Karnataka High Court
Smt. Hamsavalli G vs Smt. Neelavati on 19 January, 2021
Author: S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO.3291 OF 2020(CPC)
BETWEEN
SMT. HAMSAVALLI G
W/O LATE GANESHAN
SINCE DEAD REPRESENTED BY HER LRS DIED: 22.08.2019
1. SRI UHIRAPATHI G
S/O LATE GANESHAN
AGED ABOUT 54 YEARS,
2. SRI NATARAJAN G
S/O LATE GANESHAN
AGED ABOUT 48 YEARS,
ALL ARE R/AT NO.36-A, T BLOCK,
MARAPPA GARDEN, BENSON TOWN POST
BENGALURU-560 046.
...APPELLANTS
(BY SRI. B. ROOPESHA, ADVOCATE)
AND
1. SMT. NEELAVATI
W/O LATE RADHAKRISHNAN
AGED ABOUT 54 YEARS
2. REVATHI
D/O LATE RADHAKRISHNAN
AGED ABOUT 31 YEARS
R-1 & R-2 ARE R/AT NO.36-A,T BLOCK,
MARAPPA GARDEN, BENSON TOWN POST,
BENGALURU-560 046.
2
3. SRI CHELLAMMAL
D/O LATE GANESHAN
AGED ABOUT 67 YEARS,
R/AT NO.223,4TH B CROSS
3RD BLOCK,HRBR LAYOUT
KALYAN NAGAR,BENGALURU-560 043.
4. SMT G MANGALAM BAL
D/O LATE GANESHAN
AGED ABOUT 65Y EARS,
R/AT 4/1, KODANDARAMA STREET
BANASWADI MAIN ROAD
BENGALURU-560 033.
5. SRI G RAJENDRAN
S/O LATE GANESHAN
AGED ABOUT60 YEARS,
R/AT NO.8, 2ND B CROSS
BHUVANAGIRI STREET
OMBR LAYOUT,BANASWADI
BENGALURU-560043
6. SRI G GUBENDRAN
S/O LATE GANESHAN
AGED ABOUT 58 YEARS,
R/AT NO.88, SESHADARI
1ST MAIN ROAD,CHINNAPPA GARDEN
BENSON TOWN POST, BENGALURU-560 046.
7. SRI G RAVICHANDRAN
S/O ALTE GANESHAN
AGED ABOUT 567 YEARS
R/AT NO.47/5, M M ROAD
NANDHI DURGA ROAD CROSS
OPP TO GANESHA TEMPLE BENSON TOWN POST
BENGALURU-560046
8. SMT G RAJALAKSHMI
D/O LATE GANESHAN
AGED ABOUT 54 YEARS
R/AT BS.5 SVS WIND GATES
13TH CROSS, PRAKRUTHI TOWNSHIP
HORMAVU AGARA, BABUSAPALYA
BENGALURU-560 043.
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9. SRI G VASUKI
D/O LATE GANESHAN
AGED ABOUT 51 YEARS,
R/ATN O.14/252, 6/6
SRI CULTURAL ROAD
KUPPAM CHITTOOR DISTRICT
ANDHARA PRADESH-517 425.
10 . M/S NAVYA BUILDERS AND DEVELOPERS
HAVING THEIR REGISTERED OFFICE AT
NO.316, 5TH FLOOR,
THE MAY FAIR, 100 FEET ROAD,
1ST STAGE INDIRANAGAR
BINNAMANANGALA
BENGALURU9-560038
REPRESENTED BY ITS PARTNERS
A) SRI D KRISHNA REDDY
B) SRI G OBULLA REDDY
C) SRI D PRABHAKARA REDDY
D) SMT DIVYA KOTA
...RESPONDENTS
(BY SRI. V.B. SHIVA KUMAR, ADVOCATE FOR C/R-1 AND R-2
SRI. C. AMRUTESH, ADVOCATE FOR R-3 TO R-9
SRI.P.N. NANJAREDDY, ADVOCATE FOR C/R-10)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF CPC,
AGAINST THE ORDER DATED : 13.03.2020 PASSED ON I.A.NO. 1 IN
O.S.NO. 8606/2018 ON THE FILE OF THE XXXV ADDITIONAL CC AND
SESSIONS JUDGE, BENGALURU CCH-36, REJECTING THE I.A.NO. 1
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the plaintiff in O.S.No.8606/2018 is
directed against the impugned order dated 13.03.2020 passed
on I.A.No.1 by the XXV Additional City Civil and Sessions
Judge, Bengaluru (for short "trial Court"), whereby the trial
Court dismissed the application, I.A.No.1 filed by the appellant
under Order 39 Rules 1 and 2 CPC for temporary injunction
against the respondent Nos.1, 2 and 10.
2. Heard learned counsel for the appellants and
learned counsel for respondents.
3. After arguing the matter for some time, learned
counsel for respondent Nos.1 and 2 has filed a memo duly
signed by respondent Nos.1 and 2. The said memo reads as
under:
"The Appellants have filed O.S.No.8606/18 for
Partition and have included self acquired self earned
properties of Radhakrishna. The 10th Respondent is a
Builder/Developer by name Navya Builders and
Developers, as owners share we have received 37
Apartments, out of 37 Apartments Flat No.412 and 416
have been sold. Flat No.412 is sold to T. Raja and Flat
No.416 is sold to Srijith and Shobha. Without prejudice
to the rights in terms of the Written Statement filed
Respondents No.1 and 2 mention that in the event
Appellant/Plaintiffs complete the entire Trial within a
period of 3 months. The alienations of remaining
apartments will be halted. The finality of Judgment and
Decree in O.S.No.8606/2018 the Respondents No.1
and 2 may be permitted to proceed to alienate the
Apartments which have fallen to these respondents."
4. The material on record indicates that pursuant to the
registered Joint Development Agreement dated 04.09.2014,
entered into between respondent Nos.1, 2 and 10, the plaint
schedule 'A' property has been developed and residential
apartments have been constructed on the said property. It is
the specific contention of respondent Nos.1 and 2 that under
the said Joint Development Agreement and other agreements
entered into between respondent Nos.1, 2 and 10, a total
number of 37 apartments have been allotted to respondent
Nos.1 and 2 towards owners-constructed area. It is also
contended by respondent Nos.1 and 2 that from out of said 37
apartments, apartment Nos.412 and 416 have already been
sold in favour of T. Raja, Srijith and Shobha, respectively. In
the aforesaid memo dated 19.07.2021, respondent Nos.1 and
2 have specifically undertaken not to alienate any other
apartments that were allotted to respondent Nos.1 and 2 in the
owners-constructed area in the apartment complex situated on
the plaint 'A' schedule property.
5. The aforesaid memo and submission made by
learned counsel for respondent Nos.1 and 2 are placed on
record.
6. In the result, I pass the following:
ORDER
i. The appeal is disposed off.
ii. The impugned order dated 13.03.2020 passed on
I.A.No.1 in O.S.No.8606/2018 by the XXXV Additional
City Civil and Sessions Judge, Bengaluru (CCH-36) is
hereby modified.
iii. Respondent Nos.1 and 2 are directed not to alienate,
encumber or create third party rights over the
apartments that have been allotted to the share of
respondent Nos.1 and 2 as owners-constructed area in
the Agreement(s) entered into between respondent
Nos.1 and 2 and respondent No.10 in respect of plaint
'A' schedule property.
iv. It is made clear that this interim order shall not be
applicable to apartment Nos.412 and 416 that have
already been sold in favour of the persons referred to
supra.
v. All parties undertake to appear before the trial Court on
01.02.2021 by getting the matter preponed/advanced
before the trial Court.
vi. Since the pleadings of the parties said to have been
completed, the trial Court is directed to dispose of the
suit on or before 01.07.2021.
vii. The trial Court is directed to dispose of the suit on
merits after giving opportunity to all the parties and
without being influenced by the observations and
findings recorded by the trial Court in the impugned
order.
Sd/-
JUDGE
Bmc
