Venkatesh Mestha vs Ramesh Venkappa Mestha

A.S. Bopanna, J.—The petitioner is before this court assailing the order dated 22/3/2014 passed on I.A. No. 2 in O.S. No. 241/13 and the judgment dated 14/7/2014 passed in M.A. No. 5/14.

The petitioner herein is the plaintiff in O.S. No. 241/13. The suit in question is filed for judgment and decree of permanent injunction. In the pending suit, the plaintiff has also filed an application under Order 39 Rule 1 and 2 of CPC seeking grant of temporary injunction. The defendant had filed objections to the said application. The court below after considering the rival contentions has dismissed the application. The plaintiff claiming to be aggrieved by the same, had preferred an appeal before the Lower Appellate Court in M.A. No. 5/14. Lower Appellate Court, after considering the rival contentions, has dismissed the appeal. Against the order and the judgment which are concurrent, the petitioner/plaintiff is before this court.

The learned counsel for the petitioner, while assailing the order as well as the judgment of the courts below would contend that they have committed an error in relying on the agreement dated 2/11/2006. It is her case that even if an agreement of this nature is kept in view, no right could have been claimed by the defendant herein. The time, as indicated, has elapsed. Even otherwise, the document was not sufficiently stamped and the extent to which it has been claimed is not similar to the extent which the defendant claims to be in possession. It is therefore her case that the court below, in fact, should have taken into consideration the case as putforth by the plaintiff that he continues to be in possession of the property and the relief of injunction ought to have been granted. In that view, it is contended that the order as well as the judgment of the courts below, are liable to be set aside and the petitions are to be allowed.

Having taken note of the contentions as putforth, I have perused the order passed on I.A. No. 2 in O.S. No. 241/13 as also the judgment passed in the appeal. A perusal of the same would indicate that the courts below, while taking note of the contentions putforth by the plaintiff, has taken into consideration the agreement dated 2/11/2006 which was relied upon by the defendant. Before going into the question as to whether the court below should have relied on such agreement, what is necessary to be noticed is that the courts below have also referred to the conduct of the petitioner while seeking an order of temporary injunction that no reference whatsoever was made with regard to that aspect of the matter and the fact of an agreement having been executed was brought to the fore only while the defendant filed written statement and the said document was relied upon. In my opinion this is a very relevant aspect which requires to be kept in view while considering the relief of temporary injunction which is a discretionary order.

Even otherwise, what is necessary to be noticed is as to whether the defendant can claim any right based on such agreement and as to whether such agreement is sustainable in law. These are aspects which would be considered in the suit based on the evidence that would be tendered therein. For the present, what was necessary to be considered is as to whether the plaintiff was in factual possession of the property as on the date of filing of the suit. For the said purpose, the agreement dated 2/11/2006 was relevant when it was indicated that under the said agreement, possession has been delivered. Therefore the conclusion reached by the Trial Court as also the Lower Appellate Court, concurrently, cannot be said to be erroneous in the facts of the present case. Further the courts below, while coming to such conclusion, has also referred to the decisions that were cited before it and has thereafter taken the decision in the matter. Hence I see no reason to interfere with the orders passed by the court below.

The observations, however, shall remain limited to the consideration of the application and the court below shall proceed to consider the suit on the evidence that would be tendered by the parties.

In terms of the above, the petitions stand disposed of.