Challenging impugned order dated 18.07.2022, passed by

LXXII Addl. City Civil & Sessions Judge, Mayo Hall, Bengaluru

(CCH-73) in O.S.no.26161/2022 on I.A.No.1 and 2 of CPC filed

under Order XXXIX rule 1 and 2 CPC, this appeal is filed.

Appellant herein was defendants no.3 and 2, while

respondent no.1 herein was plaintiff; respondent no.2 herein

was defendant no.1 and respondent no.3 herein was defendant

no.1. They will be referred to as such herein.

O.S.no.26161/2022 was filed by plaintiff against

defendants for relief of declaration, possession and permanent

injunction etc., in respect of suit schedule properties.

4.

In said suit, plaintiff filed I.A.no.1 under Order

XXXIX rule 1 and 2 of CPC for temporary injunction restraining

defendants no.2 to 4 from alienating/encumbering or creating

charge over suit schedule 'C' and 'E' properties. Likewise,

I.A.No.2 was filed for restraining defendants no.2 and 3 from

putting up construction over suit schedule 'C' and 'E' properties.

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On consideration of said applications, trial Court under

impugned order allowed applications and granted T.I. as

prayed.

5.

Assailing same defendants no.3 and 2 are in appeal.

6.

Sri.

V.B.

Shivakumar,

learned

counsel

for

defendants no.3 and 2 propounded several contentions against

impugned order. Even Sri. B. Keshavamurthy, learned counsel

for plaintiff sought to sustain impugned order on several

substantial contentions.

7.

During course of submission, it was submitted that

defendants no.2 and 3/appellants had begun construction and

therefore, they may be permitted to complete construction

subject to final decree to be passed in suit.

8.

Said submission was opposed by learned counsel

for plaintiff on ground that disposal of suit may consume time

and defendants may dilate suit.

9.

On perusal of impugned order, it is seen that trial

court has observed that plaintiff had made out case for trial and

as there was genuine dispute about interest of parties in suit

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schedule properties and on ground that construction initiated

by defendants was still in initial stage, plaintiff was entitled for

temporary injunction.

10.

During

course

of

pendency

of

this

appeal,

appellants no.1 and 2 have filed affidavit undertaking along

with building permission granted by BBMP for construction and

also photographs indicating present status of constructions.

Both appellants have stated that they would participate in trial

Court proceedings without seeking unnecessary adjournments

and further undertaking that, in case, trial Court were to hold

that plaintiff did not have title or possession over suit property

on basis of plaintiffs' claim defendants no.3 and 2 would not

claim equity and subject to such undertaking, they may be

permitted to complete construction.

11.

Considering fact that construction over suit property

by defendants no.3 and 2 is incomplete and same may subject

defendants to grave hardship, impugned order would require

modification.

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12.

In

light

of

above

circumstances,

recording

undertaking of defendants no.3 and 2, appeal could be

disposed of. Hence, I pass following:

ORDER

Appeal is disposed of by modifying impugned order dated

18.07.2022, passed by LXXII Addl. City Civil & Sessions Judge,

Mayo Hall, Bengaluru (CCH-73) in O.S.no.26161/2022 on

I.A.No.1 and 2 of CPC filed under Order XXXIX rule 1 and 2

CPC, only to extent of permitting defendants no.3 and 2 to

complete construction as per sanctioned plan issued by BBMP

which would subject to final result of suit and without

defendants claiming equity, in case result of suit goes against

them.

Trial Court is also directed to expedite trial in accordance

with law, without giving unnecessary adjournments.

Both parties are directed to co-operate for early disposal

of suit.

Sd/-

JUDGE

Psg*