Kumari Maya Sandeep vs Sri Sandeep S
2022 Latest Caselaw 11505 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF AUGUST, 2022

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

MISCELLANEOUS FIRST APPEAL No.7417 OF 2019 (CPC)

BETWEEN:

KUMARI MAYA SANDEEP,
MINOR, AGED 5-1/2 YEARS,
D/O SANDEEP. S,
PRESENTLY UNDER THE CARE AND CUSTODY
OF HER MOTHER AND NATURAL GUARDIAN
SMT. SWEATHA .R,
AGED ABOUT 31 YEARS,
W/O SRI SANDEEP.S.
PRESENTALY STAYING AT NO. K-101
"POORVA FAIRMONT APARTMENTS",
SECOND SECTOR, HSR LAYOUT,
PARANGIPALYA,
BENGALURU-560102.                    ...APPELLANT

(BY SRI K.BHANU PRASAD, ADVOCATE)

AND:

1.     SRI. SANDEEP.S.,
       AGED ABOUT 40 YEARS,
       S/O SRI. N. SRINIVASA REDDY,
       R/AT NO.2544/A, 26TH MAIN,
       14TH CROSS SECTOR I,
       HSR LAYOUT, BENGALURU - 560 102.
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2.   SRI. N. SRINIVASA REDDY,
     AGED ABOUT 62 YEARS,
     S/O LATE SRI. NARISIMHA REDDY,
     R/A NO. 2544/A, 26TH MAIN
     14TH CROSS SECTOR I, HSR LAYOUT,
     BENGALURU - 560 102.

3.   SMT. JAYALAKSHMI. S.REDDY,
     AGED ABOUT 59 YEARS,
     W.O SRI.N. SRINIVASA REDDY,
     R/A NO. 2544/A, 26TH MAIN,
     14TH CROSS SECTOR I, HSR LAYOUT,
     BENGALURU - 560 102.

4.   SMT. SOUMYA REDDY,
     AGED ABOUT 34 YEARS,
     D/O SRI.SRI.N. SRINIVASA REDDY,
     R/A NO. 2544/A, 26TH MAIN,
     14TH CROSS SECTOR I, HSR LAYOUT,
     BENGALURU - 560 102.

5.   M/S N.D. DEVELOPERS PVT. LTD.,
     HAVING ITS OFFICE AT NO.398,
     I FLOOR, 7TH CROSS, MICO LAYOUT,
     BTM SECOND STAGE,
     BENGALURU - 560 076.
     REPRESENTED BY ITS
     MANAGING DIRECTOR
     SRI. M.K.K. DURANI.             ...RESPONDENTS

(BY SMT.LATHA S.SHETTY, ADVOCATE FOR R1 & R4;
    R2, R3 AND R5 ARE SERVED)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF THE CODE OF CIVIL PROCEDURE,
1908.
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     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Sri.K.Bhanuprasad, learned counsel for appellant and

Smt.Latha S.Shetty, learned counsel for respondents 1 & 4

have appeared through video conferencing.

2. The facts are quite simple. The appellant has

filed a suit O.S.No.5481/2017 for partition and allotment of

her legitimate share in all the suit schedule properties. The

appellant has also filed an interim application along with

the plaint under Order 39 Rule 1 and 2 of the Code of Civil

Procedure seeking temporary injunction to restrain the

respondents 1 to 4 (defendants 1 to 4 in the pending suit),

their agents or anybody acting under them from alienating

the suit schedule properties including the apartments.

The Trial Court had issued emergent notice on IA

No.2 along with suit summons to the respondents. The

respondents have entered appearance before the Trial

Court and they filed an application for rejection of plaint. It

is said that constant request had been made to the Court

to consider application i.e., IA No.2 for granting preventive

relief. But the same has not been considered so far even

after two years.

3. Sri.K.Bhanu Prasad., learned counsel while

presenting his argument, strenuously urged that the suit is

filed in the year 2017 and the plaintiff has filed an

application for injunction but the same has not been

considered by the Trial Court. It also submitted that the

respondents have already alienated Item No.9 of the plaint

schedule property and they are making hectic efforts to

alienate other properties also.

Learned counsel therefore submits that the appeal

may be disposed of directing the Trial Court to consider

the application i.e., I.A.No.2 and pass appropriate order.

Submission is noted.

4. Learned counsel for respondents 1 to 4 has

urged several contentions.

5. Heard the contentions urged on behalf of

respective parties.

Suffice it to note that the suit is filed on 10.08.2017.

The plaintiff has filed an application in I.A.No.2 along with

plaint under Order 39 Rule 1 and 2 of CPC seeking

temporary injunction. The grievance of the appellant is

that despite constant request, the Trial Court has not

considered the application. In my view, the grievance

appears to be genuine for the simple reason that as and

when an application is moved by the parties, it is the duty

of the Court to consider the same and pass appropriate

orders thereon. In the present case, though the application

is filed way back in the year 2017, the Trial Court has not

made any attempt to consider the same and pass

appropriate orders.

Hence, this Court deem it appropriate to direct the

Trial Court to consider the application in I.A.No.2 within

one month from the date of receipt of this order and pass

orders.

Resultantly, the Miscellaneous First Appeal is

disposed off.

Sd/-

JUDGE

TKN