V. Suresh Kumar and Others vs Koushika and Others

Anand Byrareddy, J.

Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.

The petitioners were defendants 4 and 5 in a civil suit in OS 26522/2013. The suit was filed by the first respondent seeking the reliefs of declaration and recovery of possession in respect of the suit schedule property, claiming that the plaintiff held title deeds to the suit schedule property. That by virtue of collusion between the defendants, certain title deeds were created much subsequent to the sale in favour of the plaintiff and the plaintiff was said to have been forcibly dispossessed as it was a vacant site though with a compound wall. Defendants 4 and 5 are said to have taken forcible possession of the suit schedule property and had commenced to drill a bore well. At that stage, the plaintiff was constrained to file a complaint with the police, as regards the criminal trespass. However, the Police did not choose to take any action and opined that it was a civil dispute which ought to be agitated before a civil court. Therefore, the plaintiff was constrained to file a civil suit seeking appropriate reliefs. The plaintiff had also filed an application for temporary injunction, which was contested by defendants 4 and 5 and the court below had granted the relief restraining defendants 4 and 5 from changing the nature of the suit schedule property and preventing them from putting up any further construction.

Defendants 4 and 5 are said to have filed an appeal in MFA 10326/2013 before this court. However, during the pendency of the appeal, on the pretext that there may be possibility of an amicable settlement, the matter was prolonged and the appeals were eventually withdrawn, which intent the learned Counsel for the respondents, stoutly disputes. It is thereafter that the present petitioners are said to have filed an application under Section 94(e) of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity) read with section 151 of the CPC. The said application having been rejected by the court below while noting the above circumstances and forming an opinion that there were no changed circumstances which warranted the modification of the earlier orders granted, the present petition is filed.

At the outset, it is pointed out by the respondents that the present writ petition is misconceived. The remedy available to the petitioners was either to seek modification of the impugned order, under Order XXXIX Rule 4 of the CPC, or to prefer an appeal. The petitioners having already preferred an appeal and having withdrawn the same, are now precluded from contesting the same any further as the matter has attained finality.

It is further pointed out that primarily, the fraud is apparent on the face of it. It is emphasized that from the material on record, it is evident that the neighbouring property is numbered as 3699 and the present suit schedule property, as claimed by defendants 4 and 5, is numbered as 859, which is inconsistent with the numbering of sites in the layout. According to the counsel for the respondents, the actual number of site is 3698 and the corresponding number, as originally allotted by the Housing Society, respondent No. 2, is 250D/5. This is a glaring circumstance, by which it is sought to be demonstrated that defendants 4 and 5 had taken forcible possession of the suit schedule property. It is during the pendency of the applications for interim reliefs that the defendants proceeded to put up construction post-haste and the defendants were seeking to take advantage of the same. Hence, the defendants being permitted by this court in this writ petition, which is misconceived and not maintainable, from seeking modification of the interim orders would not only be without jurisdiction, but would result in an illegality being perpetrated by defendants 4 and 5. And hence the learned Counsel seeks dismissal of the petition.

On the other hand, the learned Counsel for the petitioners would submit that it cannot be in dispute that there is substantial construction of the building in question. The ground floor has been completed and the first floor is at the stage of casting the roof and it is the stage at which the construction has been stopped. The steel reinforcement is in place and is subject to exposure to the elements, which may cause total damage, apart from rendering the same redundant and it would also endanger any construction that may be put up. The petitioners have also received a notice in respect of the sand and stones, lying outside the premises, which is kept ready for casting the roof, and that it is causing a public nuisance and ought to be removed. Apart from this, the petitioners have also raised a loan in respect of the construction and unless further progress is made of the construction, further loan instalments will not be released. Further he would submit that notwithstanding the serious controversy raised by the plaintiffs, the petitioners may be permitted to complete the construction and the defendants will not plead equities and will not have any claim over the suit schedule property, should the petitioner fail ultimately in the suit. And therefore, the learned Counsel seeks that there be a modification of the injunction order permitting the petitioners to construct on the property with a condition that no equities shall be claimed whatsoever. If the plaintiffs should succeed in the suit, subject to right of appeal of the defendants, the property would be given up to the plaintiffs.

Insofar as the contention that the writ petition would be without jurisdiction, the learned Counsel would submit that there is ample scope for this court in its writ jurisdiction to pass appropriate orders to meet the ends of justice notwithstanding that the petitioners would have a right of preferring an appeal or approaching the trial court by way of appropriate applications under Order XXXIX Rule 4 of the CPC and hence seeks that in exercise of the extraordinary power of writ jurisdiction, an appropriate direction be issued modifying the interim order passed by the court below permitting the petitioners to complete the construction, subject to the condition as aforesaid.

The learned Counsel for the second respondent - society would seek to support the case of the petitioner notwithstanding the serious infirmity in the description of the property which is however the subject matter of adjudication pending before the trial court.

In the light of the above circumstances, since no purpose is served in restraining further construction when there has been substantial construction on the property and since there is likelihood of waste occurring in the construction material not being utilized in a proper manner and also causing a public nuisance in view of the pending litigation, in exercise of power under Articles 226 and 227 of the Constitution of India, this court without standing on technicalities of directing the petitioners to withdraw the petition, with liberty to file an appeal, the petition is allowed. The impugned order passed by the court below affirming the earlier orders of injunction stands modified. In that, the petitioners are permitted to complete the construction on the suit schedule property. However, the petitioners shall not be permitted to plead equities in the event the petitioners should ultimately fail in the suit and would deliver possession of the suit schedule property in ''as is where is'' condition subject to attainment of finality of the orders passed in favour of the plaintiff.

With that observation, the petition stands disposed of.