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Judgment
The defendants 3 to 5 have filed the present writ
petition against the order dated 18.1.2016 passed on
I.A.No.2 made in R.A.No.40/2015, allowing the application
in-part, temporarily restraining the defendants from
causing interference with the peaceful possession and
enjoyment of ''A'' schedule property of the plaintiff, except
making use of the Gandhipete-Yenithadka road situated on
the ''A'' schedule property till the pending disposal of the
appeal.
The respondent No.1, who is the plaintiff before the
Trial Court, filed the suit for declaration and permanent
injunction against the defendants. After contest, the Trial
Court, by the judgment and decree dated 17.11.2015,
dismissed the suit. Being aggrieved by the judgment and
decree passed by the Trial Court, the plaintiff filed
R.A.No.40/2015. Along with the appeal, the plaintiff also
filed I.A. for temporary injunction under Order 39 Rule 1
and 2 read with Section 151 of the Code of Civil Procedure.
The Lower Appellate Court considering the application and
objections, by the impugned order dated 18.1.2016,
allowed the application in part and granted temporary
injunction restraining the defendants from causing
interference with the peaceful possession and enjoyment of
''A'' schedule property of the plaintiff except making use of
the Gandhipete-Yenithadka road situated on the ''A''
schedule property till the pending disposal of the appeal.
Hence, the present writ petition is filed.
I have heard the learned counsel for the parties to
the lis.
Sri.S.Vishwajith Shetty, the learned counsel for the
petitioners - defendants contended that the impugned order
granting temporary injunction is erroneous and contrary to
the material on record. He further contended that no
temporary injunction was granted during the pendency of
the suit in O.S.No.18/2015 and ultimately, the suit came to
be dismissed. Therefore, the Lower Appellate Court was
not justified in granting temporary injunction, for the first
time. He also contended that the Trial Court after
full-fledged trial has dismissed the suit holding that the suit
schedule property does not exists and the boundaries given
by the plaintiff are not correct. The Trial Court also held
that the road which the defendants used does not exist in
the schedule property, but it exists in survey No.69 and 70
of Koila village, Puttur Taluk. He further contended that the
material on record shows that the plaintiff has attempted to
close the approach road to the defendants'' house. When
that being the position, having regard to the finding of the
Trial Court, the Lower Appellate Court is not justified in
allowing the application for temporary injunction.
Therefore, he sought to quash the impugned order by
allowing the writ petition.
Per contra, Sri.S.Rajashekar, the learned counsel for
the respondent No.1 - plaintiff sought to justify the
impugned order and contended that by the impugned order
of the Lower Appellate Court, the defendants are permitted
to make use of the road. Therefore, he sought to dismiss
the writ petition.
Having heard the learned counsel for the parties, it is
not in dispute that the respondent No.1 - plaintiff filed the
suit for declaration and permanent injunction in respect of
the suit property. The suit was filed on 29.1.2008.
Throughout the proceedings, till the disposal of the suit,
that is, till 17.11.2015, there was no interim order of
temporary injunction. The suit came to be dismissed on
17.11.2015. Being aggrieved by the judgment and decree
of the Trial Court, the plaintiff filed R.A.No.40/2015 before
the Principal Senior Civil Judge and A.C.J.M., at Puttur, who
by the impugned order has granted temporary injunction on
18.1.2016. The said order passed by the Lower Appellate
Court was stayed by this Court on 8.2.2016. For more than
one and half year, the interim order is operating and now
an application is filed for vacating the interim order. The
fact remains that throughout the original proceedings, there
was no interim order in favour of the plaintiff and for the
first time, the Lower Appellate Court, by the impugned
order, granted temporary injunction restraining the
defendants to make use of the road.
In view of the above said facts without adverting to
the merits and demerits, it is suffice to direct the Lower
Appellate Court to decide the appeal itself on merits. Till
then, it is reasonable to direct both the parties to maintain
status quo as of today, till the disposal of the appeal.
In view of the aforesaid reasons, the writ petition is
disposed of. The Lower Appellate Court is directed to
dispose of the appeal in R.A.No.40/2015 as expeditiously as
possible, subject to cooperation of both the parties. Till the
disposal of the appeal, both the parties are directed to
maintain status quo, as of today.
Since the main matter itself is disposed of,
considering I.A.No.1/2017 for vacating interim order would
not arise. Accordingly, I.A.No.1/2017 is dismissed.