Karnataka High Court
Smt.B.K.Lalitha vs Smt.Lakshmamma on 17 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
M.F.A.NO.5229 OF 2021 (CPC)
BETWEEN:
1. SMT. B.K. LALITHA,
W/O. SRI. D. NARAYANASWAMY,
AGED ABOUT 56 YEARS,
R/AT NO. 159,
GEETHANJALI LAYOUT,
HAL 3RD STAGE,
BENGALURU - 560 075.
2. M/S. VICTORY CONSTRUCTIONS,
NO.403, SUMUKHA ENCLAVE,
PRAKRUTHI LAYOUT, HENNUR,
KALYAN NAGAR POST,
BENGALURU - 560 043.
REP BY ITS PARTNERS,
SRI. C. SRINIVAS AND
SRI. P. VEERA RAGHAVA REDDY.
...APPELLANTS
(BY SRI. K. SUMAN, SR. COUNSEL FOR
SRI. SIDDARTH SUMAN, ADVOCATE)
AND:
1. SMT. LAKSHMAMMA,
W/O LATE KRISHNAPPA @ CHIKKAKRISHNAPPA,
AGED ABOUT 67 YEARS,
R/AT NO.80, VADDARAPALYA,
2
AGARA MAIN ROAD,
BENGALURU - 560 043.
2. SMT. KAMALA,
W/O LATE MURTHY
AGED ABOUT 42 YEARS,
R/AT NO.23, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
3. SRI. SHANKAR,
S/O LATE MURTHY,
AGED ABOUT 28 YEARS,
R/AT NO.23, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
4. SRI. LOKESH,
S/O LATE MURTHY,
AGED ABOUT 23 YEARS,
R/AT NO.23, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
5. SRI. GANGADHARA,
S/O. LATE KRISHNAPPA @
CHIKKAKRISHNAPPA,
AGED ABOUT 47 YEARS,
R/AT NO.78, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
6. SMT. MUNIYAMMA,
W/O LATE NAGARAJ,
AGED ABOUT 34 YEARS,
R/AT NO.78, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
3
7. SMT. JAYAMMA,
D/O LATE THAMMAIAH,
AGED ABOUT 57 YEARS,
R/AT NO.53, LAKKONDAHALLI,
HOSAKOTE TALUK,
BENGALURU RURAL - 562 114.
8. SMT. LAKSHMAMMA,
W/O LATE CHIKKAPAPAIAH,
AGED ABOUT 66 YEARS,
R/AT NO.63, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
9. SMT. UMA,
D/O LATE CHIKKAPAPAIAH,
AGED ABOUT 42 YEARS,
R/AT NO.63, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
10. SRI. SREEDHAR,
S/O LATE CHIKKAPAPAIAH,
AGED ABOUT 41 YEARS,
R/AT NO.63, VADDARAPALYA,
AGARA MAIN ROAD,
BENGALURU - 560 043.
11. M/S. KAVERI FOOD PRODUCTS
INDIA PVT. LTD.
HAVING ADDRESS AT NO.1,
PRARTHANA, KAVERI LAYOUT,
KAVERI NAGAR, HORAMAVU POST,
BENGALURU - 560 043.
REP BY ITS MANAGING DIRECTOR.
12. UNISHIRE HOUSING LLP,
REP BY ITS AUTHORIZED SIGNATORY,
SRI. G. NANDA KUMAR,
HAVING OFFICE AT NO.36,
4
RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020.
13. UNISHIRE SKYSCAPES LLP,
REP BY ITS AUTHORIZED SIGNATORY,
SRI. G. NANDA KUMAR,
HAVING OFFICE AT NO.36,
RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020.
14. SRI. B.K. SRINIVASAMURTHY,
S/O LATE P. KRISHNAMURTHY,
AGED ABOUT 59 YEARS,
R/AT NO.51, T.D. LANE COTTONPET,
BENGALURU - 560 053.
15. SRI. B.K. PRAKASH,
S/O LATE P. KRISHNAMURTHY,
AGED ABOUT 51 YEARS,
R/AT NO.51, T.D. LANE COTTON PET,
BENGALURU - 560 053.
...RESPONDENTS
(BY SRI. B. SATHYENDRANATH, ADVOCATE FOR C/R-1-10
& SRI. VENUGAOPAL M.S. ADVOCATE FOR R-1-10)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC AGAINST
THE ORDER DATED 13.09.2021 PASSED ON I.A.NO.1 IN
OS.NO.3097/2021 ON THE FILE OF THE LII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CCH-53,
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1
AND 2 R/W SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
The appellants aggrieved by the order dated
13.09.2021 passed on I.A.No.1 in O.S.No.3097/2021 by
the LII Additional City Civil and Sessions Judge,
Bengaluru, (CCH-53), filed this appeal.
2. Brief facts leading rise to filing of this appeal
are as under:
The respondents No.1 to 10 filed a suit for partition
and separate possession and also sought for a
declaration that the registered Sale deeds dated
19.12.2013, 04.09.2017 and Release deed dated
17.02.2021 and Joint Development Agreement dated
18.02.2021 are not binding on the right title and interest
of the respondents No.1 to 10. In the said suit,
respondents No.1 to 10 filed application I.A.No.1 seeking
for an order of temporary injunction restraining the
appellants from alienating the suit schedule 'B' property,
pending disposal of the suit and also filed an application
I.A.No.2, seeking for an order of temporary injunction
restraining the appellants from changing the nature of
the suit schedule 'B' property. The Trial Court after
hearing the parties allowed the application filed by the
respondents No.1 to 10 and restrained the appellant
from alienating the suit schedule 'B' property and from
creating any encumbrance over the suit schedule 'B'
property, pending disposal of the suit.
3. Learned Senior Counsel, Sri. K. Suman,
appearing for Sri. Siddarth Suman appearing for the
appellants submits that the appellants are ready to give
an undertaking stating that in case, if the respondents
No.1 to 10 succeeds in the suit the appellants will not
claim any equity and further submits that the alienation
shall be subject to the outcome of the suit, and further
he places a reliance on the order passed by this Court in
M.F.A.No.200764/2014, disposed of on 19.06.2014. He
also submits that the appellants have already filed an
undertaking affidavit and the same is placed on record.
Hence, on these grounds, he prays to allow the appeal.
4. Per contra, learned counsel for respondents
No.1 to 10 submits that in view of the undertaking
affidavit submitted by the appellants, the appeal may be
disposed of in terms of the undertaking.
5. Submission is placed on record.
6. It is not in dispute that the respondents No.1
to 10 have filed a suit for declaration of possession.
In the said suit, respondents No.1 to 10 have filed two
applications seeking for an order of temporary injunction
restraining the appellant from alienating the suit
schedule property and also from changing the nature of
the suit schedule 'B' property. The Trial Court after
hearing the parties allowed the application I.A.No.1 and
rejected the application I.A.No.2 filed by the respondents
No.1 to 10 and restrained the appellant from alienating
the suit schedule property. Learned Senior Counsel has
filed an affidavit of the appellants, wherein the
appellants have contended in their affidavit which reads
as under:
"1. As and when we sell/encumber all
or any of the flats falling to our respective
shares in the apartments constructed on the
suit schedule 'B' property, the same will be
subject to the result of the suit in
O.S.No.3097/2021 pending on the file of
the Hon'ble Court of the LII Additional City
Civil and Session Judge at Bengaluru
(CCH-53) and that we will not claim any
equities in this regard in the event the said
suit in O.S.No.3097/2021 is decreed as
prayed for by the plaintiffs/respondents
No.1 to 10.
2. We, the appellants, further
undertake that we will be keeping all the
intending purchaser(s), who intend to
purchase flats/apartments in the apartment
buildings constructed by us on the Schedule
'B' Property, informed of the pendency of
the suit in O.S.No.3097/2021 pending on
the file of the Hon'ble Court of the LII
Additional City Civil and Sessions Judge at
Bengaluru."
7. In view of the same, the impugned order
granted by the Trial Court needs to be modified.
Accordingly, in view of the above discussion, the appeal
is partly allowed, the impugned order passed by the
Trial Court is modified, in terms of the undertaking
affidavit filed by the appellants.
In view of disposal of appeal, I.A.No.1/2021 does
not survive for consideration and accordingly is disposed
of.
SD/-
JUDGE
GRD/PK
