-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4344 OF 2020 (CPC)
C/W .
CIVIL REVISION PETITION NO. 278/2020
IN MFA NO. 4344/2020:
BETWEEN:
1. SMT. RAJESHWARI LAKSHMINARAYAN
W/O LATE LAKSHMINARAYAN RAO,
AGED 66 YERAS,
R/AT NO.306, 5TH MAIN,
3RD STAGE, 2ND BLOCK,
BASAWESHEARANAGAR,
NEAR CARMAL HIGH SCHOOL,
BENGALURU - 560 079.
2. SRI M. L. VINAYA SWAROOP
S/O LATE LAKSHMINARAYAN RAO,
AGED 43 YEARS, R/AT NO. 225/2-3,
4TH MAIN ROAD, 2ND BLOCK,
BYRAPPA BLOCK, THYAGRAJANGARA,
BENGALURU - 560 028.
3. SRI M. L. VIVITH KUMAR
S/O LATE LAKSHMINARAYAN RAO,
AGED 38 YEARS, R/AT NO.306,
5TH MAIN, 3RD STAGE, 2ND BLOCK,
BASAWESHEARANAGAR,
-2-
NER CARMAL HIGH SCHOOL,
BENGALURU - 560 079.
... APPELLANTS
(BY SRI. RAGHU PRASAD B S., ADVOCATE)
AND:
1. MR. L. VISHAL RAAO @ M. L VISHAL
S/O LATE LAKSHMI NARAYAN RAO,
AGED 45 YEARS,
2. MRS. M. REVATY VISHAL
W/O L. VISHAL RAAI @ M.L.VISHAL,
AGED 40 YERS,
BOTH RESIDING AT NO 99,
1ST MAIN ROAD, MMG TEMPLE
BELL LAYOUT SRIRAMPURA 3RD STGAE,
NEAR MAHALINGESHWRA TEMPLE,
LINGABUDIPALYA MAIN ROAD,
MYSORE - 570 023.
3. M/S SYMBIOSIS HOMES
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS OFFICE AT MANI NIWAS, NO 6,
JAIN TEMPLE STREET, V.V.PURAM,
BENGALURU - 560 004.
4. PADMAVTI DR RAMACHANDRA
RAO EDUCATION TRUST
HAVING REGISTERED OFFICE AT
NO 391/32, 5TH CROSS,
H. SIDDAIAH ROAD,
BENGALURU - 560 027.
5. SMT. REKHA MATTA
D/O LATE M.T. MATTA,
R/AT 201, SUPRABHAT,
-3-
RESIDENCY ROAD,
4. BANJARA HILLS,
HYDERABAD - 34.
... RESPONDENTS
(BY SRI. SHARATH GOWDA., ADVOCATE FOR C/R1 & R2;
SRI. GOUTHAM CHAND.S.F., ADVOCATE FOR R3;
SRI. AJIT KALYAN, ADVOCATE FOR R5;
NOTICE TO R.4 IS DISPENSED WITH
VIDE ORDER DATED 07.01.2021)
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
SECTION 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED
22.06.2020 PASSED ON IA NO.I IN O.S. NO.8845/2019 ON THE
FILE OF THE V ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-13), ALLOWING THE IA.NO.1
FILED U/O 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
IN CRP NO. 278/2020
BETWEEN :
1. SMT. RAJESHWARI LAKSHMINARAYANA
W/O LATE LAKSHMINARAYANA RAO,
AGED 66 YERAS,
R/AT NO.306, 5TH MAIN,
3RD STAGE, 2ND BLOCK,
BASAWESHEARANAGAR,
NEAR CARMAL HIGH SCHOOL,
BENGALURU - 560 079.
2. SRI M. L. VINAYA SWAROOP
S/O LATE LAKSHMINARAYAN RAO,
AGED 43 YEARS,
R/AT NO. 225/2-3, 4TH MAIN ROAD,
2ND BLOCK, BYRAPPA BLOCK,
THYAGRAJANGARA, BENGALURU - 560 028.
-4-
3. SRI M. L. VIVITH KUMAR
S/O LATE LAKSHMINARAYAN RAO,
AGED 38 YERS,
R/AT NO.306, 5TH MAIN, 3RD STAGE,
2ND BLOCK, BASAWESHARANAGAR,
NER CARMAL HIGH SCHOOL,
BENGALURU - 560 079.
4. PADMAVTI DR. RAMACHANDRA
RAO EDUCATION TRUST
HAVING REGISTERED OFFICE AT
NO 391/32, 5TH CROSS,
H. SIDDAIAH ROAD,
BENGALURU - 560 027.
... PETITIONERS
(BY SRI. RAGHU PRASAD B S., ADVOCATE)
AND :
1. MR. L. VISHAL RAAO @ M L VISHAL
S/O LATE LAKSHMI NARAYAN RAO,
AGED 45 YEARS,
2. MRS. M. REVATY VISHAL
W/O L. VISHAL RAAI @ M.L.VISHAL,
AGED 40 YERS,
BOTH RESIDING AT NO 99,
1ST MAIN ROAD, MMG TEMPLE
BELL LAYOUT SRIRAMPURA 3RD STGAE,
NEAR MAHALINGESHWRA TEMPLE,
LINGABUDIPALYA MAIN ROAD,
MYSORE - 570 023.
3. M/S SYMBIOSIS HOMES
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS OFFICE AT MANI NIWAS, NO 6,
-5-
JAIN TEMPLE STREET, V.V.PURAM,
BENGALURU - 560 004.
4. SMT. REKHA MATTA
D/O LATE M.T. MATTA,
R/AT 201, SUPRABHAT,
RESIDENCY ROAD,
4. BANJARA HILLS,
HYDERABAD - 34.
... RESPONDENTS
(BY SRI. SHARATH GOWDA., ADVOCATE FOR C/R1 & R2;
SRI. GOUTHAM CHAND.S.F., ADVOCATE FOR R3;
SRI. AJIT KALYAN, ADVOCATE FOR R4)
THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER
DATED 22.06.2020 PASSED BY V ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN O.S.NO.8845/2019 ON
IA.2 FILED UNDER ORDER 7 RULE 11(a) OF CPC AND ALLOW
THE APPLICATION - IA.2 FILED BY THE PETITIONERS.
THIS MISCELLENEOUS FIRST APPEAL AND CIVIL
REVISION PETITION IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal in MFA No.4344/2020 is filed calling in question the order dated 22.06.2020 in O.S.No.8845/2019 on the file of the V Addl. City Civil Court, Bengaluru (for short, 'the Civil Court') whereby, the application filed by the -6- respondent No.1 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (for short, 'CPC') is allowed making absolute the ex parte order of temporary injunction granted by the Civil Court restraining the appellants from alienating the suit schedule 'B' property in favour of any third party or creating any encumbrance thereon. The Civil Revision Petition in CRP No.278/2020 is filed also impugning the order dated 22.6.2020 but insofar as the rejection of the application filed by the petitioners under Order VII Rule 11 (a & c) of CPC for rejection of the plaint.
2. The petitioners/appellants' essential grievance in both the appeal and the revision petition is that the suit schedule properties are admittedly settled to a Trust and once these properties are settled in favour of the Trust there cannot be assertion of a personal interest either by the trustees or any other person. Nevertheless, the present suit for partition is filed by the respondents - plaintiffs who -7- are some of the trustees asserting individual interests in the properties so settled in favour of the trust. The Civil Court has passed the impugned order granting temporary injunction and rejecting the application under Order VII Rule 11 of CPC overlooking this crucial facet.
3. The learned counsel for the respondents - plaintiffs submits that they cannot controvert that with the subject properties being settled in favour of a Trust, the trustees cannot assert personal right and as such, the suit for partition may not be maintainable. However, the respondents/plaintiffs, in the facts and circumstances of the case, are entitled to seek adjudication of rights as trustees under the Trust Deed and subsequent amendment thereto. As such, the respondents/plaintiffs may be permitted to withdraw the suit with liberty to institute permissible proceedings in law without prejudiced by the institution of the present suit and withdrawal thereof. -8-
4. This Court, in the facts and circumstances of the case, is of the considered view that the respondents/plaintiffs must be permitted to withdraw the suit with liberty, subject to just exceptions in law, to institute such proceedings as they could initiate in law for vindication of their rights. All the contentions that would be available to the appellants/petitioners are left open to be considered by the Court in the proceedings that the respondents- plaintiffs may initiate. It would be needless to observe that interim order of temporary injunction stand dissolved with this order.
Accordingly, the respondents/plaintiffs are permitted to withdraw the suit in O.S.No.8845/2019 and consequentially the appeal and the civil revision petition stand disposed of. Either the learned counsel for the appellants - petitioners or any of the learned counsel for the respondents may file a certified copy of this order before -9- the Civil Court for dismissal of the suit in O.S.No.8845/2019 as withdrawn subject to the liberty as aforementioned.
In view of disposal of the main matters, pending application stands disposed of accordingly.
SD/-
JUDGE SA Ct:sr