SRI. KRISHNA HOMES vs SRI. M. F. KAISAR
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 15 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 6631 OF 2025 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.4721 OF 2025 (CPC)
IN MFA No.6631/2025:
BETWEEN:
SRI.KRISHNA HOMES
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS OFFICE AT
NO.1074, 11TH MAIN,
HAL II STAGE
BENGALURU - 560 008
REP. BY ITS PARTNERS
1. SRI T K DODDANNA
S/O LATE KARIYANNA
2. MRS. K POORNIMA
W/O SRI D S SRINIVAS
… APPELLANT
(BY SRI. P.N.MANMOHAN, ADVOCATE FOR
SRI.VINAY N., ADVOCATE)
AND:
1. SRI. M.F.KAISAR
S/O SRI ADAM SHARIF,
AGED ABOUT 47 YEARS
R/AT NO.248, 1ST MAIN
Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA
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2ND CROSS, VIJINAPURA
DOORAVANINGAR
BENGALURU - 560 016
2. SRI NASEER
S/O SRI ABDUL RAHIM
R/AT NO.102, HOODI CIRCLE
MAHADEVAPURA POST
BENGALURU - 560 048
3. SRI SHAHAJAHAN
S/O ABDUL RAHIM
R/AT NO.102, HOODI CIRCLE
MAHADEVAPURA POST
BENGALURU - 560 048
…RESPONDENTS
(BY SRI.SYED KHALEEL PASHA.,ADVOCATE FOR R-1;
SRI.S.Y.PARTHASARATHY., ADVOCATE FOR R-3;
NOTICE TO R-2 IS DISPENSED WITH V.O.D 13.08.2026)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.104 OF
THE CPC, AGAINST THE ORDER DT.27.05.2019 PASSED ON IA
NO.2 AND 5 IN O.S.NO.3648/2014 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-32),
BENGALURU CITY.
IN MFA NO. 4721/2025:
BETWEEN:
1. SRI KRISHNA HOMES,
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.1074, 11TH MAIN,
HAL II STAGE,
BENGALURU - 560008
REP.BY ITS PARTNERS
1. SRI T K DODDANNA
S/O LATE KARIYANNA
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2. MRS. K POORNIMA
W/O SRI D S SRINIVAS
.… APPELLANT
(BY SRI. P.N.MANMOHAN, ADVOCATE FOR
SRI.VINAY N, ADVOCATE)
AND:
1. SRI. M.F.KAISAR
S/O SRI ADAM SHARIF,
AGED ABOUT 47 YEARS
R/AT NO.248, 1ST MAIN
2ND CROSS, VIJINAPURA
DOORAVANINGAR
BENGALURU - 560 016
2. SRI NASEER
S/O SRI ABDUL RAHIM
R/AT NO.102, HOODI CIRCLE
MAHADEVAPURA POST
BENGALURU - 560 048
3. SRI SHAHAJAHAN
S/O ABDUL RAHIM
R/AT NO.102, HOODI CIRCLE
MAHADEVAPURA POST
BENGALURU - 560 048
…RESPONDENTS
(BY SRI.SYED KHALEEL PASHA., ADVOCATE FOR R-1)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.104 OF
THE CPC, PRAYING TO SET ASIDE THE ORDER DATED
22.03.2025 PASSED ON I.A. NO.III/2024 IN O.S.NO.3648/2014
BY THE COURT OF XX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, (CCH-32), BENGALURU AND CONSEQUENTLY ALLOW
I.A.NO.3/2024.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
MFA No.6631/2025 is preferred by the appellant, who is
defendant No.16 in O.S.No.3648/2014, seeking to set aside the
order dated 27.05.2019 passed on I.A.Nos.2 and 5 by the XX
Additional City Civil and Sessions Judge, Bengaluru.
2. MFA No.4721/2025 is preferred by the appellant,
who is defendant No.16 in O.S.No.3648/2014, against the
impugned order passed on I.A.No.3 by the XX Additional City
Civil and Sessions Judge, Bengaluru.
3. In both these appeals, respondent No.1 is the
plaintiff and respondent Nos.2 and 3 are defendant Nos.1 and 2
before the trial Court.
4. With the consent of both learned counsel, the
matters are taken up for final disposal.
5. The parties to the proceedings shall be referred to
as per their status before the trial Court as plaintiff and
defendants.
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6.1. A suit came to be filed by the plaintiff for the relief
of declaration of ownership of the plaintiff over the suit
schedule properties; to declare the sale deed dated 18.08.2006
executed by defendant Nos.4 to 12 in favour of defendant
No.16 to be null and void and not binding on the plaintiff and
consequently, the sale deed dated 28.08.2006 allegedly
executed by defendant No.4 in favour of defendant No.5 to be
declared as null and void and for the relief of permanent
injunction.
6.2. The plaintiff filed I.A.Nos.2 and 5 to restrain the
defendants from alienating, encumbering the suit schedule
properties and further restraining them from changing the
nature of the suit schedule properties till disposal of the suit.
6.3. These applications, upon service of notice to the
defendants, were seriously opposed by defendant No.16 as well
as defendant Nos.1 and 2. Defendant Nos.1 and 2 took up a
contention that the plaintiff is not in possession of the suit
schedule properties; he is the owner of the suit schedule
property and defendant Nos.1 and 2 are in possession of the
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suit properties. Whereas defendant No.16 took up a plea that it
acquired ownership over the suit schedule property site No.103
by way of a registered sale deed dated 07.03.2008 and secured
an approved plan, pursuant to the lawful possession, for
putting up construction and accordingly has completed the
construction in the suit schedule properties.
6.4. The trial Court, upon the arguments of the learned
counsel for the plaintiff, defendant Nos.1, 2 and 16 came to the
conclusion that defendant No.1, 2 and 16 produced several
documents to show that prima facie they have established their
rights over the suit schedule properties and that defendant
Nos.1 and 2 along with defendant No.16 have put up some
construction over the suit schedule properties. The trial Court
also came to the conclusion that the plaintiff has failed to
establish prima facie case for grant of an order of temporary
injunction and also the balance of convenience does not lie
either with the plaintiff or with defendant Nos.1, 2 and 16 and
consequently, passed an order on I.A.Nos.2 and 5 directing
both parties to maintain status quo over the suit schedule
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properties, which would meet the ends of justice to preserve
the properties.
6.5. It is relevant to mention that aggrieved by the
order passed on I.A.Nos.2 and 5, defendant No.16 preferred
the application-I.A.No.3 seeking to modify the status-quo order
passed by the trial Court in I.A.Nos.2 and 5 and permit
defendant No.16 to attend to the interior work of the building
constructed in the property No.103, Khatha No.225/400,
Mahadevapura CMC Khata No.631 and other properties in
possession and enjoyment of defendant No.16.
6.6. The application-I.A.No.3 was contested by the
plaintiff, who denied the entire contention, the averments made
in the affidavit and sought for dismissal of the application.
6.7. The learned trial Judge, after hearing the learned
counsel for both parties, did not agree with learned counsel
appearing for defendant No.16 on the ground that the said
defendant No.16 did not disclose any changed circumstances to
modify the interim order passed by the Court on I.A.Nos.2 and
5 and accordingly, rejected the application-I.A.No.3.
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6.8. It is on these two impugned order passed by the
trial Court on I.A.Nos.2 & 5 and I.A.No.3, respectively, in these
appeals, defendant No.16 is before this Court challenging the
same.
7. In view of the fact that both these appeals arise out
of the very same suit; on I.A.Nos.2 and 5, at the instance of
the plaintiff, an order of status-quo was granted and I.A.No.3
filed by defendant No.16 to modify the interim order granted in
the above said applications having been rejected, this Court
deems it appropriate to dispose of these appeals by virtue of a
common order, as the facts involved are one and the same,
common question of law and facts are involved in the above
said case.
CONTENTIONS OF LEARNED COUNSEL FOR THE
APPELLANT-DEFENDANT NO.16
8. It is the vehement contention of learned counsel for
defendant No.16 that the trial Court, vide an order dated
27.05.2019, granted status-quo to be maintained despite the
plaintiff not making out the case for grant of an interim order
even according to the said impugned order and the trial Court
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clearly held that the plaintiff has not made out a prima facie
case and so also the defendants have not made out a prima
facie case or balance of convenience to grant an interim order
and accordingly, passed an order of status-quo.
8.1. Learned counsel vehemently contends that granting
of an order of status-quo is clearly illegal, contrary to law,
erroneous and perverse considering the facts and
circumstances of the case on hand. Learned counsel further
contends that the trial Court ought not to have been granted an
order of status-quo when the plaintiff has not made out a prima
facie case so also the other two ingredients of balance of
convenience and irreparable injury and hardship. It is further
contended that the trial Court has observed in its order that if
the interim order as sought for by the plaintiff is granted, the
same would cause loss to defendant Nos.1, 2 and 16 and when
such observation and finding was arrived at, the question of
granting an order of status quo, for that matter, is clearly
perverse and illegal.
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8.2. Learned counsel further contends that defendant
No.16 has invested huge amount of money in crores for
development of the properties by borrowing money from
Financial Institutions. This aspect of the matter has been
conveniently ignored by the trial Court and has passed an
unreasonable order of status quo to be maintained, which
directly affects the rights of defendant No.16 and also causes
irreparable injury and hardship financially and otherwise to
defendant No.16.
8.3. Learned counsel further contends that defendant
No.16 has put up construction of a building even prior to filing
of the suit which has been observed by way of a finding by the
trial Court and has come to the conclusion that the plaintiff did
not make out a prima facie case or balance of convenience or
for that matter, irreparable injury to be caused to the plaintiff
and hence, passed an order of status quo. Learned counsel
further contends that the trial Court has failed to elaborate the
order of status quo without mentioning the nature of status quo
in its order. Therefore, he contends that when there is no
clarity with regard to how the status quo has to be maintained,
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it becomes an unreasonable order, which would be a dangerous
order in the hands of the party, who is not in possession to
infringe into the rights of the party, who is in possession and
enjoyment of the suit schedule properties. Learned counsel
further contends that the impugned order is apart from being
perverse, it is unsustainable on several other grounds stated
hereinabove.
8.4. It is contended by learned counsel that once
defendant Nos.16 has made out a prima facie case to show that
defendant No.16 is in possession and having put up
construction of a building in the suit schedule properties, the
trial Court could not have passed an order of status quo
thereby affecting the basic rights of defendant No.16 to enjoy
the suit schedule properties. Therefore, defendant No.16
cannot be made to suffer for the order having been passed to
maintain status quo as it does not favour either of the parties
and rather it affects defendant No.16 more than the plaintiff.
Learned counsel further contends that since the construction
has already been put up by defendant No.16, the trial Court
ought to have taken into consideration the fact that the
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property would be wasted, if it is not maintained by further
interior structures or renovations in the suit schedule properties
as defendant No.16 is admittedly in possession and enjoyment
of the suit schedule properties. Therefore, learned counsel
contends that either way upon bare perusal, the impugned
order is clearly perverse, illegal and arbitrary.
8.5. Learned counsel further contends that in view of the
order of status quo having been passed on I.ANos.2 and 5, the
appellant-defendant No.16 filed an application-I.A.No.3 seeking
modification of the order of status quo. However, during the
course of the application and the trial, defendant No.16 was
under the impression that the entire suit would be disposed of
and therefore, it did not precipitate and press upon I.A.No.3 for
an expedient order. Hence, when the suit proceedings was
delayed by the plaintiff, defendant No.16 was left with no other
alternative than to press for consideration of I.A.No.3 at a later
point of time and hence, there was a delay in passing of the
order on I.A.No.3, which came to be passed on 22.03.2025.
Whereas the applications filed in I.A.Nos.2 and 5, the order of
status quo came to be passed on 27.05.2019.
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8.6. Learned counsel vehemently contends that as he
had stated earlier with regard to the applications that was
argued on I.A.Nos.2 and 5, the contentions almost remain
same with regard to defendant No.16 having invested huge
amount of money for development and construction of the suit
properties. It is also vehemently contended that defendant
No.16 borrowed huge amount of money and if defendant No.16
is not now permitted to put up construction and modify the
order, than defendant No.16 would be put to severe hardship
and much inconvenience would be caused, the balance of
convenience certainly shifts in its favour rather than that of the
plaintiff and therefore, sought for modification of the order of
status quo.
8.7. Learned counsel further contends that in view of the
fact that the plaintiff has dragged on the suit of the year 2014
for almost a period of 10 years without going on with the trial,
defendant No.16 was compelled to press on the application-
I.A.No.3 where no orders were passed with regard to
modification of the order of status quo. Ultimately, the
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application was considered by the trial Court for modification
and by the impugned order, the trial Court has rejected the
application.
8.8. Learned counsel further contends that the trial, has
already commenced, the evidence of PW.1 was recorded and he
has admitted the photographs confronted to him in the witness
box with regard to the building having been put up by
defendant No.16 and the same is marked as an exhibit.
However, the trial Court has not taken the same into
consideration while deciding the application-I.A.No.3 for
modification of the interim order. Learned counsel further
contends that the only error committed by defendant No.16
was that it did not move the application-I.A.No.3 at the earliest
point of time and this was for the reason that defendant No.16
was under the impression that the suit itself would be disposed
of expediently but that was not to be done as the plaintiff after
obtaining an order of status quo went on prolonging and
protracting the matter to deny the rights of defendant No.16
over the suit schedule properties.
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8.9. Learned counsel for defendant No.16 further
contends that the building constructed in the property is lying
vacant and no further works are being undertaken in view of
the order of status quo granted by the trial Court, which
apparently causes irreparable injury and hardship to defendant
No.16 for having already spent huge amount of money and not
getting any fruits of it and would have to pay huge amount of
interest to the Financial Institutions. Learned counsel further
contends that this being the facts of the case, the trial Court
ought to have taken into consideration these crucial aspects of
defendant No.16 being in possession, having put up
construction over the suit schedule properties and the property
lying vacant and not utilized, being put to waste and damage,
the order of status quo ought to have been vacated. But on the
contrary, the trial Court has rejected the application-I.A.No.3,
which is illegal and perverse and hence, he seeks to allow both
the appeals and consequently, set aside the order and permit
defendant No.16 to put up construction or modification of the
properties with regard to interior work in the building and also
other works.
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8.11. In both these appeals, learned counsel for the
appellant-defendant No.16 has relied upon the following
judgments in support of his case:
i) Union of India and others vs. Vasavi Cooperative
Housing Society Limited and others [(2014) 2
SCC 269);
ii) Arjun Singh vs. MohindraKumar and others
[1963 SCC OnLine SC 43];
iii) N.Ramaiah vs. Nagaraj.S., and another [ILR
2001 KAR 3466];
iv) Kashi Math Samsthan and another vs. Shrimad
Sudhindra Thirtha Swamy and another [(2010) 1
SCC 689]; and
v) Sri K.S.Basavanagowda vs. Sri Prahlada Rao and
others [RFA No.785/2013 C/w. RFA No.784/2013
dated 20.12.2019].
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CONTENTIONS OF LEARNED COUNSEL FOR
RESPONDENT NO.1-PLAINTIFF
9. Per contra , learned counsel appearing for
respondent No.1-plaintiff vehemently objected to the
contention so put forth by defendant No.16. It is contended by
learned counsel that the relief sought for by defendant No.16
on I.A.No.3 is virtually for modification of the order of status
quo, which has rightly been rejected as defendant No.16 is now
seeking by the application-I.A.No.3 for an order to modify the
order of status quo to put up construction of the building in the
suit schedule properties.
9.1. It is also the contention of learned counsel for
respondent No.1 that the plaintiff is the absolute owner of the
suit schedule properties and there is no right vested with
defendant No.16 on the suit schedule properties and defendant
No.16 has illegally put up construction over the suit schedule
properties in violation of the order of status quo granted by the
trial Court. It is also the contention of learned counsel that the
plaintiff being the absolute owner of the suit schedule
properties, the trial Court has considered the same, passed a
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well reasoned order on I.A.Nos.2 and 5 granting an order of
status quo to be maintained by both parties and despite
granting such an order, defendant No.16, has violated the said
order, has put up construction in the suit schedule properties
and defendant No.16 has not made out any changed
circumstances for interference of the trial Court or for that
matter, this Court with the order of status quo passed by the
trial Court on I.A.Nos.2 and 5.
9.2. Learned counsel for the plaintiff further vehemently
contends that the order passed by the trial Court on I.A.Nos.2
and 5 also does not call for interference as the trial Court has
looked into the pleadings and materials placed on record and
having been satisfied with the case made out by the plaintiff,
the trial Court has passed an order of status quo which is an
equitable discretionary order so that both parties maintain the
nature of the suit schedule properties and not to change the
same, till the disposal of the suit as the outcome of the suit will
decide the rights of the parties and till then, the maintenance of
the status quo will preserve the property. Therefore, if the
plaintiff succeeds, he will be benefited of the suit schedule
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properties and in case he does not, defendant No.16 is entitled
to make use of the properties in a manner known to law.
Therefore, he sustains the impugned order passed on I.A.Nos.2
and 5 so also on I.A.No.3, whereby the trial Court rejected the
application of defendant No.16 seeking modification of the
order of status quo.
9.3. Learned counsel further contends that there is no
illegality or perversity in the impugned order passed by the
learned trial Judge and accordingly, he seeks dismissal of both
the appeals as being bereft of merits.
10. I have heard learned counsel for the appellant-
defendant No.16 and learned counsel for respondent No.1-
plaintiff.
11. The points that arise for consideration by this Court
are:
1. Whether the impugned order passed by the
trial Court on I.A.Nos.2 and 5 granting an
order of status quo is justified and whether it
calls for interference?
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2. Whether the impugned order passed by the
trial Court on I.A.No.3 filed under Order 39
Rule 4 of CPC by defendant No.16 seeking
modification of the interim order deserves to
be interfered with and;
3. What order?
12. Apparently, it is not in dispute that the suit is filed
by the plaintiff for the relief of declaration to declare the
plaintiff to be the absolute owner so also to declare the sale
deed dated 18.08.2006 executed by defendant Nos.4 to 12 in
favour of defendant No.16 to be null and void and subsequent
sale deed of 28.08.2006 executed by defendant No.4 in favour
of defendant No.5 to be null and void.
13. Defendant Nos.1, 2 and 16 have pleaded before the
trial Court that the plaintiff is not the owner of the suit schedule
property and that the deeds of the plaintiff are not legal
documents so also the sale deeds are not registered with the
jurisdictional registrar within the city. Hence, the contention
that plaintiff would not have a valid right and title over the suit
schedule properties. It is further seen that defendant Nos.1, 2
and 16 have claimed that they have purchased the suit
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schedule properties by way of a registered sale deed and
thereafter, defendant No.16 has apparently obtained approved
sanction plan for construction of a building and it has invested
huge amount of money for putting up the said construction and
thereafter, it has also put up construction in the suit schedule
properties.
14. The trial Court has observed in its impugned order
that defendant Nos.1, 2 and 16 have produced several
documents which prima facie establishes their rights over the
suit schedule properties. The trial Court has also held that
defendant Nos.1, 2 and 16 have put up illegal construction in
the suit schedule property despite an order of status quo
passed by the trial Court. All these facts will have to be
adverted to during the course of trial as to whether the
construction has been put up prior to filing of the suit by
defendant No.16 or whether it is put up after the order of
status quo is passed. As defendant No.16 contends that the
construction is put up prior to filing of the suit after the sale
deed was obtained by defendant No.16 and after having
secured a proper sanction plan from the Competent Authority.
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It is also relevant to see that the trial Court has come to a
conclusion that the plaintiff has not established a prima facie
case for grant of an order of temporary injunction.
15. When such being the case, while granting an order
of temporary injunction, the trial Court is required to see three
essential requirements namely prima facie case, balance of
convenience, irreparable injury and hardship that would be
caused more to which of the party.
16. In the present case on hand, the trial Court has
come to the conclusion that the plaintiff has not made out a
prima facie case and that defendant Nos.1, 2 and 16 has
produced several documents to establish a prima facie right
over the suit schedule properties and that a construction has
been put up in the suit schedule properties. The question of
granting status quo without mentioning the details of what is
the nature of status quo may not be the correct order to have
passed by the trial Court. If the trial Court were to grant an
order of status quo, under such circumstances, the trial Court
should have specified the details of the status quo as which of
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the party is residing or in possession and what is the nature of
the property and what is the nature of the status quo to be
maintained by either of the party. Leaving it open and merely
stating status quo is a dangerous order, which can be twisted
by either of the party to get into either possession by the non-
party, who is not in possession or by ousting the party, who is
in possession and securing forcible possession in an immovable
suit schedule properties. Therefore, in my humble opinion, the
impugned order passed by the trial Court on I.A.Nos.2 and 5
are not sustainable as the trial Court has though adverted to
the issue with regard to plaintiff not having made out a prima
facie case and defendant Nos.1, 2 and 16 having produced
several documents and coming thereby to a conclusion that
both parties i.e., plaintiff as well as defendant Nos.1, 2 and 16
have failed to establish prima facie case. Hence, order of status
quo, is not sustainable one and the same is illegal and
perverse.
17. Once the trial Court comes to a conclusion that
defendant No.16 has established certain rights over the
property and a construction is put up in the suit schedule
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properties, the plaintiff having not made out a prima facie case,
the question of granting an order either in favour of plaintiff or
for that matter an order of status quo without specifying the
details of the status quo cannot be sustained.
18. Under the circumstances, the impugned order
passed on I.A.Nos.2 and 5 cannot be sustained and the same
requires to be set aside.
19. Now coming to the question of the orders passed on
I.A.No.3 in the very same suit which is challenged in MFA
No.4721/2025 by defendant No.16 as the appellant, it is not in
dispute that I.A.No.3 came to be filed by defendant No.16
seeking for an order of modification of the order of status quo
passed by the trial Court on I.A.Nos.2 and 5 and consequently
permitting defendant No.16 to attend to the interior work of the
building constructed in the suit schedule property till the
outcome of the suit.
20. Defendant No.16 has clearly narrated in the
affidavit annexed to the application that the plaintiff after
securing the order of status quo and having the knowledge and
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clearly coming to know that there is a registered sale deed in
favour of defendant Nos.1, 2 and 16 and also the construction
being put up of a commercial building, prior to filing of the suit,
has deliberately prolonged and protracted the proceedings for
almost 10 years after filing of the suit, thereby rendering the
purchase and the construction being put up in the suit schedule
property by defendant No.16 is redundant and fetching no
benefit and interest for the property so constructed in the suit
schedule.
21. It is relevant to see that defendant Nos.1, 2 and 16
has produced several documents to show that defendant No.16
has put up construction in the suit schedule property. These
documents were ignored by the trial Court, though it has come
to a conclusion in the application filed earlier for grant of status
quo that defendant Nos.1, 2 and 16 have produced sufficient
materials to show that defendant No.16 has put up construction
in the suit schedule properties. However, the trial Court has
merely dismissed the application-I.A.No.3 for modification of
the order of status quo solely on the ground that defendant
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No.16 has not disclosed any changed circumstances to modify
the interim order granted by the trial Court.
22. Apparently, it is seen that defendant No.16 is in
possession and enjoyment of the suit schedule properties by
virtue of the registered sale deeds and the registered sale
deeds are presumptive in nature and the registered sale deed is
of 18.08.2006 and it is also not in dispute that an approved
sanction plan is obtained by defendant No.16 from the
Competent Authority for putting up a commercial building in
the suit schedule property. The surmounting interest rates on
the loan would certainly be the reason for modification of the
order.
23. Under the circumstances, the trial Court ought to
have taken these aspects into consideration while considering
I.A.No.3 rather than dismissing the application mechanically by
holding that there is no changed circumstances to modify the
interim order.
24. In my view, the trial Court primarily was not right
and correct in granting an order of status quo on the
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application-I.A.Nos.2 and 5, when it had come to the conclusion
that defendant No.16 has produced cogent documents to show
that it is in possession of the suit schedule properties and
subsequent thereto, since there was a protraction of the
proceedings by the plaintiff for almost 10 years, defendant
No.16 having moved the application-I.A.No.3, the trial Court
ought to have taken that into consideration as the suit is not
disposed of, though it is filed in the year 2014 to modify the
order and thereafter impose certain conditions with regard to
the outcome of the suit and the construction, if any, being put
up by defendant No.16 would not enure to the benefit and
defendant No.16 to not claim any equity over the construction
put up in the suit schedule properties in case the plaintiff
succeeds in the suit. Having not done the same, the trial Court
has committed a serious error, legality and perversity in
passing the order on I.A.No.3 by dismissing the application,
which in my opinion is not correct. The same requires to be set
aside.
25. Learned counsel for defendant No.16 has produced
certain photographs before this Court which clearly establishes
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that there is a construction of three floor building in the suit
schedule property and the same is admitted in the cross-
examination by PW.1, which is marked as Ex.D1. Therefore,
there is no dispute to the fact that there is a construction of a
building put up by defendant No.16 in the suit schedule
property.
26. The Hon'ble Apex Court in the case of Kashi Math
Samsthan (supra) in paragraph No.16 held as under:
"16. It is well settled that in order to obtain an
order of injunction, the party who seeks for grant of
such injunction has to prove that he has made out a
prima facie case to go for trial, the balance of
convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not
granted. But it is equally well settled that when a
party fails to prove prima facie case to go for trial,
question of considering the balance of convenience
or irreparable loss and injury to the party concerned
would not be material at all, that is to say, if that
party fails to prove prima facie case to go for trial, it
is not open to the court to grant injunction in his
favour even if, he has made out a case of balance of
convenience being in his favour and would suffer
irreparable loss and injury if no injunction order is
granted. Therefore, keeping this principle in mind, let
us now see whether the appellant has been able to
prove prima facie case to get an order of injunction
during the pendency of the two appeals in the High
Court."
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27. It would be relevant to extract paragraph Nos.21
and 22 of N.Ramaiah's case (supra), which reads as under:
" 21. The Court while making an order to
maintain status quo, should endeavour to clarify the
conditions, in the context of which or subject to
which, such direction is issued, as the words status
quo take contextual meaning and may give room for
several different interpretations. Let us illustrate.
Illustration (i):
If a person puts up a construction in his site
violating the set back requirements and if the owner
of a property approaches the Court seeking an
injunction restraining the adjoining owner from
proceeding with the construction in violation of
building bye-laws and the Court orders status quo,
the order may mean that no further construction
shall be made and the construction shall be
maintained in the same position as on the date of
the order.
Illustration (ii):
If a member of a joint family files an
application seeking an injunction in a suit for
partition, restraining the kartha from alienating the
joint family property and the Court grants an order
of status quo, it may mean that the defendant
should not alienate the property.
Illustration (iii):
If a plaintiff seeks an injunction restraining the
defendant from harvesting a crop in the suit land
and the Court orders status quo, it may mean that
defendant should not harvest the standing crop.
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Illustration (iv):
In a service litigation, if the employee seeks a
direction to employer not to terminate his services
and the Court directs defendant to maintain status
quo, it may mean that defendant should not
terminate the service of the employee.
22 . An order of status quo is a specie of
interim orders, when granted indiscriminately and
without qualifications or conditions, leads to
ambiguity, difficulties, and injustice. If Courts want
to give interim relief, they should endeavour to give
specific injunctive relief. If grant of order of 'status
quo' is found to be the only appropriate relief, then
Courts should indicate the nature of status quo, that
is whether the status quo is in regard to possession,
title, nature of property or some other aspect.
Merely saying 'status quo' or 'status quo to be
maintained' should be avoided. If in a suit for
injunction, where plaintiff claims that he is in
possession of the suit property and the defendant is
attempting to interfere with his possession, and the
defendant contends that he is in possession and
petitioner was never in possession, if the Court
merely directs status quo to be maintained by
parties, without saying anything more, it Will cause
confusion and in many cases even lead to breach of
peace. On the basis of such order, the plaintiff
would contend that he is in possession and he is
entitled to continue in possession; and the
defendant would contend that he is in possession
and he is entitled to continue in possession. In such
a case, if the Court wants to direct status quo, it
should specify the context in which, or conditions
subject to which, such status quo direction is
issued."
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28. It would be also relevant to extract paragraph
No.14 of Arjun Singh's case (supra), which reads as under:
" 14. It is needless to point out that
interlocutory orders are of various kinds; some like
orders of stay, injunction or receiver are designed to
preserve the status quo pending the litigation and to
ensure that the parties might not be prejudiced by
the normal delay which the proceedings before the
court usually take. They do not, in that sense, decide
in any manner the merits of the controversy in issue
in the suit and do not, of course, put an end to it
even in part. Such orders are certainly capable of
being altered or varied by subsequent applications
for the same relief, though normally only on proof of
new facts or new situations which subsequently
emerge. As they do not impinge upon the legal rights
of parties to the litigation the principle of res judicata
does not apply to the findings on which these orders
are based, though if applications were made for relief
on the same basis after the same has once been dis-
posed of the court would be justified in rejecting the
same as an abuse of the process, of court. There are
other orders which are also interlocutory, but would
fall into a different category. The difference from the
ones just now referred to lies in the fact that they
are not directed to maintaining the status quo or to
preserve the property pending the final adjudication,
but are designed to ensure the just, smooth, orderly
and expeditious disposal of the suit. They are
interlocutory in the sense that they do not decide
any matter in issue arising in the suit, nor put an end
to the litigation. The case of an application under
Order IX, Rule 7 would be an illustration of this type.
If an application made under the provisions of that
rule is dismissed and an appeal were filed against the
decree in the suit in which such application were
made, there can be no doubt that the propriety of
the order rejecting the reopening of the proceeding
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and the refusal to relegate the party to an earlier
stage might be canvassed in the appeal and dealt
with by the appellate court. In that sense, the refusal
of the court to permit the defendant to "set the clock
back" does not attain finality. But what we are
concerned with is slightly different and that is
whether the same Court is finally bound by that
order at later stages, so as to preclude its being
reconsidered. Even if the rule of res judicata does not
apply it would not follow that on every subsequent
day on which the suit stands adjourned for further
hearing the petition could be repeated and fresh
orders sought on the basis of identical facts. The
principle that repeated applications based on the
same facts and seeking the same reliefs might be
disallowed by the court does not however necessarily
rest on the principle of res judicata. Thus if an
application for the adjournment of a suit is rejected,
a subsequent application for the same purpose even
if based on the same facts, is not barred on the
application 'of any rule of res judicata, but would be
rejected for the same grounds on which the original
application was refused. The principle underlying the
distinction between the rule of res judicata and a
rejection on the ground that no new facts have been
adduced to justify a different order is vital. If the
principle of res judicata is applicable to the decision
on a particular issue of fact, even if fresh facts were
placed before the Court, the bar would continue to
operate and preclude a fresh investigation of the
issue, whereas in the other case, on proof of fresh
facts, the court would be competent, nay,, would be
bound to take those into account and make an order
conformably to the facts freshly brought before the
court."
29. In view of the discussions made hereinabove, I am
of the opinion that both the appeals deserve to be allowed.
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30. Accordingly, I pass the following:
ORDER
1) Both the appeals are allowed .
2) In MFA No.6631/2025, the impugned order
passed by the learned trial Judge in
O.S.No.3648/2014 dated 27.05.2019 on
I.A.Nos.2 and 5 is hereby set aside.
Consequently, the interim order of status-quo
is set aside.
3) In MFA No.4721/2025, the impugned order
passed by the learned trial Judge on I.A.No.3
filed under Order 39 Rule 4 r/w Section 151 of
CPC in O.S.No.3648/2014 dated 22.03.2025 is
hereby set aside.
4) In view of the interim order of status-quo
having been set aside, it would be open for the
appellant-defendant No.16 to proceed with the
construction in the suit schedule property.
5) Any construction so permitted to be put up by
the appellant-defendant No.16 would however
be subject to the outcome of the suit and in
case respondent No.1-plaintiff succeeds, the
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appellant-defendant No.16 shall not claim
equity.
6) It is made clear that this Court has not
expressed any opinion on the merits of the
matter including the title with regard to
plaintiff or for that matter, the title of vendor
of defendant No.16.
7) All contentions of the parties are kept open,
including the documents disputed with regard
to registration having taken place at Madras, of
both parties.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
VM
List No.: 1 Sl No.: 36