Sri. Anand vs Smt. Mayura Srinath and Others

K.L. Manjunath, J.—The correctness and legality of the order dated 1-1-2011 passed on IAs XIII and XIV in OS No. 5030 of 1997, on the file of XI Addl City Civil Judge, Bangalore, is called in question in these writ petition. Heard the learned counsel for the parties.

It is the case of the petitioner that his father S.V. Shastry was a tenant of the respondents and was running a hotel in the suit premises. It appears, father of petitioner demolished the kitchen block of the building and therefore, the suit came to be filed for mandatory injunction, directing the petitioner herein to rebuild the walls and roof slabs and to restore the property to its original position. Petitioner contested the suit, denying the allegations that his father demolished the kitchen walls. It was contended by him that it was his neighbour who demolished the walls.

When the matter was pending adjudication, an application in IA XIII came to be filed by the petitioner herein to dismiss the suit on the grounds that the plaintiffs had lost title of the property on account of selling the property in favour of a third person. The second plaintiff in the suit also thereafter filed another application in IA XIV seeking permission to convert the suit from one of mandatory injunction to damages, on the ground that on account of the demolition of kitchen walls, he has sustained loss.

The learned judge of the trial court, having heard the learned counsel for the parties, rejected the application filed by the petitioner herein for dismissal of the suit and allowed the application for amending the prayer. Challenging this order, the present writ petitions are filed.

The ground urged by the learned counsel for the petitioner is that when once the respondents-plaintiffs sold the property in question, they have no subsisting interest in the property and therefore the suit should be dismissed and that the trial court has wrongly rejected the application. It is also contended that allowing the application for amendment to convert the suit from mandatory injunction to damages is also bad in law. After hearing the learned counsel for both parties, this court does not see any merits in these petitions. Admittedly, the property has been sold after the institution of the suit. Though they sold the property, they are entitled to file a suit for damages for the loss caused to the property on account of the wrongful act committed by the tenant. They are also entitled to seek a mandatory injunction for rebuilding the wall and restore the property to its original position. Merely because the property is sold, the rights accrued to the owner of the property till the date of sale cannot be taken away on account of alienation made by the landlords. Therefore, this court is of the opinion that merely because the property is sold, rights of the plaintiffs cannot be curtailed by courts by dismissing the application. On account of the sale of the property, the plaintiffs may not be able to get a decree for restoration of the building to its original position, since the owner has been deprived of using the property due to the damage caused, he can always seek for the relief of damage quantifying the damages. Therefore, there is no merit in these petitions and are accordingly dismissed.