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2011 DIGILAW 565 (KAR)

G. Channarayappa v. Lakshmi Mallables

2011-06-07

A.N.VENUGOPALA GOWDA

body2011
JUDGMENT 1. Appellants are the defendants 1 to 4 in the suit/s instituted by the 1st respondent/plaintiff. The 2nd respondent is the 5th defendant in the suit/s. For convenience, the parties would be referred to with reference to their rank in the suit/s. 2. Brief facts of the case are: (i) The plaintiff is an allottee of sites bearing Nos.169, 170, 171, 189, 190, 191 & 198 situated at Nagarabhavi II Stage layout, formed in Sy.No.103 of Nagarabhavi Village, Bangalore North Taluk, by the 5th defendant/Bangalore Development Authority (BDA). The possession of the said sites were delivered by the BDA to the plaintiff on 07.11.2007 and the sale deeds were executed. The katha of the sites has been registered in the name of the plaintiff. (ii) The land bearing Sy.No.103, measuring 2 acres, situated at Nagarabhavi Village, which belonged to the defendants 1 to 4 was acquired by the Government, pursuant to a Preliminary Notification dated 15.07.1982 and a Final declaration dated 16.05.1985. An award was passed on 20.05.2002. (iii) Defendants 1 to 4 filed WP 13028/2007 challenging the acquisition of the said property. The writ petition was allowed by an order dated 20.03.2009. Questioning the said order, the plaintiff has filed WA 1522/2009. The 5th defendant/BDA has filed WA 1490/2009. In WA 1522/2009, by an interim order dated 21.07.2009, the order dated 20.03.2009 allowing WP 13028/2007 was stayed. The writ appeals are pending. (iv) The plaintiff filed the suits in the City Civil Court, Bangalore, to pass judgment and decree of permanent injunction, restraining the defendants 1 to 4 from interfering with the peaceful possession and enjoyment of the plaint schedule property. I.A.II was filed to pass an order of temporary injunction, restraining the defendants 1 to 4 from interfering in any manner with the possession and enjoyment of the plaint schedule property by the plaintiff. 3. Defendants 1 to 4 filed written statement/s and statement of objections to I.A.II, inter-alia contending that, they are the owners in possession and enjoyment of 2 acres of land in Sy.No.103 of Nagarabhavi Village, WP 13028/2007 was filed questioning the acquisition of the property, wherein, an interim order dated 25.10.2007 was passed, directing the BDA to maintain status-quo and that the writ petition was allowed on 20.03.2009, by declaring that, the acquisition has lapsed and the allotment made in favour of the plaintiff (4th respondent in the writ petition) is void. They also contended that the allotment of sites made by the BDA in favour of the plaintiff is illegal, void and non-est in the eye of law and that the suit/s for relief of bare injunction, without having a legal right is not maintainable. 4. The Trial Court disposed off I.A.II on 23.05.2011, whereby, the defendants 1 to 4 were restrained from interfering with the possession of the plaintiff over the plaint schedule property and the plaintiff was directed to maintain status-quo of the suit property, until such orders that may be passed in WA 1522/2009 or pending disposal of the suit, whichever is earlier. These appeals are directed against the said order/s. 5. Sri C.M.Nagabushana, learned counsel appearing for the appellants, firstly contended that, the impugned order has been passed in disregard of the facts pleaded in the written statement and statement of objections filed to I.A.II and also by not taking into consideration the documents produced along with the written statement. Secondly, in view of pendency of WA 1522/2009 filed by the plaintiff, the suit/s are not maintainable and there being no prima facie case made out, the impugned order/s are arbitrary, perverse, capricious and illegal. Thirdly, the matter having been ceased in WA Nos.1522/2009 & 1490/2009, the Trial Court has no power to adjudicate on the question of possession and the impugned order/s, amount to committing contempt of this Court. Lastly, on any view of the matter, the impugned order/s are unsustainable. However, learned counsel submitted that, status-quo of the property in dispute, will be maintained by the appellants, inview of the pendency of WA Nos.1490/2009 and 1522/2009. 6. Sri H.T.Nataraj, learned counsel appearing for the 1st respondent, on the other hand contended that, the property of the appellants was duly acquired by the Government for implementation of the scheme of the BDA, possession was taken and delivered to BDA, upon which, the BDA formed the layout and allotted 7 sites to the plaintiff and the possession of the allotted sites was delivered and the sale deed/s conveying the allotted sites was also executed. The katha of the properties was registered in the name of the plaintiff. Learned counsel submitted that, in the highly belated WP 13028/2007 filed by the defendants 1 to 4, an exparte order of status-quo was passed on 25.10.2007. The katha of the properties was registered in the name of the plaintiff. Learned counsel submitted that, in the highly belated WP 13028/2007 filed by the defendants 1 to 4, an exparte order of status-quo was passed on 25.10.2007. However, by an order passed on 09.04.2008, the plaintiff, which was the 4th respondent in the writ petition, was permitted to put up construction, which clearly shows that the plaintiffs is in possession and enjoyment of the suit property. Since, the writ petition was erroneously allowed, WA 1522/2009 was filed and the order passed by the Learned Single Judge on 20.03.2009, allowing WP 13028/2007 was stayed. Learned counsel submitted that, despite the said order, the defendants 1 to 4, who are residing in the locality wherein the suit property is situated, made concerted efforts to dispossess the plaintiff from the suit schedule property by resorting to illegal methods and by using their money and muscle power and also their capacity to wield the political influence. Learned counsel submits that the plaintiff, which is a company, could not resist the high handed and illegal acts of defendants 1 to 4 and their henchmen and hence the suit/s were instituted, to protect the possession of the property, which was lawfully allotted and conveyed by the BDA. Learned counsel submits that, in view of the plaintiff satisfying the mandatory conditions required for passing an order of temporary injunction, the Trial Court upon examining the case of the parties, passed the impugned order, which in the facts and circumstances of the case being a just and an equitable order, does not call for interference, particularly, on account of the fact that there is neither any arbitrariness nor perversity muchless capriciousness or any misdirection on the part of the Trial Court in the matter of either consideration of the case of the parties or in passing the impugned order. Learned counsel submits that, the Trial Court in exercise of the discretionary power has passed just and equitable orders and hence, no interference in the matters is called for in exercise of the Appellate Jurisdiction. 7. I have perused the record. The point for determination is: Whether the impugned order/s are arbitrary, capricious, perverse and illegal? 8. Learned counsel submits that, the Trial Court in exercise of the discretionary power has passed just and equitable orders and hence, no interference in the matters is called for in exercise of the Appellate Jurisdiction. 7. I have perused the record. The point for determination is: Whether the impugned order/s are arbitrary, capricious, perverse and illegal? 8. From the record it is clear that, 2 acres of land in Sy.No.103 of Nagarabhavi village was acquired by the Government for the implementation of scheme of Nagarabhavi II Stage Layout by the BDA. An award was passed. The defendants 1 to 4 filed WP 13028/2007 to quash the award and the acquisition notifications. On 25.10.2007, an interim order was passed in WP 13028/2007 to maintain status-quo. By a further order dated 09.04.2008, the plaintiff, which was the 4th respondent in the writ petition, was permitted to put up construction, subject to result of the writ petition. The writ petition was allowed on 20.03.2009. The 4th respondent in the writ petition questioned the said order in WA 1522/2009. By an interim order dated 21.07.2009, the operation of the order dated 20.03.2009, allowing WP 13028/2007 was stayed. The BDA questioned in WA 1490/2009 the order allowing the said writ petition. The pendency of the writ appeals and passing of the said interim order was pleaded and also brought to the notice of the Trial Court. Noticing the said undisputed position, the Trial Court in the impugned order/s has held as follows: “In view of filing of Writ Appeal 1522/09 by the plaintiff against the order allowing WP 13028/07 and stay of operation of the order passed in WP 13028/07 in WA 1522/09, it is necessary to maintain the status quo till further orders by the Hon’ble High Court in Writ Appeal 1522/09. As there is no material that the plaintiff was dispossessed subsequent to the order passed in WP 13028/07, plaintiff has made out a prima facie case of his possession.” While recording the finding on points 2 & 3, the Trial Court has held as follows: “If the plaintiff is dispossessed during the pendency of Writ Appeal 1522/09 filed against the order of allowing WP 13028/07 and if the plaintiff succeeds in the Writ Appeal and the plaintiff will be put to great inconvenience and it will suffer irreparable injury. Therefore the balance of convenience lies in favour of the plaintiff and the plaintiff will suffer irreparable injury if temporary injunction is not granted.” (underlining is by me) 9. Indisputedly, the suits filed are for passing judgment and decree of permanent injunction against defendants 1 to 4 from interfering with the possession and enjoyment of the pliant schedule property. Temporary injunction can be granted by a Court under S.37(1) of the Specific Relief Act, 1963 (for short ‘the Act’). The same is regulated by the Code of Civil Procedure, 1908. A decree for perpetual injunction can be made under S.37(2) of the Act. Perpetual injunction can be granted upon trial and considering the merit of the suit. The injunction would be to restrain the defendant/s perpetually from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 of the Act governs the grant of perpetual injunction. Sub-section (3) thereof reads as follows: “When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely: (a) Where the defendant is trustee of the property for the plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion; (c) Where the invasion is such that compensation in money would not afford adequate relief; (d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings”. The provisions of S.38 have to be read along with S.41, which provides that, an injunction cannot be granted in the cases falling under clauses (a) to (j). Clause (h) provides that, an injunction cannot be granted, when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). 10. One of the factors to be considered by the Court while considering the case of temporary injunction is, whether prima facie case is made out by the plaintiff, which certainly would include the nature of the suit filed and its maintainability. The Trial Court ought to have kept in view, whether the plaintiff could have obtained the relief relating to the subject matter of the suit in the pending proceedings between the parties. The Trial Court ought to have kept in view, whether the plaintiff could have obtained the relief relating to the subject matter of the suit in the pending proceedings between the parties. The Trial Court has not made any attempt to find out, whether the suit/s are maintainable, in view of the fact that, the matter relating to acquisition of the land of defendants 1 to 4, for the implementation of Nagarabhavi II Stage Scheme by the 5th defendant, the formation of layout, substantial implementation of the scheme by the BDA, the allotment of sites formed therein by the 5th defendant in favour of the plaintiff, are the subject matter of consideration in Writ Appeals 1490/2009 and 1522/2009. The defendants 1 to 4 having raised the question of maintainability of the suit/s vis-à-vis the pending writ appeals, the Trial Court could not have passed the impugned order/s, without finding out, whether the suits are maintainable. Since the Trial court has failed to consider the main question before proceeding to consider the case to grant orders of temporary injunction, it has acted arbitrarily and has committed illegality. The Trial Court has proceeded on prima facie misconstruction of the matters and in excess of the jurisdiction i.e., in directing maintaining of status-quo, till further orders are passed in WA 1522/2009. 11. The plaintiff having filed WA 1522/2009, can obtain therein, an interim order to restrain defendants 1 to 4 from interfering with its possession and enjoyment of plaint schedule properties. The plaintiff being the allottee of the sites by the BDA, has assailed the order passed by the Learned Single Judge in WP 13028/2007 on 20.03.2009, whereby the allotment of sites made in its favour was held to be void and non-est. the allotment of sites by the BDA in favour of the plaintiff has a direct bearing to the legality of the acquisition proceedings, which aspect is now ceased in WA 1490/2009 filed by the BDA and WA 1522/2009 filed by the plaintiff. The final order passed in WP 13028/2007 has been stayed in WA 1552/2009 and any further interim relief in respect of the property in dispute can be sought by making appropriate application in the pending proceedings, to prevent multiplicity of judicial proceedings. The Trial Court has failed to keep in view the provisions of the Act noticed supra and has erred in passing the impugned order. The Trial Court has failed to keep in view the provisions of the Act noticed supra and has erred in passing the impugned order. In the result, the appeals are allowed and the impugned orders are set-aside. I.A.II filed in the Trial Court stands dismissed, by making it clear that, this judgment would not come in the way of the 1st respondent/plaintiff, which is the appellant in WA 1522/2009, seeking an order of temporary injunction against the appellants/defendants 1 to 4 from interfering with the possession and enjoyment of the allotted sites by the BDA. The statement made by Sri C.M.Nagabhushana that, the status-quo of the property in dispute would be maintained by his clients i.e., appellants, stands recorded. No costs.