff is not entitled to any relief before this Court.

The trial court, after considering the entire material on record has come to the definite conclusion that the plaintiff has not made out any prima facie case to grant temporary injunction and balance of convenience is not in favour of the plaintiff and he has not made out any case that too for granting the interim order till the disposal of the suit. The lower appellate court, concurring with the finding recorded by the trial court, has dismissed the appeal holding that the appellant has not made out any case for interfering with the discretionary order passed by the trial court while exercising the powers under Section XXXIX Rules 1 and 2 of CPC.

Both the courts below concurrently held that the plaintiff has failed to prove his possession as on the date of the suit. The said finding of fact cannot be interfered with by this Court under Articles 226 & 227 of Constitution of India.

However, the apprehension of the petitioner that in case the defendants alienate both commercial and residential plots, the very suit becomes infructuous, cannot be accepted at this stage, since it is well settled law that during the pendency of the proceedings, if any alienation is made by the defendants, the same will be hit by the provisions of Section 52 of the Transfer of Property Act, 1882, and the defendants shall not claim any equity in case the plaintiff succeeds in the suit.

With the above observations, the writ petitions are disposed of. However, it is made clear that any observations made by the trial court as well as the appellate court, while rejecting the application for temporary injunction, shall not influence the learned trial judge while passing the judgment and decree in the pending suit between the parties.