T.V. Keshava vs C.K. Puttappa

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 20.08.2014 passed in M.A. No. 33/2010 at Annexure-J to the petition.

The petitioner herein is the plaintiff in O.S. No. 938/2010. The suit instituted is one seeking for declaration and also for mandatory injunction and to recover possession of ''B'' Schedule property.

In the pending suit, the petitioner had also filed an application under Order 39 Rule 1 and 2 of CPC seeking grant of temporary injunction. The trial Court by its order dated 30.10.2010 had directed both the parties to maintain status-quo of the suit schedule property till the disposal of the suit. The defendant claiming to be aggrieved by the same had preferred an appeal before the Lower Appellate Court in M.A. No. 33/2010. The Lower Appellate Court by its order dated 20.08.2014 has vacated the order of status-quo by allowing the appeal. It is in that circumstance, the petitioner is before this Court.

Learned counsel for the petitioner while assailing the order passed by the Lower Appellate Court has referred to the order passed by the trial Court to contend that the trial Court after taking note of all relevant aspects of the matter had exercised its discretion to order status-quo so that the property could be preserved in the same nature till the suit is considered and disposed of in accordance with law. It is therefore contended that when such discretion had been exercised by the trial Court, the Lower Appellate Court could not have lightly interfered with such order.

It is also contended that the judgment of the Hon''ble Supreme Court in the case of Mohd. Mehtab Khan and Others Vs. Khushnuma Ibrahim and Others, cited by the petitioner herein before the trial Court had not been properly appreciated by the Lower Appellate Court and therefore, the Lower Appellate Court has arrived at a wrong conclusion. Hence, it is contended that the order of the Lower Appellate Court is liable to be set aside and the status-quo as ordered by the trial Court is to be restored.

In the light of the contentions put forth, at the first instance, I have perused the order passed by the trial Court on 30.10.2010. A perusal of the order would indicate that the trial Court was also of the view that the plaintiff by the documents relied on at pre-trial stage had not made out a prima case as pleaded. It is in fact subsequently stated that except the sale deed, plan, licence and khatha extract, the plaintiff has not made out a case with regard to the encroachment. Even that be so, the trial Court has arrived at the conclusion to direct the parties to maintain status-quo.

In that light, a perusal of the order passed by the Lower Appellate Court would indicate that the Lower Appellate Court on taking note of the judgment of the Hon''ble Supreme Court has thereafter assigned its reasons for which the interference with the order passed by the trial Court is necessary. In that regard, the Lower Appellate Court has taken into consideration the fact that the trial Court while ordering status-quo has not considered the tests which are required before passing an order of injunction. The Lower Appellate Court has observed that the trial Court without reference to the balance of convenience and the irreparable injury aspect has ordered status-quo. To that extent, it is indicated that in a circumstance where the trial Court itself has arrived at the conclusion that the plaintiff at the pre-trial stage had not made out a prima facie case and in that circumstance, when it is seen that the defendant had already put up construction upto the basement and the aspect relating to the encroachment is to be established and furthermore, in a circumstance where the plaintiff has sought for the relief of mandatory injunction, at this juncture the continuance of status-quo would not be justified. Such conclusion reached by the Lower Appellate Court is certainly after taking note of the factual position and also keeping in view the fact that the non-consideration of the legal aspects of the matter by the trial Court require interference at the hands of the Lower Appellate Court.

Therefore, in such circumstance, where the Lower Appellate Court has also indicated the nature of relief and has put the defendant on terms for filing an undertaking to that effect, the decision taken by the Lower Appellate Court at this juncture cannot be considered to be erroneous so as to call for interference in this petition.

Hence, the petition stands disposed of.