K M PUTTASWAMYGOWDA Vs. NARAYANAGOWDA

JUDGEMENT

(1.) This petition is filed by the petitioner-plaintiff requesting the Court to quash the order dated 18.08.2015 passed in M.A.No.26/2014 by the Senior Civil Judge at Maddur, produced at Annexure-H, and consequently, the order dated 12.12.2014 passed in O.S.No.270/2014 by the Junior Civil Judge at Maddur, produced at Annexure-E.

(2.) Heard the arguments of the learned counsel appearing for the petitioner-plaintiff and also the learned counsel appearing for the respondentdefendant.

(3.) Learned counsel for the petitioner-plaintiff during the course of his arguments has submitted that plaintiff has filed the suit for permanent injunction and also seeking mandatory injunction against the respondent-defendant. He has also submitted that along with the suit, application I.A.NO.1 was filed under Order 39 Rules 1 and 2 read with Section 151 of CPC, requesting the Court to grant temporary injunction order restraining the respondent-defendant from putting-up any construction and to proceed with the construction by encroaching the property of the plaintiff and also to restrain the defendant from causing obstruction from the possession and enjoyment of the suit schedule property by the plaintiff. He has submitted that the other side filed the written statement denying the entire case of the plaintiff and when the application was taken up for consideration, by that time, the respondent-defendant passed the memo undertaking that, in case, if there is any encroachment, then they are going to remove the construction in the said encroachment at his own cost. Hence, he has submitted that the Trial Court only on the basis of the memo, without considering the case of the petitionerplaintiff, dismissed the application, which is not legal and correct. He has further submitted that even the First Appellate Court without appreciating the materials placed on record and only on the basis of the memo filed by the defendant undertaking that, the defendant will remove the construction, if it is proved that there is any encroachment, dismissed the appeal preferred by the petitioner herein confirming the order passed by the Trial Court.