Karnataka High Court
Mrs. L Santhoshi vs Smt. Saramma on 9 December, 2021
Bench: K.S.Mudagal
M.F.A.NO.6167/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.6167/2021(CPC)
BETWEEN:
MRS.L.SANTHOSHI
W/O BALRAJ
AGED 46 YEARS
R/AT NO.26, 2ND FLOOR, 1ST CROSS
CRISTIAN COLONY, SRIRAMPURAM
BENGALURU - 560 021 ... APPELLANT
(BY SRI SANTOSH RAJ URS, ADVOCATE)
AND:
SMT.SARAMMA
W/O SHANKARAYYA
AGED 50 YEARS
R/AT NO.26, GROUND FLOOR
BABU BHASKAR HOUSE, 1ST CROSS
CRISTIAN COLONY, SRIRAMPURAM
BENGALURU - 560 021 ... RESPONDENT
(BY SMT.SUMATHI S, ADVOCATE FOR C/R)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF
CPC, PRAYING TO SET ASIDE THE ORDER DATED 22.10.2021
PASSED ON I.A.NO.4 IN O.S.NO.4427/2018 ON THE FILE OF
THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, ALLOWING THE I.A.NO.4 FILED UNDER ORDER
39 RULE 4 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:
M.F.A.NO.6167/2021
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JUDGMENT
With the consent of both side, the matter is taken
up for final disposal.
2. The appellant filed O.S.No.4427/2018
before the LXVIII Addl. City Civil and Sessions Judge,
Bengaluru seeking decree of permanent injunction
against the respondent from alienating the suit schedule
property and creating any third party interest by sale,
mortgage, gift etc.
3. The subject matter of the suit is the
property bearing No.16/1 measuring 19ft X 10ft
situated at Christian Colony, Srirampura, Bengaluru.
The appellant and respondent are full sisters.
Admittedly, the suit property belonged to their maternal
uncle J.Samson. He died on 09.07.1991 leaving behind
him his wife Jeevamma as the only surviving heir. She
also died on 06.03.2013.
4. The appellant claims that Jeevamma
executed WILL dated 24.03.2011 bequeathing the suit
Schedule Property in her favour. The respondent
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claims that Jeevamma has gifted the property to her by
executing a document dated 31.08.2009.
5. The appellant filed O.S.No.4427/2018
against the respondent for permanent injunction
claiming that by virtue of the WILL she is in possession
of the property. She further claims that the respondent
on the basis of some forged documents is attempting to
alienate the suit property. Along with the plaint, she
filed IA No.1 seeking temporary injunction restraining
the respondent from putting up construction on the suit
schedule property.
6. The trial Court on 25.06.2018 granted ex-
parte temporary injunction restraining the respondent
from putting up construction on the suit schedule
property till the next hearing date. The said injunction
was being extended from time to time.
7. The respondent appeared and filed her
written statement and objections to IA No.1. The trial
Court framed the issues and posted the matter for the
evidence of the plaintiff. On 24.02.2021 when the
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matter was listed for evidence of PW.1, respondent filed
IA No.4 under Order 39 Rules 4 CPC for vacating the ex-
parte interim injunction. Thereafter plaintiff and her
counsel failed to appear before the trial Court for some
hearing dates.
8. Ultimately on 22.10.2021 again plaintiff and
her counsel did not appear. The trial Court heard the
respondent's counsel and by the impugned order
vacated the interim injunction granted. The aforesaid
impugned order reads as follows:
"Plaintiff absent.
No representation by the plaintiff side.
Counsel for Defendant present.
Heard arguments of Defendant side on IA No.4.
Plaintiff has not filed objections to IA.No.4 (U/o 39 Rule
4 of CPC). Hence, injunction granted by this court in
favour of the plaintiff is hereby vacated. Accordingly, IA
No.4 is allowed.
For cross examination of PW1 by 03.12.2021."
9. The above said order shows that it was
passed pending IA No.1. No orders were passed on IA
No.1. The interim injunction order operated for about
more than 2½ years. Except the failure of the appellant
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no other reason was assigned to vacate the interim
order which was in operation for 2 ½ years. On that
count itself, the order is liable to be set aside.
The appeal is allowed.
The impugned order dated 22.10.2021 passed by
the trial Court is hereby set aside. The matter is
remitted back to the trial Court. The parties shall
appear before the trial Court on 15.12.2021 and get the
matter pre-poned.
The trial Court shall give opportunity of hearing to
both side and pass orders on IA Nos.1 and 4 in
accordance with law within 30 days from the date of
receipt of copy of the order.
Till then, the respondent shall maintain status quo
of the property.
Registry shall communicate the operative portion
of the order to the trial Court.
Sd/-
JUDGE
akc
