Karnataka High Court
S Shilpa vs Sri S Muralikrishna on 16 December, 2021
Bench: K.S.Mudagal
M.F.A.NO.4412/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
M.F.A. NO.4412/2021(CPC)
BETWEEN:
S SHILPA
W/O SRI HARISH KUMAR
D/O LATE R SHIVASHANKAR
AGE ABOUT 35 YEARS
RESIDING AT NO.403, 17TH CROSS
B.E.M.L. LAYOUT
BASAVESHWARANAGAR
BENGALURU-560 079
... APPELLANT
(BY SRI. D.L. JAGADEESH, SENIOR ADVOCATE FOR
SRI. RAHAMATHULLA KOTHWAL, ADVOCATE)
AND:
1 . SRI S MURALIKRISHNA
S/O LATE R SHIVASHNAKAR
AGED ABOUT 36 YEARS
RESIDING AT NO.403,17TH CROSS
B.E.M.L. LAYOUT, BASAVESHWARANAGAR
BENGALURU-560 079
2 . SMT LAKSHMI
W/O LATE R SHIVASHANKAR
AGE ABOUT 35 YEARS
RESIDING AT B.E.M.L. LAYOUT
BASAVESHWARANAGAR
BENGALURU-560 079
3 . SMT R MONICA
D/O M P RAMESH AND
LATE SMT NANDAKUMARI
M.F.A.NO.4412/2021
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W/O M YESHWANTH
AGE ABOUT 24 YEARS
RESIDING AT NO.29
SREE ARCADE APARTMENTS
2ND PHASE, 12TH MAIN, RAJAJINAGAR
BENGALURU-560 010
... RESPONDENTS
(BY SRI. Y.R. SADASIVA REDDY SENIOR, ADVOCATE
FOR SRI. J.M. RAJANNA SETTY, ADVOCATE FOR C/R1,
SRI. J.R. MOHAN, ADVOCATE FOR R2,
SRI. K.VARAPRASAD, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT.05.08.2020 PASSED ON IA NO.16 IN
O.S.NO.5335/2014 ON THE FILE OF THE XII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, (CCH-27), BENGALURU,
DISMISSING IA NO.16 FILED U/O.39 RULES 1 AND 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by rejection of her application for grant of
Temporary Injunction, Defendant No.2 in OS
No.5335/2014 on the file of XII-Additional City Civil and
Sessions Judge, Bengaluru (CCH-27), has preferred the
above appeal.
2. Respondent No.2 is the plaintiff, respondent
No.1 is defendant No.1, appellant is defendant No.2,
respondent No.3 is defendant No.3 in OS No.5335/2014,
before the trial Court.
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3. Plaintiff is the 2nd wife of R.Shivashankar.
Defendant Nos.1 and 2 are the son and daughter of said
Shivashankar through his first wife. Defendant No.3 is
Ramaiah's daughter's daughter. Shivashankar died on
14.01.2013. Plaintiff filed OS No.5335/2014 initially
against the defendant Nos.1 and 2 for partition and
separate possession of her share in the property of
Shivashankar. Later defendant No.3 was impleaded in the
said suit.
4. Initially, only the 1st defendant appeared in
the case and Defendant No.2 was placed ex-parte. Later
she filed an application on 19.08.2019 to set-aside the ex-
parte order passed against her. On 29.02.2020 that
application came to be allowed. On 14.01.2015, defendant
No.1 filed written statement. In the year 2017 he filed
amendment application to amend the pleadings.
Amendment application came to be allowed in 2020.
5. The plaintiff filed IA No.5 before the trial Court
seeking Temporary Injunction against the 1st defendant
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from interfering with her joint possession and enjoyment
of the suit schedule properties. That application came to
be allowed on 16.03.2015.
6. Pending the aforesaid proceedings, defendant
No.2 filed OS No.5737/2019 before the XXXI Additional
City Civil Court, Bengaluru (C.C.H-14) against the present
plaintiff and defendant No.1 for partition and separate
possession of her share in the suit schedule properties and
to restrain them from alienating the suit schedule
properties. In that suit, the Court had granted an ex-parte
temporary injunction directing the parties to maintain
Status-Quo. However that order was not extended later.
7. Challenging the order of temporary injunction
granted in O.S.No.5335/2014, defendant No.1 preferred
MFA No.2313/2015 before this Court. This Court by order
dated 04.11.2016 disposed of that appeal directing the
trial Court to dispose of the suit within 12 months from the
date of order and directing the parties to maintain status-
quo.
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8. Such being the case, defendant No.2 filed IA
No.16 in OS No.5335/2014 seeking temporary injunction
to restrain the plaintiff and defendant No.1 from alienating
the suit schedule properties. The plaintiff and defendant
No.1 contested the said application.
9. The trial Court on hearing the parties, by the
impugned order rejected the application on the ground
that Defendant No.2 has neither filed any Counter-claim
nor paid court fee on the written statement, therefore, she
cannot maintain such application. The other ground for
rejection is that, since she has already filed OS
No.5737/2019, she shall work-out her remedy for such
injunction in the said suit.
10. Pending O.S.No.5335/2014, some alienations
were effected. Therefore, Defendant No.2 has filed OS
Nos.4460/2020 and 4462/2020 against Defendant No.1
and the purchasers seeking declaration that the said sales
are null and void and not binding on her. She has also
filed OS No.26510/2019 against the tenants and the 1st
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defendant regarding one of the present suit schedule
properties for ejectment.
11. Deceased Shivashankar's sisters have filed OS
No.7256/2016 against Defendant Nos. 1 & 2 claiming that,
the properties were the ancestral properties of Ramaiah,
the father of Shivashakar, therefore on death of Ramaiah,
they are also entitled for those properties. It is submitted
that, now the said case is consolidated with OS
No.5335/2014. Above facts show that though the
relationship between the parties is admitted, they are
fighting bitterly and entrapped in the web of multiple
litigations.
12. Learned counsel appearing for the parties on
both side concede that all the above suits can be
transferred to one Court and the matters can be referred
to mediation, to make an attempt to resolve the disputes
between the parties amicably.
13. So far as the legality of the impugned order,
it is a settled position of law that in the suit for
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partition all the parties are in the array of plaintiffs. The
application was for injunction against alienation of the
properties, which falls under Order 39 Rule 1(a) of CPC.
The said provision provides for filing such application by
either of the parties i.e., the plaintiff or defendant.
Therefore, the reasoning of the trial Court that, Defendant
No.2 is barred from filing such application without paying
Court Fee on written statement or counter claim is wholly
unsustainable.
14. So far as the direction to work-out remedy of
Defendant No.2 in OS No.5737/2019, O.S.No.5335/2014
was an earlier suit. By the time, IA No.16 came up for
hearing, the injunction order granted in OS No.5737/2019
was not in operation. Therefore, there was no impediment
for the trial Court to consider IA No.16, instead of driving
Defendant No.2 to another suit. Therefore, the rejection
of the application on that count is also unsustainable.
15. Admittedly, this Court in MFA No.2313/2015
(CPC) as long back as on 04.11.2016, has passed an order
directing the parties to maintain status-quo. It was
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contended, that order applies only with regard to
interfering with the possession of the plaintiff and not with
regard to alienation. The status-quo means, 'the condition
as is - where is'. So, it cannot be said that it would apply
only with regard to the possession of the properties. In
the light of the said order, in the considered opinion of this
Court, there was no need for Defendant No.2 to file
another application.
16. In view of the observations made above, this
appeal is disposed of. The impugned order is set aside.
Both the parties are directed to maintain status-quo even
with regard to alienation of the suit schedule properties,
till the disposal of the suit.
O.S.No.5737/2019, O.S.No.4460/2020,
O.S.No.4462/2020 and O.S.No.26510/2019 shall be
transferred to the Court of XII Additional City Civil and
Sessions Judge (CCH-27), Bengaluru, for disposal along
with OS No.5335/2014 and OS No.7256/2016.
17. On transfer of the cases, the matter shall be
referred to Bengaluru Mediation Center for exploring
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the possibility of settlement. Twelve Months' time
granted by this Court in MFA No.2313/2015, for disposal
of O.S.No.5335/2014 is already elapsed. Under such
circumstances, this Court hopes that the matter will be
settled amicably.
If at all the medication fails, the trial Court shall
dispose of the suits as expeditiously as possible, at any
rate, within one year from the date of receipt of the
mediation report.
All the pending Interlocutory Applications stood
disposed of.
Sd/-
JUDGE
KGR*
