The court established that a temporary injunction under Order XXXIX of the CPC can be modified based on the parties' undertakings, balancing the need to prevent irreparable harm with the rights of the parties involved.

JUDGMENT

1. The petitioners, defendants in O.S.No.464/2014 on the file of VI Additional Civil Judge and JMFC, Mysuru are before this Court, questioning the order dtd. 22/11/2022 on I.A.No.13 allowing the application filed under Order XXXIX Rules 1 and 2 of CPC and judgment dtd. 2/3/2023 on M.A.No.96/2023 on the file of VI Additional Senior Civil Judge and JMFC, Mysuru, confirming the order passed by the trial Court.

2. Heard learned counsel Sri.Ajit P.B. for petitioners and learned counsel Sri.Ravindra Babu G., for respondent No.1/plaintiff. Perused the writ petition papers.

3. Learned counsel for the petitioners would submit that the suit of the respondent/plaintiff is one for specific performance of agreement dtd. 2/9/2004 directing defendants No.1 to 4 to execute the sale deed and to hand over possession of the suit schedule property i.e., 19 guntas of land out of 39 guntas in Sy.No.16/2, situated at Chikkaharadanahalli village, Kasaba Hobli, Mysore Taluk. Learned counsel for the petitioners would submit that the respondents/plaintiffs filed I.A.No.13 under Order XXXIX Rules 1 and 2 of CPC praying for ad-interim temporary injunction to restrain the petitioners/defendants from putting up any construction in the application schedule property in any manner. Learned counsel for the petitioners/defendants would submit that the petitioners/defendants had entered into agreement dtd. 31/1/2007 to sell the agreement schedule property and the possession is with the petitioners/defendants. The petitioners/defendants commenced construction in the suit schedule property and at that point of time, respondents/plaintiffs filed application under Order XXXIX Rules 1 and 2 of CPC praying to restrain the petitioners/defendants from putting up any construction. It is submitted that the trial Court without examining the necessity to injunct the petitioners/defendants allowed the application and injuncted the petitioners from proceeding with the construction. Learned counsel for the petitioners would submit that if the respondents/plaintiffs succeed in the suit, the petitioners are ready to demolish the construction and hand over vacant possession of the suit schedule property to the plaintiffs. Learned counsel also invite attention of this Court to the affidavits dtd. 27/11/2023 and 18/11/2023 in that regard. Therefore, learned counsel for the petitioners would pray for a direction to proceed with the construction, recording the undertaking of the petitioners/defendants, that they would demolish the building and hand over vacant possession to the plaintiffs, in the event respondent No.1/plaintiff succeeds in the suit.

4. Per contra, learned counsel for the respondent No.1/ plaintiff would oppose the prayer of the petitioners/ defendants and submits that if the petitioners are permitted to construct as prayed, the respondents/ plaintiffs would have no access to the land in Sy.Nos.16/3 and 16/4, which are adjacent to Sy.No.16/2.

5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that taking note of the affidavit dtd. 27/11/2023 filed by petitioner No.3 herein, the petitioners could be permitted to proceed with construction with a condition to hand over vacant possession of the suit schedule property by demolishing the building if respondents/plaintiffs succeed in the suit.

6. I.A.No.13/2023 is filed under Order XXXIX Rules 1 and 2 of CPC with a prayer to restrain the defendants from putting up any construction in the application schedule property. It is not the case of the respondents/plaintiffs that if construction is permitted, they would be left with no access to the land in Sy.Nos.16/3 and 16/4. Learned counsel for the petitioners submits that the building is being constructed on land measuring 26 x 30 feet. Further, he submits that the respondents/plaintiffs have access other than the land in Sy.No.16/2. Paragraphs 3 and 4 of the affidavit filed by petitioner No.3/defendant No.3 dt