1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 24TH DAY OF FEBRUARY 2010 BEFORE THE HON’BLE MR.JUSTICE ANAND BYRAREDDY REGULAR SECOND APPEAL No.396 OF 2008 CONNECTED WITH REGULAR SECOND APPEAL CROB No.27 OF 2008 IN R.S.A.No.396/2008 BETWEEN: 1. D.V.Jayakrishna Prasad, Son of D.V.Rathnam, Aged about 49 years, 2. Narendra Singh, Son of Late Balajisingh, Aged about 60 years, Both are Partners of M/s. Chitra Exhibitors, No.9/1, Shankar Market, E.S.Lane, Chickpet Cross, Bangalore – 560 053. …Appellants (By Shri. K. Raghavendra Rao, Advocate) Page Nos.1 to 11 retyped and replaced vide chamber order dated 10.11.2016. 2 AND: Sri. N. Srinivasa, Son of Late C.R.Narayanaswamy, Aged about 52 years, Residing at Patel Street, Siddlaghatta Town, Siddlaghatta. …Respondent (By Shri K. Somashekar Reddy and Shri T.N.Raghupathy, Advocates) ---- This Regular Second Appeal is filed under Sec.100 of Code of Civil Procedure, 1908, against the judgement and decree dated 2.1.2008 passed in R.A.No.144/2005 on the file of the District Judge (C/C/ of Fast Track Court), Chickballapur, allowing the appeal and confirming the judgment and decree dated 8.4.2005 passed in O.S.No.267/2002 on the file of the Principal Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, Chickballapur. IN RSA CROSS OBJECTION NO.27/2008 BETWEEN: Sri. N. Srinivasa, Son of Late C.R.Narayanaswamy, Aged about 52 years, Residing at Patel Street, Siddlaghatta Town, Chikkaballapur District. …CROSS OBJECTOR (By Shri T.N.Raghupathy and Shri K.S.Reddy, Advocates) 3 AND: 1. Sri .D.V.Jayakrishnaprasad, Son of D.V.Rathnam, Aged about 49 years, 2. Narendra Singh, Son of Late Balaji Singh, Aged about 60 years, Both are partners of M/s Chitra Exhibitors, No.9/1, Shankar Market, E.S.Lane, Chickpet Cross, Bangalore – 560 053. ,,,RESPONDENTS This RSA Cross Objection is filed under Order 41 Rule 22 of Code of Civil Procedure, 1908, in RSA 396/2008 against the judgment and decree dated 2.1.2008 passed in R.A.No.144/2005 on the file of the District Judge, (C/C of Fast Track Court), Chickballapur, allowing the appeal and confirming the judgment and decree dated 8.4.2005 passed in O.S.No.267/2002 on the file of the Principal Civil Judge, (Jr.Dn.) and Judicial Magistrate First Class, Chickballapur, decreeing the suit for permanent injunction and cross-objector therein praying to set aside the judgment and decree dated 2.1.2008 passed by the learned District Judge, (C/C of FTC), inR.A.No.144/2005, Chikkaballapur, in so far it relates to the direction issued by the learned judge to deposit a sum of Rs.10,250/- per week and grant such other reliefs as this Hon’ble Court. These R.S.A. and Cross-Objection coming on for Admission this day the court delivered the following: 4 JUDGEMENT Heard the counsel for the appellant. 2. The appellant was the defendant before the Trial Court resisting the suit for bare injunction. The Trial Court had decreed the suit even in the face of circumstance that the appellant had himself filed a suit for ejectment and that there was no question of disturbing the possession of the respondent otherwise than under due process of law. However, the Trial Court having decreed the suit, the appellant was in appeal before the First Appellate Court. The First Appellate Court while affirming the order passed by the Trial Court had imposed a condition to direct the respondent to pay a sum of Rs.10,250/- per week. The First Appellate Court while affirming the decree of the Trial Court has held as follows: “14. Before parting, I would like to dispose one more submission of the learned counsel. The counsel for appellant submitted the plaintiff is occupying the property without paying 5 anything. Injunction is a equitable relief, a person who seeks equity must also do equity. The plaintiff claims his right to occupy the property under Ex.P1 and Ex.P2 and the said agreement provides for payment of Rs.10,250/- per week to partners of Chithra Exhibitors. In 1988(2) Kar.L.J. page 455 (LIC of India Vs Bangalore L.I.C. Employees Housing Co-op. Society Ltd.). Lordship held that there should not be unconditional injunction and as far as possible Court must avoid the second bout of litigation. The observation made there under is worth quoting:- “It is time that we emulate an extremely considerate and well conceived principle enunciated by Courts in England of making an interlocutory injunction on terms so that the defendant, or even a plaintiff who suffers by the grant or refusal of an unjustified interlocutory injunction is not exposed to further bouts of litigation to seek re-compense for his travails and tribulations suffered at the hands of a free wheeling plaintiff indulging in a ho holds barred venture”. Though, said observation applies to interlocutory application, principle can be extended to final order in injunction suit. In view of the observations made above, I would like to direct that the plaintiff for occupying the suit schedule property to pay Rs.10,250/- per week without affecting the right of the 6 defendants to claim higher mesne profits and I pass the following: ORDER The appeal is allowed. The judgement and decree of Civil Judge (Jr.Dn.), Chikkaballapur in O.S.267/2002 dated 08.04.2005 is hereby confirmed subject to condition that plaintiff shall deposit a sum of Rs.10,250/- every week without affecting the right of defendants to claim higher mesne profits. Having regard to the peculiarity of the case, no order as to costs. Send LCR with copy of this judgement to the Trial Court.” 3. The First Appellate Court has directed the respondent to deposit the said sum of Rs.10,250/- per week without affecting the right of the defendants to claim higher mesne profits. The appellant is before this Court challenging the concurrent findings of the Courts below as regards the order of injunction. The primary contention being as observed 7 by the Trial Court as well as the First Appellate Court is that there was an ejectment suit filed by the appellant, which was pending consideration. Hence, the decree for permanent injunction was a gloss placed on the circumstance and it was wholly irrelevant for the Courts below in granting such a relief in favour of the plaintiff. While the respondent has preferred Cross-Objections in this appeal to challenge the direction to deposit the sum stated above. 4. The counsel for the appellant would vehemently seek to contend that the substantial question of law that would arise for consideration is whether there was a cause of action in the light of the suit for ejectment filed by the appellant pending consideration? He would further submit that the Cross- objections sought to be filed by the appellant is not maintainable as Cross-Objections can be filed under Order 41 Rule 22 only against a finding of the Courts below and since in the Cross-Objections, the respondents seeks to challenge a condition imposed, the Cross-objections would have to be 8 rejected outright and the Appeal admitted on the substantial question of law, which is raised. 5. There is no substantial question of law that would arise for consideration as the Courts below had found that the plaintiff was in possession and had granted the decree against the defendant. Though, it was possible for the suit to have been closed with an observation that since there is no possibility of the plaintiff’s possession being disturbed otherwise under due process of law in the face of the circumstance that the appellant had filed a suit. Though there was however no bar for the Courts to decree the suit in favour of the plaintiff; As it is only an interim measure the pending result of the ejectment suit filed by the appellant. The counsel for the appellant however seeks to assert that in so far as the condition imposed on the plaintiff is concerned, it is a salutary principle that has been applied by the First Appellate Court following decision of this Court, which has reviewed the entire case law on the point in the case of Life Insurance Corporation –vs- Bangalore 9 L.I.C.Employees Housing Co-operative Society Limited 1988(2) Kar.L.J., wherein this Court has expressed its anguish that in granting equitable reliefs, the fact that defendant would suffer greater hardship in the event of injunction being granted in certain circumstances and that, it is well established that such a defendant can be granted compensation to balance the scales and therefore the First Appellate Court having applied the authoritative decision of this Court, it cannot be said that there was any scope for filing Cross-objections by the respondent. 6. While the observation of this court in the case of Life Insurance Corporation cannot be negated. The question whether such a relief can be granted in all circumstances where injunction is granted is the other question. It cannot be said that the First Appellate Court has assigned any reasons to hold nor has it held an enquiry to determine the compensation or the approximate quantum of compensation to which the appellant would be entitled in holding that there ought to be a deposit of 10 Rs.10,250/- per week. On the face of it, it appears to be a relief granted by the First Appellate court, which is not permissible. It is however for the appellant to establish his claim for damages if he so wishes in the suit filed for ejectment, as relief of damages and mesne profits. It would not be within the jurisdiction of the First Appellate Court when there was no such issue as to whether or not the appellants were entitled to compensation to have granted such a relief. The assertion of the counsel for the appellant that it is a mere condition imposed for grant of injunction in favour of the plaintiff and therefore, it cannot be questioned, nor can be decided under Order 41 Rule 22 is not tenable. The very direction issued is illegal, it would result in an aberration. In the determination of any damages that may be claimed by the appellant in the pending suit for ejectment would necessarily have to be consistent with the finding that is arrived at by the First Appellate Court in imposing such a condition. Therefore, exercising power under Section 103 of the Code of Civil Procedure, 1908, the Cross-objections 11 is allowed. The Appeal is rejected as affording no substantial question of law. Sd/- JUDGE dh