DATED

31.05.2022

PASSED

OS.NO.6574/2018 ON THE FILE OF THE II ADDITIONAL

CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-17,

DISMISSING THE I.A.NO.5 FILED UNDER ORDER 39 RULE

1 AND 2 R/W SECTION 151 OF CPC.

THIS MISCELLANEOUS FIRST APPEAL COMING ON

FOR ADMISSION THIS DAY, THE COURT DELIVERED THE

FOLLOWING:

JUDGMENT

The appellant is the plaintiff in O.S.No.6574/2018

on the file of the II Additional City Civil Judge,

Bengaluru City, and he is aggrieved by the impugned

order dated 31.5.2022. The operative portion of this

order reads as under:

- 3 -

<I.A. No.5 filed by the plaintiff under Order

39 Rules 1 and 2 R/w Section 151 of C.P.C. is

dismissed.

The

defendants

shall

file

affidavit

undertaking that he will not alter the building and

will do only plastering and white washing of the

walls in suit 8B9 schedule property. Further, he

will ensure that he will not cause damage to the

building while doing the above work.=

2.

Sri M. Veerabhadraiah, the learned counsel

for the appellant, submits that the civil Court has erred

in rejecting the plaintiff9s application for temporary

injunction against the defendants, who could only be

tenants, to restrain them from carrying out certain

constructions. The civil Court could not have rejected

the application in the facts and circumstances of the

case; more importantly, the civil Court, even without an

application from the respondents, could not have

permitted them to undertake any construction much

less permit them to plaster and whitewash the subject

property. Therefore, this Court must interfere.

- 4 -

3.

Sri P.D. Surana, the learned counsel for the

respondents, submits that the respondents, who are in

possession of the subject property in their own rights,

have commenced interior repair work even before the

commencement of the suit. He relies upon a set of

photographs to submit that the internal plastering and

painting work is completed as of today.

4.

Sri P.D. Surana, relying upon another set of

photographs, submits that the appellant and his son

are trying to damage the roof from outside resulting in

seepage and the respondents would only ensure

plastering and water proofing to stop seepage of water.

In rejoinder, Sri M. Veerabhadraiah, stoutly denies that

the appellant or any person under him is responsible for

any damage to the property.

5.

The dispute between the appellant and the

respondents is about whether the respondents could

- 5 -

have undertaken the plastering work without the

permission from the concerned authorities. Sri. M.

Veerabhadraiah submits that the respondents should

have taken such permission whilst Sri P.D.Surana

contests the same. This controversy need not be

addressed for the present in the light of the undisputed

fact that the internal plastering work is already

completed.

6.

If the respondents, who are admittedly in

possession of the subject property, have completed

internal plastering and whitewashing and what remains

to be executed is only certain plastering and water proofing

in the terrace to prevent seepage of water, there would be no

reason for interference by this Court with the impugned

order. However, this Court must caution the respondents

against carrying out any work except water proofing and

plastering in the terrace to prevent seepage.

7.

When queried on the suit for eviction

pending for over four years, the learned counsels submit

- 6 -

that presently the civil Court must hear the pending

applications which would include the issue on the

maintainability of the suit. The learned counsels are

also categorical that they would address the Court

without seeking any further adjournments.

8.

In the light of the above, the appeal stands

disposed of calling upon the parties to assist and

cooperate with the civil Court in expeditious disposal of

the pending applications and decision on the question

of maintainability of the suit and calling upon the civil

Court

to

decide

on

these

pending

questions/applications within six weeks. It is reiterat