Karnataka High Court
Smt K N Kamala vs Sri Manoj Kumar B on 15 December, 2021
Bench: K.S.Mudagal
M.F.A.No.6581/2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.6581/2019 (CPC)
BETWEEN:
1. SMT.K.N.KAMALA
D/O LATE NANJUNDA SHASTREE
AGED ABOUT 74 YEARS
2. SRI.K.N.SHANKAR
S/O LATE NANJUNDA SHASTREE K
AGED ABOUT 70 YEARS
3. SMT.T.V.CHITKALA
W/O K.N.SHANKAR
AGED ABOUT 65 YEARS
4. MR.L.SUNIL
W/O K.N.KAMALA
AGED ABOUT 49 YEARS
5. SMT.L.SAVITHA
W/O MANJUESH
AGED ABOUT 54 YEARS
P1 TO P5 ARE R/AT
NO.41/18, 5TH MAIN ROAD
TATA SILK FARM
TYAGARAJA NAGAR
BANGALORE - 560 028 ...APPELLANTS
(BY SRI D.R.SUNDARESHA, ADVOCATE)
AND:
1. SRI MANOJ KUMAR B
S/O SRI BABULAL
M.F.A.No.6581/2019
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AGED ABOUT 33 YEARS
R/AT NO.100/4, 2ND FLOOR
BULL TEMPLE ROAD
BANGALORE - 560 019
2. SMT.PINKY JAIN
W/O NARESH KUMAR JAIN
AGED BOUT 38 YEARS
R/AT NO.348, AVENUE ROAD
BANGALORE - 560 002 ...RESPONDENTS
(BY SRI SANJAY H SETHIYA, ADVOCATE)
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) AND
SECTION 151 OF CPC PRAYING TO SET ASIDE THE ORDER
DATED 31.10.2018 PASSED BY THE XVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-16) IN
O.S.NO.8712/2007 ON IA NO.11.
THIS MFA COMING ON FOR ARGUMENTS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
ORDER ON I.A.NO.2/2019/JUDGMENT
Heard.
2. The defendants in O.S.No.8712/2007 have
preferred the above appeal challenging the order on
I.A.No.11 dated 31.10.2018 passed against them.
3. By the impugned order, the trial Court has
granted injunction restraining the appellants or anybody
claiming through them from alienating the suit Schedule
M.F.A.No.6581/2019
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property or creating any third party interest over the suit
schedule property.
4. There is delay of 179 days in filing the appeal.
Therefore the appellants have filed I.A.No.2/2019 for
condonation of delay. Learned Counsel for the
respondents seriously opposes the application.
5. Appellant No.1 has filed her affidavit to
explain the delay. In the affidavit, she has stated that
they are aged persons suffering due to old age related
ailments. She has also stated that they have no legal
knowledge and later they came to know about the legal
proceedings and obtained the certified copies. Therefore
the delay has caused.
6. The respondents in the statement of
objections denied the above grounds. They claim that
appellant Nos.4 and 5 are not aged persons. They also
contended that after passing of the impugned order,
appellant No.2 has appeared before the trial Court on
several hearing dates and sought adjournments.
Therefore the contentions that they were not aware of the
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legal proceedings cannot be accepted. It is further
contended that despite there being an interim injunction
order against alienation, the appellants have entered into
registered joint development agreement with one
M/s.Sree Vidhathri Developers on 31.10.2019 and having
regard to such conduct of the appellants, they are not
entitled for condonation of delay.
7. Learned Counsel for the appellants submits
that the appellants have meritorious case and the trial
Court has granted injunction relying on inadmissible
agreement of sale, therefore the appellants shall not be
thrown out of the Court on the ground of delay. In
support of his contentions, he relies upon the judgment of
this Court in K.B.Jayaram and Another vs
Navineethamma1. He also submits that explanation for
condonation of delay shall be liberally construed.
8. It is no doubt true that the word 'sufficient
cause' found in Section 5 of the Limitation Act, 1963 have
to be liberally construed. The conduct of the parties
ILR 2003 KAR 879
M.F.A.No.6581/2019
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seeking such equitable relief also matters. So far as the
contention that the injunction cannot be based on
inadmissible document, the appellants' Counsel himself
submits that the said document was admitted in evidence
noting the objections. The appellants have not challenged
that order so far.
9. Learned Counsel for the respondents submits
that the stamp duty was paid on the document as per the
prevailing prescribed rate. Anyway the fact remains that
the order of marking the documents is subject to the
objections which has not been challenged.
10. So far as inability of the appellants to attend
the Court due to aged related ailments, of course,
appellant Nos.1 to 3 are the Senior Citizens. But except
the statement that they have age related ailments which
is disputed by other side, no material is produced to
substantiate the same. The certified copy of the order
sheet in the proceedings before the trial Court submitted
by learned Counsel for the respondents shows that
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defendant No.3 personally appeared before the trial Court
after the impugned order was passed.
11. Further the encumbrance certificate produced
by the respondents shows that despite the impugned
injunction order, the appellants have entered into
registered agreement with some third party. It is not their
case that they entered into such agreement with leave of
the Court. That goes to show that the appellants have no
regards for the Court order.
12. Having regard to such conduct of the
appellants and aforesaid facts and circumstances it is not
a fit case to condone the delay or to show indulgence or
liberal approach. The interim order is only against
alienation of the property. The suit is of the year 2007. It
is open to the appellants to expedite the matter before
the trial Court and get it disposed of. Therefore,
I.A.No.2/2019 and consequently the appeal are
dismissed.
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The trial Court is requested to dispose of the suit as
expeditiously as possible. In view of dismissal of the
appeal, other pending IAs stood disposed of.
Sd/-
JUDGE
KSR
