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2016 DIGILAW 107 (KAR)

Gangu v. Gogte Textiles Limited

2016-01-29

B.S.PATIL

body2016
ORDER : B.S. Patil, J. 1. Petitioner is the plaintiff in O.S. No. 417 of 2003. The said suit has been filed seeking partition and separate possession of the suit schedule properties. An application was filed by her seeking an order of temporary injunction against defendant 12-Gogte Textiles Limited, alleging that defendant 12 was trying to alter the nature of the property by putting up construction. A restraint order was sought preventing defendant 12 from altering the nature of the property. 2. This application was resisted contending inter-alia that defendant 12 had purchased the property under a lease-cum-sale agreement executed by defendant 11-Karnataka Industrial Area Development Board (for short, 'KIADB'). It was also urged that the said property had been duly acquired by the State for the benefit of the KIADB and the KIADB, in turn, allotted the application schedule property in favour of defendant 12. It was urged that a registered sale deed was executed by the KIADB in favour of defendant 12. 3. Without considering any of these things, the Trial Court proceeded on the basis that the suit was one for partition and separate possession and that the subject-matter of the suit had to be maintained in status quo during the pendency of the suit and thus granted an order of temporary injunction against the 12th defendant. 4. The 12th defendant challenged the said order before the Appellate Court by filing miscellaneous appeal in Misc. Appeal No. 18 of 2009. Learned Principal Senior Civil Judge, Belagavi, vide his judgment dated 8th September, 2014 has allowed the miscellaneous appeal and dismissed the application filed under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 by the plaintiff/petitioner. Aggrieved by the same, the present writ petition has been filed. 5. Appeal No. 18 of 2009. Learned Principal Senior Civil Judge, Belagavi, vide his judgment dated 8th September, 2014 has allowed the miscellaneous appeal and dismissed the application filed under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 by the plaintiff/petitioner. Aggrieved by the same, the present writ petition has been filed. 5. Upon hearing the Counsel for both sides and on perusal of the orders passed by both the Courts, while I find that the Trial Court has not examined the pre-requisites for grant of temporary injunction viz., existence of prima facie case, balance of convenience and irreparable injury likely to result if temporary injunction was refused, the Appellate Court has examined the entire material on record while coming to the conclusion that the land had stood vested in the State Government having been acquired for the benefit of the KIADB and that KIADB, in turn, had sold the property in favour of the 12th defendant and the 12th defendant had enjoyed the property being in possession of the same and, therefore, there was no prima facie case made out by the plaintiff and balance of convenience was not in favour of the plaintiff to grant temporary injunction. Having heard the learned Counsel for both parties and on careful perusal of the findings returns by both the Courts, as adverted to above, I am of the view that the Appellate Court has rightly interfered with the order passed by the Trial Court dismissing the application filed by the plaintiff seeking grant of temporary injunction. No case is made out for interference in exercise of writ jurisdiction. However, it has to be clarified that observations made by the lower Appellate Court or for that matter by the Court shall be confined for the disposal of the I.A. and shall not influence the Trial Court in disposing of the main matter on merits. With this clarification, this writ petition is dismissed. Petition Dismissed.