Sri Shivashankara Reddy N vs Sri R.Srikanth
2022 Latest Caselaw 6042 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4 T H DAY OF APRIL, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.2296 OF 2021 (CPC)

BETWEEN:

Sri. Shivashankara Reddy .N
S/o Narasihmareddy
Aged about 42 years
Residing at Sajjalavaripalli Village
Chelur Hobli, Bagepalli Taluk
Chikkaballapura District - 561207.
                                            ...Appellant
(By Sri Kalyan .R, Advocate)

AND:

1.   Sri. R. Srikanth
     S/o Late A. Ramachandra Rao
     Aged about 53 years
     No.1296/5 , 13 t h Main, 8 t h Cross
     Judicial Layout, Yalahanka
     Bengaluru North Bengaluru
     Bengaluru - 560065.

2.   Smt Asha Ravindra
     Aged about 52 years
     W/o Late Ravindra
     Residing at Raghu Residency
     Flat No.102, Opposite PWD Quarters
     Urva Stores, Ashok Nagar Post
     Mangalore-575006.

3.   Sri. Jishnu M Ravindra
     Aged about 26 years
     S/o Late Ravindra
                            :: 2 ::


     Residing at Raghu Residency
     Flat No.102, Opposite PWD Quarters
     Urva Stores, Ashok Nagar Post
     Mangalore- 575006.

4.   Smt. Jeshma M Ravindra
     Aged about 20 years
     D/o Late Ravindra
     Residing at Raghu Residency
     Flat No.102, Opposite PWD Quarters
     Urva Stores, Ashok Nagar Post
     Mangalore- 575006.

                                         ...Respondents
(By Sri N.D Vinaya Kumar, Advocate for R1
 Dr. V. Ravindra, Advocate for R2 to R4 - Ab sent)

     This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order dated 8.3.2021 passed on I.A
No.II in O.S No.3729/2020 on the file of the VIII Addl.
City Civil and Sessions Judge, CCH-15, Bengaluru,
allowing the I.A No.II filed under Order 39 Rules 1
and 2 r/w Section 151 of CPC.
[




     This MFA coming on for admission this day, the
Court delivered the following:

                      JUDGMENT

Heard Sri. R. Kalyan, counsel for the

appellant and Sri. N.D. Vinay Kumar, counsel for

respondent no.1. Counsel for respondent no.2 to

4 is absent.

:: 3 ::

2. The appellant is defendant no.4 in the suit

O.S.No.3729/2020 on the file of VIII Addl. City

Civil and Sessions Judge, Bengaluru. The suit is

instituted by the first respondent for specific

performance on the basis of agreement of sale

dated 21.2.2018. The appellant being the 4 t h

defendant is stated to be the purchaser of the suit

property with notice of the agreement in favour of

the first respondent. In the plaint, it is clearly

stated that the first respondent is in possession of

the suit property as a tenant. The first respondent

entered the suit property as a tenant and

according to him respondents 2 to 4 executed

agreement of sale in his favour for selling the suit

property for a consideration of Rs.1,40,00,000/-.

In the suit, the first respondent filed two

applications for temporary injunction. Under

I.A.1, he sought to restrain the respondents no.2

to 4 and the appellant from alienating the property

and under I.A.2, he sought to restrain the :: 4 ::

appellant and respondents 2 to 4 from

dispossessing him till disposal of the suit. The

trial court allowed these two applications.

Aggrieved by the order on I.A.2, this appeal has

been preferred by the 4 t h defendant.

3. It is the argument of Sri. R. Kalyan that

the appellant has instituted a suit for ejection

against the first respondent. The impugned order

would come in the way of prosecuting the suit and

therefore this order requires to be suitably

modified. Counsel for respondent no.1 submits

that the appellant is not a bonafide purchaser and

that he purchased the suit property with notice of

agreement in favour of the first respondent.

4. After hearing both sides, it is to be stated

that the question whether the appellant is a

bonafide purchaser or not, is to be decided by the

trial court after recording evidence. At this stage,

no inference can be drawn. As the plaint :: 5 ::

discloses, the first respondent has clearly stated

that he was inducted as a tenant by respondents 2

to 4 on a monthly rent and in this connection, a

rent agreement also came into existence. The

respondents 2 to 4 might have sold the property to

the appellant, but it is a different aspect of the

matter. It is not the case of the first respondent

that possession of the suit property was delivered

to him in part performance of the agreement.

Even now he continues to be a tenant. The

appellant has stated that he has instituted a suit

for ejection and the impugned order should not

fetter his hands from taking possession in case he

succeeds in the suit for ejectment. In case the

suit for ejection is decreed, the impugned order

may come in the way of taking possession.

Therefore the impugned order requires to be

modified as argued by the learned counsel for the

appellant. If the order is modified, the interest of :: 6 ::

the first respondent is not affected. Hence the

following:

ORDER

i. Appeal is allowed.

ii. The order passed by the trial court on

I.A.2 is modified to the effect that the

first respondent should not be

dispossessed from the suit property

without due process of law.

Sd/-

JUDGE

sd