Smt.Shanthamma vs Sri.Subramani

The unsuccessful plaintiff is before this Court for a writ of certiorari to quash the impugned order dated 02.07.2015 passed on I.A.No.1 made

in O.S.No.752/2012 rejecting the application for temporary injunction, confirmed by the lower Appellate Court dated 17.08.2015 made in

M.A.No.14/2015.

The present petitioner who is the plaintiff in O.S.No.752/2012 filed suit for permanent injunction in respect of suit schedule property measuring

2 guntas including the house morefully described in the plaint. The same was disputed by the defendant by filing written statement and contended

that the defendant also filed suit for injunction in O.S.No.418/2009 in respect of 15 guntas in Sy.No.53/P1 of Channahalli Village. The trial Court

in the suit filed by the defendant in O.S.No.418/2019 rejected the application for temporary injunction holding that the present plaintiff who is the

defendant in O.S.No.418/2009 has completed the construction and the plaintiff also admitted that 2 guntas of land granted in favour of defendant-

present petitioner. The same was confirmed by the lower Appellate Court.

In the present case also, the plaintiff filed I.A.No.1 for temporary injunction in respect of the suit schedule property. The trial Court considering

the application and objections by the impugned order dated 2nd July 2015 rejected the application filed for temporary injunction and allowed the

application filed by the defendant to vacate the exparte interim order dated 01.08.2012. Aggrieved by the said order, the present petitioner filed

M.A.No.14/2015. The lower Appellate Court considering the entire material on record by the impugned order dated 17th August 2015 dismissed

the Miscellaneous Appeal. Hence, the present Writ Petitions are filed.

I have heard the learned counsel for the parties to the lis.

Sri.G.B.Manjunatha, learned counsel for the petitioner pointed out that in the suit filed by the present respondent/defendant who is the plaintiff in

O.S.No.418/2009, the trial Court recorded a specific finding that the defendant (present petitioner) has produced the documents showing her

ownership and also produced the mortgage deed, tax paid receipts and photos which shows that the house is completely constructed. The

document produced by the plaintiff herself shows that the present defendant before the Executive Officer, the plaintiff has admitted that 2 guntas of

land granted in favour of the defendant/present petitioner out of the suit schedule property by the Gram Panchayath. The said aspect has not been

considered by both the Courts below. Therefore, he sought to quash the impugned order passed by the Courts below by allowing these Writ

Petitions.

Sri.C.V.Manjunatha, learned counsel for the respondent sought to justify the impugned order passed by the trial Court and contended that both

the Courts below concurrently held that the plaintiff is not in possession and enjoyment of suit schedule property. Therefore, he submits that the

present petitioner is not entitled for the relief sought for.

Having heard the learned counsel for the parties, it is undisputed fact that the present respondent who is also the plaintiff in O.S.No.418/2009

filed suit for permanent injunction in respect of 15 guntas bearing Sy.No.53/P1 of Channahalli Village. On the application filed by the present

respondent/plaintiff, the trial Court considering the application and objections by an order dated 24th April 2010 dismissed the application holding

that the present petitioner who was the defendant in the said suit has produced the documents showing her ownership, tax paid receipts, mortgage

deed and the photos which shows that the house is completely constructed. The said order passed by the trial Court has reached finality.

In the present case, though both the Courts below concurrently held that the plaintiff has not made out any case to grant temporary injunction in

respect of suit schedule property that is 2 guntas in Sy.No.53/P1 situated at Channahalli village, the fact remains that both the suits filed by both the

parties is in respect of same property for different extent. The admitted fact is also not in dispute that the present petitioner has constructed the

house and she is residing in the said house. In view of the same, without adverting merits and demerits of the case of both the parties, it is suffice to

direct the trial Court to decide the present suit itself as expeditiously as possible subject to co-operation of both the parties in order to resolve the

dispute between the parties.

In view of the serious controversy between the parties, the trial Court is directed to decide the suit filed by the plaintiff in O.S.No.752/2012 as

expeditiously as possible subject to co-operation of both the parties. Till the disposal of the suit, both the parties are directed to maintain status-

quo in respect of present suit schedule property including the house where the petitioner has constructed the house and residing therein and both

the parties are bound by the result of the main suit. With the above observations, the Writ Petitions are disposed of. Both the learned counsel fairly

submits that since O.S.Nos.418/2009 and 752/2012 arising out of same property and for different extent and both the parties are same, parties

are at liberty to file necessary application before the trial Court for clubbing both the suits. On such an application is filed, the trial Court shall

consider the same and proceed with both the suits in accordance with law.