Karnataka High Court
Sri Ramesh S/O Laxmanrao Hubballi vs Sri Rajendra S/O Laxmanrao Hubballi on 2 July, 2024
-1-
NC: 2024:KHC-D:9013
MFA No. 104478 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104478 OF 2023 (CPC)
BETWEEN:
SRI. RAMESH S/O. LAXMANRAO HUBBALLI,
AGE: 73 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST DHARWAD.
...APPELLANT
(BY SRI J. S. SHETTY, ADVOCATE)
AND:
1. SRI. RAJENDRA S/O. LAXMANRAO HUBBALLI,
AGE: 44 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST: DHARWAD-580020.
2. SRI. VIVEKANAND S/O. RAMESH HUBBALLI,
AGE: 42 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST DHARWAD-580020.
3. SRI. MAYUR S/O. RAMESH HUBBALLI,
Digitally signed AGE: 40 YEARS, OCC: AGRICULTURE/BUSINESS,
by MANJANNA
E R/O. HEBBALLI, TQ AND DIST DHARWAD-580020.
Location: HIGH ...RESPONDENTS
COURT OF
KARNATAKA (BY SRI. H. M. DHARIGOND, ADV. FOR R1;
NOTICE TO R2 & R3 SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, PRAYING
TO ORDER DATED 03.08.2023 PASSED ON I.A.NO. II AND IV IN
O.S.NO. 260/2022 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND CJM, DHARWAD, MAY KINDLY BE SET ASIDE WITH COST
THROUGHOUT IN THE IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:9013
MFA No. 104478 of 2023
JUDGMENT
Heard learned counsel for the appellant and learned counsel for the respondents.
2. The appellant has filed this appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 ("CPC" for short) seeking to set aside the order dated 03.08.2023 passed on I.A.Nos.II and IV in O.S.No.260/2022 by the III Additional Senior Civil Judge and CJM, Dharwad ("the Trial Court" for short).
3. For the sake of convenience, the parties are referred to as they are referred to in the suit before the Trial Court.
4. Appellant is defendant No.1, respondent No.1 is plaintiff and respondent Nos.2 & 3 are defendant Nos.2 & 3.
5. Brief facts of the case of the plaintiff are as under:
6. Defendant No.1 is the father of plaintiff, defendant No.2, and defendant No.3. The suit scheduled -3- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 properties are joint family properties and the plaintiff and defendants have 1/4th share each in the schedule properties. But defendant Nos.1 to 3 have not given any share to the plaintiff in the suit schedule properties, though there was partition between defendant Nos.1 to 3 in respect of the scheduled properties. Now defendants are trying to alienate the suit schedule properties to the prospective purchasers. Hence, the plaintiff has filed the suit in O.S.No.260/2022 for partition and separate possession of suit scheduled properties and also filed I.A.No.II under Order XXXIX Rules 1 and 2 of CPC. The Trial Court considering the material placed before it, granted temporary injunction against defendants restraining them from alienating the suit schedule properties. Aggrieved by the said order the appellant-defendant No.1 filed present appeal.
7. In this case, the defendants have not disputed the relationship between the parties, location, extent and the nature of the properties. However, defendants have denied the contention of plaintiff that, suit schedule properties-A, item No.1, property bearing Sy.No.150 measuring 4 acres 39 -4- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 guntas is self acquired property of defendant No.1 and hence plaintiff has no share in the said property. Defendants admitted that, the suit schedule properties bearing Sy.No.539/1/2, Sy.No.539/5 and Sy.No.539/4 are the joint family properties. Defendant No.1 has contended that he never tried to alienate the schedule properties, hence, he prayed to allow the appeal and set aside the impugned order.
8. Heard learned counsel for the parties, perused the material available on record. The points that would arise for Court's consideration in this appeal are as follows:
i. Whether defendant No.1 made out a primary case in his favour?
ii. Whether the balance of convenience tilts in favor of defendant No.1?
iii. Who will suffer irreparable injury, in case grant of temporary injunction or otherwise.
9. As per the case of the plaintiff, defendant No.1 is his father, defendant Nos.2 and 3 are his brothers and suit schedule properties are joint family properties of plaintiff and -5- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 defendants. It is the contention of plaintiff that defendant No.1 already allottes shares in the schedule properties in favour of defendant Nos.2 & 3, but he has not allotted any share in favour of plaintiff. Now, defendant No.1 is denying to allot share in the suit schedule properties in favour of plaintiff. However, defendant No.1 has specifically contained that, item No.1 of the schedule properties is his self acquired property and the remaining properties are the joint family and ancestral properties.
10. Learned counsel for defendant No.1 vehemently contended that, he made an application seeking permission to sell the property bearing Sy.No.150/1 of Maradagi village, i.e., suit schedule item No.1 as this property exclusively belonged to him and he had purchased said property by registered sale deed and he is in dire need of money for discharge of his debts. The learned counsel further submitted that, the documents produced by plaintiff himself clearly establishes that item No.1 of suit schedule-A has been purchased by the 1st defendant himself along with sister and it is his exclusive properties. Apart from that, it is also -6- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 admitted by plaintiff himself that suit schedule item Nos.2 to 4 properties were purchased by father of the 1st defendant and they are his self acquired properties and on the death of Laxmanrao Hubballi, the same have been succeeded by the 1st defendant under section 8 of the Hindu Succession Act. As such, these Item Nos.2 to 4 of suit schedule properties are also absolute properties of the 1st defendant and during his lifetime, the plaintiff has no right over these properties.
11. The learned counsel relied upon the following decisions :
i. Uttam Vs. Saubhag Singh and others1 ii. Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others2 iii. Sunil Kumar and another Vs. Ram Parkash and others3
12. Perused the ratio laid down by the Hon'ble Apex Court in the cases of Uttam's, the Commissioner of Wealth Tax and in the case of Sunil Kumar stated supra, 1 (2016) 4 SCC 68 2 (1986) 3 SCC 597 3 (1988) 2 SCC 77 -7- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 there is no dispute with regard to principle enumerated in those decisions.
13. The learned counsel contended that the coparceners are not entitled to seek permanent injunction restraining the Kartha from any such alienation.
14. Admittedly, sons and father are the coparceners having right in the suit properties. Normally, no injunction against the Karta of the joint Hindu family can be granted restraining him from alienating the coparcenery property. It is a trite law that in a partition suit, plaintiff may seek temporary injunction to save the property from alienation.
15. In view of the facts, circumstances and the contentions raised by both the parties, it is just and necessary to analyze Order XXXIX Rules 1 & 2 of CPC.
16. Cases in which temporary injunction may be granted. Where in any Suit it is proved by affidavit or otherwise.
(a) that any property in dispute in a suit is in danger of being wasted, damaged or -8- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,
17. From the perusal of proposition, it appears that, the Court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
18. Grant of interim injunction during the pendency of legal proceeding is a matter resting with the exercise of discretion of the Court. The decision, whether or not to grant interim injunction, has to be taken, at a time when the -9- NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interim injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of interim injunction is to protect plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need for the defendant to be protected against injury resulting from preventing his exercising legal right for which he could not adequately be compensated. The Court must weigh the need of interim injunction and determine where balance of convenience lies in order to protect defendant while granting an interim injunction in his favour. The Court can require and call upon the plaintiff to furnish an undertaking so that the defendant can adequately
- 10 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 be compensated, if the uncertainty were resolved in his favour, at the trial.
19. Jurisdiction of the Court to interfere with an order of interim or temporary injunction is purely equitable and, therefore, the Court on being approached will, apart from other consideration, also look at the conduct of the party invoking the jurisdiction of the Court. The Court may refuse to interfere unless his conduct was free from blemish. Since the relief is wholly equitable in nature the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for brining out the state of things complained of and further that he was not unfair or inequitable in his dealing with the party against whom he was seeking relief. The conduct of the plaintiff must be fair and honest. These considerations will arise not only in respect of person who seeks an order of injunction but also the defendant who approaches the Court for vacating the ad-interim or temporary injunction order already granted in the pending proceedings.
- 11 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023
20. The grant of temporary injunction primarily depends on the existence of prima facie case in determining such question.
21. The object of interim injunction is to keep things in status-quo, so that if at the hearing, when the plaintiff obtained judgment in his favour, the defendant will in the meanwhile have to be prevented from dealing with the property in such way as to make that judgment ineffectual. An order of temporary injunction maintaining the status-quo may properly issue whenever the question of law or fact, to be ultimately determined in a suit, is grave and different and the injury likely to be caused to the party moving for injunction will be imminent, and certain; and great hardship will be caused if relief is denied. The party seeking the aid of the Court must satisfy that there is a serious question to be tried. At the hearing he should satisfy that he is entitled to relief sought for by him or that he has a prima facie case to go to the trial; that the Court's interference is necessary to protect him from that species of injury which the Court calls irreparable 'before his legal rights is established at the trial
- 12 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 and that of comparative mischief or the inconvenience which is likely to arise from withholding the injunction will be greater than that of which is likely to arise from granting it.
22. The relief of grant of interim injunction is both temporary and discretionary. In cases of interim injunction, in aid of the rights of the parties seeking it, the Court will first consider whether the applicant has established the prima facie case, the expression prima facie in this context being understood in the sense that it is not frivolous or vexatious, but involves a serious matter to be investigated, the rules guiding that administration of this form of discretionary relief admit of being formulated in the following three sequential proportions. (1) Discover whether the plaintiff's case is frivolous or vexatious (2) If it is not, decide in whose favour the balance of convenience lies, and (3) if the balance, of convenience is fairly even, then it would be proper to take into account, in tipping the balance the relevant strength of each party's case, as revealed by the affidavit evidence adduced on the hearing of the application. While considering the question as to the balance of
- 13 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 convenience between the parties and the imminent and uncompensatable disadvantage or some irreversible determent that may result to the applicant by denial of the reliefs. It is not necessary for the Court to find a case for the applicants which would entitle them to relief at all events. But it is quite sufficient if the Court finds that the case shows that there are substantial questions to be investigated and the matter has to be preserved in status quo until the question could be finally disposed of.
23. Perused the material available on record, the contention raised by the plaintiff and defendants, more particularly quantum of share and the rights of the plaintiffs over the suit schedule properties. The plaintiff has specifically pleaded that defendant No.1 is his father, defendant Nos.2 & 3 are his brothers and the suit schedule properties are joint family ancestral properties of plaintiff and defendants. Defendant No.1 being the father of plaintiff allotted share in favour of brothers' of plaintiff, but he did not allot any share in favour of the plaintiff. Hence, no share has been allotted to plaintiff in the suit schedule property. As
- 14 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 defendant No.1 has specifically pleaded that the suit schedule property bearing Sy.No.150/1 is his self acquired property. Hence, the burden cast on defendant No.1 to prove whether, Item No.1 property is his self acquired property or joint family property of defendant No.1 defendant No.2 and 3 and plaintiff. It requires a full fledge trial. At this juncture, only prima facie case has to be seen. Hence, if defendant No.1 allowed to alienate Item No.1 of suit schedule-A property, more hardship and injustice would be caused to the plaintiff than defendant No.1. Balance of convenience also tilts in his favour than defendant No.1. If temporary injunction is not granted restraining defendant No.1 from alienating suit Item No1 of schedule-A property, more hardship would be caused to the plaintiff than defendant No.1. If defendant No.1 is allowed to alienate schedule property then, it will lead to multiplicity of proceedings, if the plaintiff is succeeds in the suit. Hence, there is no merit in the contention of appellant-defendant No.1.
24. The ratio laid down in the decision cited supra and the principles enumerated in those decisions are not
- 15 -
NC: 2024:KHC-D:9013 MFA No. 104478 of 2023 disputed. But, those decisions are not aptly applicable to the case on hand, since defendant No.1 has to prove his contention and it requires full fledged trial.
25. Accordingly, the appeal is dismissed In view of the disposal of the appeal, pending applications, if any, stand disposed off.
Sd/-
JUDGE EM/ct-an List No.: 1 Sl No.: 73