SATISH vs S. HARISH KUMAR

Court
Karnataka High Court

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HC-KAR
NC: 2026:KHC:58587
WP No. 6518 of 2020


CNR: KAHC010136042020




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 16 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 6518 OF 2020 (GM-CPC)

BETWEEN:

1. SATISH
S/O B K SHIVANNA,
AGED ABOUT 58 YEARS,
R/AT NO.338, UPPARA BEEDHI,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA - 577302.
…PETITIONER
(BY SRI. MALLAYYA M.R., ADVOCATE)







AND:


1. S. HARISH KUMAR,
S/O. U.V. SOMASHEKAR RAO,
AGED ABOUT 50 YEARS,
R/AT UPPARA BEEDHI,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA - 577302.





2. UMESH
S/O B K SHIVANNA,
AGED ABOUT 53 YEARS,
R/AT NO.338, UPPARA BEEDHI,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA - 577302.
…RESPONDENTS
(BY SRI. MANJUNATH PATTANA SHETTY, ADVOCATE FOR R1;
PETITION AS AGAINST R2 STANDS DISMISSED V/O
DTD.17.11.2023)
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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HC-KAR
NC: 2026:KHC:58587
WP No. 6518 of 2020


CNR: KAHC010136042020


THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED BY LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC AT BHADRAVATHI IN M.A.8/2019 DATED 4.2.2020
ANNEXURE-K ON I.A.NO.2 AND 4 AND ALLOW THIS WRIT
PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
- B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

ORAL ORDER
C aptioned writ petition is filed by defendant No.1,
assailing the order passed by the Appellate Court in
M.A.No.8/2019, whereby the appeal preferred by the plaintiff
came to be allowed, reversing the order of the trial Court
vacating the interim injunction granted in favour of the plaintiff.
Consequently, the Appellate Court has granted an order of
temporary injunction in favour of the plaintiff, pending disposal
of O.S.No.387/2017. The said order is impugned in the present
writ petition.
2. This Court, by order dated 23.03.2020, has stayed
the operation of the order passed by the Appellate Court.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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HC-KAR
NC: 2026:KHC:58587
WP No. 6518 of 2020


CNR: KAHC010136042020


3. Heard the learned counsel appearing for the parties
and perused the divergent orders passed by the trial Court and
the Appellate Court.
4. The first respondent-plaintiff has instituted a suit
seeking the relief of permanent injunction simpliciter, alleging
interference by defendant No.1 with the construction
undertaken by the plaintiff in the suit schedule property. In the
said suit, the plaintiff filed an application under Order XXXIX
Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short,
‘CPC’), seeking an order of temporary injunction restraining
defendant No.1 from interfering with the plaintiff’s proposed
construction.
5. Defendant No.1, upon entering appearance, filed
objections to the application and sought vacation of the ad-
interim ex-parte order of injunction by filing an application
under Order XXXIX Rule 4 of CPC.
6. The learned trial Judge, upon consideration of the
prima facie materials placed on record, proceeded to vacate the
ad-interim order of injunction, principally on the ground that
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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HC-KAR
NC: 2026:KHC:58587
WP No. 6518 of 2020


CNR: KAHC010136042020


the plaintiff had not produced the building licence. The learned
Judge was also of the view that the proposed construction
might affect the easementary rights of defendant No.1, whose
property adjoins the suit schedule property.
7. Aggrieved by the said order, the plaintiff preferred
an appeal in M.A.No.8/2019. The Appellate Court, upon an
elaborate consideration of the materials placed on record,
adverted to the sanctioned building plan and the building
licence issued by the competent local authority. The Appellate
Court also noticed discrepancies in the measurements of the
property of defendant No.1, as reflected in the Will and the
requisition submitted by defendant No.1 before the City
Municipal Council (CMC), Bhadravathi. Further, upon
considering the photographs produced by the plaintiff, the
Appellate Court differed from the conclusions reached by the
trial Court and proceeded to grant an order of temporary
injunction in favour of the plaintiff.
8. It is a settled principle that, while exercising
appellate jurisdiction under Order XLIII Rule 1 of CPC, the
Appellate Court ought not to substitute its discretion for that of
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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HC-KAR
NC: 2026:KHC:58587
WP No. 6518 of 2020


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the trial Court merely because a different view is possible.
Interference with an order granting or refusing temporary
injunction is warranted where the discretion exercised by the
trial Court is shown to be arbitrary, capricious or perverse, or
where the trial Court has acted contrary to settled principles
governing the grant of injunction.
9. In the present case, the Appellate Court has
undertaken a detailed examination of the prima facie materials
produced by both parties. It has considered the relevant
documents, assessed the circumstances surrounding the
proposed construction and examined the balance of
convenience and the comparative hardship likely to be
occasioned to the parties. The impugned order, therefore,
cannot be characterised as one passed without due
consideration of the relevant material.
10. A perusal of the impugned order indicates that the
Appellate Court has taken note of the sanctioned building plan
and the building licence obtained by the plaintiff from the City
Municipal Council, Bhadravathi. The dispute essentially
concerns the plaintiff’s proposed construction of a residential
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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WP No. 6518 of 2020


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house in the suit schedule property, which adjoins the property
of defendant No.1. Significantly, it is not the specific case of
defendant No.1 that the plaintiff is undertaking the construction
by encroaching upon any portion of defendant No.1’s property.
The apprehension expressed by defendant No.1 appears to be
that the proposed construction may affect the easementary
rights attached to his property. If the proposed construction is
contrary to the sanctioned plan, the building licence or any
applicable statutory requirement, defendant No.1 would be at
liberty to avail himself of the remedies available under the
provisions of the Karnataka Municipalities Act, 1964, and the
other applicable laws. The grant of temporary injunction in the
present suit does not, by itself, foreclose such statutory
remedies.
11. In the facts and circumstances of the case, the
balance of convenience and comparative hardship clearly lie in
favour of the plaintiff. The plaintiff is the owner of the suit
property and has obtained the requisite building licence and
approval of the building plan from the competent authority; the
proposed construction is, therefore, neither unauthorized nor
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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NC: 2026:KHC:58587
WP No. 6518 of 2020


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contrary to any sanctioned plan. An order stalling construction
of a residential house pending suit, where the trial itself is likely
to consume considerable time, would inflict serious and
continuing civil prejudice upon the plaintiff by preventing the
lawful enjoyment and development of his property and by
rendering the investment already made or to be made
unproductive. The law is well settled that in considering an
application for temporary injunction, the Court must consider
not only the existence of a prima facie case, balance of
convenience and irreparable injury, but also the conduct of the
parties; and where construction has been undertaken pursuant
to requisite permission, it would ordinarily be improper to stop
further construction, the appropriate course being to permit it
subject to the ultimate decision in the suit as held by Hon’ble
Apex Court in Mandali Ranganna v. T. Ramachandra,
(2008) 11 SCC 1 .
12. In such circumstances, equity leans in favour of the
plaintiff, and the plaintiff may be permitted to raise
construction strictly in accordance with the sanctioned plan,
expressly subject to the result of the pending civil proceedings,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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so that the rights of the parties remain protected without
causing avoidable hardship to either side.
13. Needless to observe that the findings and
observations made hereinabove are confined to the
consideration of the legality of the order passed by the
Appellate Court in M.A.No.8/2019 and shall not influence the
trial Court while adjudicating the suit on its merits.
14. Accordingly, the writ petition, stands dismissed .
All contentions of the parties are expressly kept open.
Ordered accordingly.

Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

(SACHIN SHANKAR MAGADUM)
JUDGE




SJK
List No.: 1 Sl No.: 14