2019 Supreme(Kar) 2009

IN THE HIGH COURT OF KARNATAKA
B.M. Shyam Prasad, J.
Sudha Rao – Appellant
Versus
S. Srinivasa Reddy Son Late Verma Reddy - Respondent
Miscellaneous First Appeal No. 3057 of 2018, 3058 of 2018, 3059 of 2018
Decided On : 14-06-2019

Headnote:

Civil Procedure Code - Order XXXIX - Rules 1 and 2 - Permanent Injunction - Possession of respective plots - Immovable property - Whether plaintiffs had established prima facie case against defendants and balance of convenience and who would be put to irreparable hardship and injury summed up respective cases holding that plaintiffs - Respondents had established prima facie case by producing sale deeds in their favor layout plan approved by administrative of Group and the revenue records - From B.B.M.P. in their favor - Whether civil Court has erred in concluding that plaintiffs - Respondents have made out prima facie case and balance of convenience in their favor and that plaintiffs would be put to irreparable loss and injury if injunction is not granted - Whether impugned orders are either perverse or capricious or arbitrary and call for interference - Whether a plaintiff has made out a case for trial and if plaintiff has made out a case for trial it is concluded that plaintiff is successful in making out a prima facie case for grant of temporary injunction - Whether a plaintiff has made out prima facie case will have to be adjudged on an assessment of relative cases of plaintiff/s and defendant/s - Appellants - Defendant including the respondent were trying to interfere with plaintiffs - Respondent's possession of aforesaid sites asserting independent title under certain deeds - Therefore plaintiffs - Respondents were constrained to file above three separate suits for permanent injunction restraining appellant - Defendants from interfering with their possession - Plaintiffs - Respondents filed applications under Order XXXIX Rules 1 and 2 of Code of Civil Procedure for short CPC for pendent late injunction for protection of their asserted possession of respective plots - Civil Court initially granted ad interim ex-parte order of status quo restraining both parties until written statement was filed - Appellant - And respondent No.2 contested suits and applications - In fact appellant - Defendant and respondent No.2 filed written statements with request to Civil Court to consider such written statements as objections to applications – Held, Settled law is that prima facie case, one of the necessary indices for grant of temporary injunction against a person or persons from interfering with possession of an immovable property cannot be confused with prima facie title to subject property - Courts while considering an application for grant of interim injunction assess whether a plaintiff has made out a case for trial and if plaintiff has made out a case for trial it is concluded that plaintiff is successful in making out a prima facie case for grant of temporary injunction - Question whether a plaintiff has made out prima facie case will have to be adjudged on an assessment of relative cases of plaintiff/s and defendant/s - It is clear from material on record that property in dispute not an open site and construction is being undertaken by applicant who wants to come on record - Interim orders of this Court to maintain status-Quo was because of submission by learned counsel for appellant defendant No. 1 that construction was undertaken by a contractor appointed by appellant - Defendant it is now beyond dispute that construction is by applicant who wants to come on record claiming under a sale deed executed by appellant - Defendant No. 1 even before date of the present suit - Plaintiffs-respondents have also initiated suit against applicant who wants to come on record - There is nothing to indicate that construction was commenced and deliberately continued at instance of appellant defendant No. 1 despite orders of this Court by purchaser who wants to come on record - As such it cannot be said that appellant - Defendant No. 1 has deliberately acted in breach of interim orders and therefore proceedings under Order 39 Rule 2(A) of CPC should be initiated against appellant - Defendant No.1 - It is settled that balance of convenience and irremediable injury are questions of fact, and there will have to be a positive finding on these questions of fact based on the material on record to either grant or refuse temporary injunction. Further, in cases where identity as claimed is not clearly established, the courts would be reluctant to grant temporary injunction lest the right of another person be seriously impaired. Furthermore, The question of balance of convenience and irremediable injury, as well as prima facie case, will have to be examined in the totality of the case - Appellant - defendant No. 1, for reasons already discussed, cannot be called a stranger to the property in dispute. There is confirmation of title and possession in favour of the predecessors-in-title in OS No. 798/1991, and such confirmation is not challenged in a manner known to law. The plaintiffs-respondents, as of now, are not able to indicate that the appellant - defendant No. 1 is a stranger to the property in dispute, nor are they able to establish identity of the property in dispute qua the claim of the appellant - defendant No. 1. The appellant - defendant's title to, and possession, of the land of Village, Yelahanka, Bangalore North Taluk would be very tangible unless the a distinct and separate identity of the property as stated in the plaint is established. The property in dispute is transferred in favour of the purchaser even before the commence of the suit, and construction is also commenced - Appeals are allowed