Rathna Nagaraj vs Sri D Ramesh
2021 Latest Caselaw 3440 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF OCTOBER 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

         WRIT PETITION NO. 17942/2021 (GM-CPC)

BETWEEN :

RATHNA NAGARAJ
AGED 70 YEARS
W/O SRI M S NAGARAJA RAO
R/AT 927, 22ND MAIN,
J P NAGAR, II PHASE,
BENGALURU - 560 078.
                                 ... PETITIONER
(BY SRI. SHIVAPRASAD SHANTANAGOUDAR., ADVOCATE)

AND :

1.      SRI D. RAMESH
        AGED 57 YEARS,
        R/AT NO.11/12
        5TH MAIN, 5TH BLOCK,
        JAYANAGAR
        BENGALURU - 11.

2.      SRI B R SRINIVAS
        AGED 37 YEARS
        S/O B V RAVIKUMAR
        R/AT NO. 25/42
        3RD FLOOR, 7TH CROSS,
        3RD MAIN, RAMAKRISHNA NAGAR
        J P NAGAR POST
        BENGALURU - 560 078.
                          2



3.   SRI RAJU N
     AGED 36 YEARS,
     S/O SRI NINGAPPA
     R/AT 16/1
     KAVIKESHAVA RAJA ROAD
     ESHANYAMUKHI TEMPLE ROAD
     PIPELINE SRINAGARA
     BENGALURU - 560 019.

4.   DISTRICT REGISTRAR
     BASAVANAGUDI
     BENGALURU - 560 078.

5.   SUB REGISTRAR
     BASAVANGUDI (BANASHANKARI)
     BENGALURU - 560 078.

6.   DEPUTY COMMISSIONER OF POLICE
     BANGALORE SOUTH
     BENGALURU - 560 001.

7.   INSPECTOR
     PUTTANAHALLI POLICE STATION
     BENGALURU - 560 001.
                               ... RESPONDENTS

(BY SRI. H.C SHIVARAMU., ADVOCATE FOR R1;
    SRI. SUNIL S. RAO., ADVOCATE FOR R3 A/W
     SRI. AKASH V.T., ADVOCATE FOR C/R3;
     NOTICE TO R2 IS WAIVED;
     NOTICE TO R4 TO R7 ARE DISPENSED WITH )


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT R-5 AND 6 TO REGISTER FIR AGAINST THE R-1 TO
3 BASED ON THE COMPLAINT FILED BY THE PETITIONER
ON 20.9.2021 AT ANNEXURE-W; QUASH THE IMPUGNED
JUDGEMENT AND DECREE PASSED BY THE XXXIV
ADDITIONAL CITY CIVIL JUDGE BENGALURU IN
                                         3



O.S.NO.7163/2019 DTD.03.01.2020 AT ANNEXURE-T3 AND
T4.


     THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:

                                  ORDER

The petitioner, who asserts ownership of a residential

apartment which is described in the petition, has

sought for relief/s which reads as under:

a) To issue a writ in the nature of mandamus or any other writ, order or direction directing respondent Nos.5 and 6 to register FIR against the Respondent Nos.1 to 3 based on the complaint filed by the petitioner on 20.09.2021 at Annexure- W.

b) To issue writ in the nature of certiorari to quash the

(i) Impugned Judgement and Decree passed by the Hon'ble XXXIV Additional city Civil Judge, Bengaluru in O.S. No. 7163/2019 dated 03.01.2020 at Annexure-T3 and T4.

(ii] Impugned order dated 15.09.2021 on application under order XXI Rule 35 r/w Section 151 of IPC in EX. No. 1229/2020 passed by XXXIV Additional City Civil and Sessions Judge, Bengaluru at Annexure-V2.

c) To set aside the registered court sale deed registered before Sub Registrar Chamarajpet at Annexure V1 dated 06.09.2021.

d) Issue a Writ in the nature of Mandamus or any other writ, order or direction, directing the respondents to hand over possession of the schedule property to the petitioner;

e) To impose exemplary costs on the Respondents for defrauding the Petitioner as well as the Trial Court.

2. Sri Shivaprasad Shantanagoudar, learned

counsel for the petitioner, Sri H.C.Shivaramu, learned

counsel for the first respondent and Sri Sunil T Rao,

learned counsel for the third respondent are heard for

final disposal of the petition. The notice of the petition

to the second respondent is waived because it is

undisputed that though this respondent has joined the

third respondent in filing the suit in O.S.No.7163/2019,

in the subsequent execution proceedings, because of the

inter se agreement with the third respondent, the sale

deed for the subject property [a residential apartment

bearing No.S183, 18th floor, South Block of Maya

Indraprastha] is executed in favour of the third

respondent and the third respondent has also taken

possession of the apartment. It emerges from these

submissions that the second respondent cannot have

any subsisting interest in the subject property.

3. There are allegations and counter allegations

of fraud and reference to prior proceedings between the

parties. The petitioner asserts that with the execution

of the sale deed dated 19.9.2009 for the subject

property in favour of the petitioner, there could not have

been subsequent transfers. The subsequent transfers

commencing with the agreement of sale dated 29.5.2019

[later initiation of a suit for specific performance,

conclusion of a compromise decree and initiation of

execution proceedings] concluding with the sale deed

dated 6.9.2021 through the process of the Court in

favour of the third respondent and the subsequent

delivery of possession in the execution proceedings, is

an egregious fraud. Per contra, the first and the third

respondents submit that the very sale deed dated

19.9.2009 in favour of the petitioner is a fraudulent

document and this sale deed would not bind these

respondents. These respondents also place on record

reference to different proceedings.

4. The question that will have to be considered

by this Court in the writ petition is: whether this Court

in the facts and circumstances of the case must

intervene and grant any relief that is sought for or that

the parties must be asked to work out their remedy in a

properly instituted civil suit, and the arrangement that

will have to prevail if this Court is of the opinion that

the parties must work out their remedies in a properly

instituted suit.

5. It is indeed trite that the fraud vitiates every

act, but for this Court to intervene under Article 227 of

the Constitution of India with a judgment in a suit and

the subsequent proceedings, especially when the

petitioner is not a party to these proceedings, the fraud

alleged must be so obviously beyond dispute that it

should not require a detailed enquiry on facts. In the

present case, this Court, on hearing the parties and the

rival submissions that they would assert, can only opine

that a detailed enquiry in to the different facts is

required in a properly instituted civil suit and the

parties must work out their remedy in such suit.

6. This takes this Court to the next question

viz., whether the third respondent, in the light of the

serious allegations, must retain the use and enjoyment

of the subject property [a residential apartment] when it

is undisputed that the possession is recovered within

the last thirty days pursuant to a compromise decree in

a suit for specific performance which is challenged on

the ground of fraud.

7. In response to this Court's query, Sri T.Sunil

Rao, learned counsel for the third respondent, submits

on instructions from the third respondent, who is

present before this Court, that the third respondent

would not alienate the subject property or induct any

third person in possession thereof and in fact, the third

respondent is ready to deposit the keys of the apartment

with the Registry of this Court subject to final

adjudication in any proceedings that may be

commenced by the petitioner. However, he submits that

the third respondent may be permitted to access the

subject property once in a month to ensure the

maintenance of the subject property. Sri Shivaprasad

Shantanagoudar, learned counsel for the petitioner,

submits that the petitioner would file an appropriate

civil suit within an outer limit of six weeks and the

undertaking given by the third respondent should be

taken on record to prevail subject to the orders of the

civil Court in such suit.

8. There have been multiple proceedings

between the parties, and it is indisputable that

their rival claims over the subject property has

prevailed without a complete adjudication over many

years. This Court in the nature of the allegations,

the time frame over which the litigation has

subsisted without an effective decision and the

concessions presently made to facilitate a complete

adjudication, is of the considered opinion that there

must be a direction for an expeditious disposal of any

suit that may be filed. For the foregoing, the following:

ORDER

[a] The third respondent is restrained from

alienating or creating any third party rights or inducting

any third person in the subject property for a period of

six months subject to the orders that could be made by

the civil Court in the suit that the petitioner may

commence in line with the submissions made on his

behalf.

[b] The civil Court shall consider the petitioner's

request for continuation of this arrangement until the

disposal of such suit also in the light of the statements

made before this Court on behalf of the third

respondent.

[c] The third respondent shall deposit the keys

of the subject property with the Registrar - Judicial, and

shall be at liberty to make appropriate application with

the Registrar - Judicial for handing over the keys for a

limited period of one day to ensure that the apartment

is properly maintained.

[d] The civil Court preferably shall dispose of any

such suit that is filed by the petitioner within a period of

18 months from the date of service of notice to all the

defendants therein.

SD/-

JUDGE

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