Karnataka High Court
Sri. Gnanendra C S vs Smt Saroja M on 3 January, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M. F. A. NO.6537 OF 2021 (CPC)
BETWEEN:
SRI. GNANENDRA C S
S/O SRI. C T SRINIVASAPPA,
AGED ABOUT 44 YEARS,
R/O NO 322/56, 59TH CROSS, 10TH MAIN ROAD,
3RD BLOCK, RAJAJINAGAR,
BENGALURU 560010.
...APPELLANT
(BY SRI. SIDDANOORU VISHWANATHA, ADVOCATE)
AND:
1. SMT. SAROJA M
D/O LATE SRI. MANICKYAVELLU,
AGED ABOUT 58 YEARS,
R/O NO 463/25, 37TH CROSS, 2ND BLOCK,
RAJAJINAGAR,
BENGALURU 560010
2. SRI. I S GANAPATHI
S/O LATE SRI I K SUBBAIAH,
AGED ABOUT 42 YEARS,
3. SRI. K C DEVAIAH
S/O LATE SRI. K A CHENGAPPA,
AGED ABOUT 74 YEARS
RESPONDENT No.2 AND 3 ARE
2
R/O NO 1020, 'AMBA NIVASA', 4TH M BLOCK,
DR. RAJKUMAR ROAD, RAJAJINAGAR,
BENGALURU-560010
4. SMT G. VANAJAKSHI
W/O DR. M SRINIVAS, AGED ABOUT 59 YEARS,
R/O NO 1703, 7TH MAIN, E BLOCK,
RAJAJINAGAR, BENGALURU 560010
....RESPONDENTS
(BY SRI. S.G. BHAGAVAN, ADVOCATE FOR R-4
R-1 TO R-3 NOTICE DISPENSED WITH VIDE ORDER
DATED 22.12.2021 )
THIS MFA IS FILED UNDER ORDER 43 RULE 1 OF CPC,1908
AGAINST THE ORDER DATED 22.10.2021 PASSED ON I.A. NO. 1
AND 2 IN O.S.NO. 7464/2013 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-40), DISMISSING I.A. NO.1 FILED UNDER ORDER
XXXIX RULE 1 AND 2 OF CPC. DISMISSING THE I.A.NO.2 FILED
UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant being aggrieved by the order dated
22.10.2021 passed on I.A.Nos.1 and 2 in O.S.No.7464/2013
by XXXIX Additional City Civil and Sessions Judge, Bengaluru
City (CCH-40), has filed this appeal.
2. Brief facts leading rise to filing of this petition are
as under:
The appellant has filed a suit in O.S.No.7464/2013
seeking for the relief of specific performance of contract and
also for the relief of perpetual injunction. In the said suit,
the appellant has filed the applications i.e., I.A.No.1/2021
seeking for the relief of an order of temporary injunction
restraining the respondent No.4 from puttingup any
construction/carrying out any development activities over
the suit schedule property and to maintain status-quo during
the pendency of the suit and I.A.No.2/2021 for the relief of
temporary injunction restraining the respondents No.1 to 4
from alienating the suit schedule property during the
pendency of the suit. The Trial Court after hearing the
parties, passed the impugned order dated 22.10.2021,
dismissing the application filed by the appellant. The
appellant being aggrieved by the said order, has filed this
appeal.
3. Heard learned counsel for the appellant and
learned counsel for respondent No.4.
4. Learned counsel for the appellant submits that
respondent No.1 has executed agreement of sale in favour of
the appellant on 25.09.2002. He further submits that
respondent No.2 - General Power of Attorney holder of
respondent No.1 had executed a registered sale deed dated
25.02.2005 in favour of respondent No.3. Respondent No.3
in turn had executed a sale deed in favour of respondent
No.4. He further submits that respondent No.4 is trying to
change the nature of the suit schedule property. He further
submits that the Trial Court has committed an error in
dismissing the application. Hence, on these grounds, he
prays to allow the appeal.
5. Per contra, learned counsel for respondent No.4
submits that the appeal filed by the appellant challenging
the orders on I.A.Nos.1 and 2 is not maintainable as no
separate appeals have been filed by the appellant. He
further submits that respondent No.1 alleged to have
executed an agreement of sale in favour of the appellant in
the year 2002, and the suit came to be filed in the year
2013. He further submits that respondent No.2 being a
Power of Attorney holder of respondent No.1 had executed a
registered sale deed in favour of respondent No.3.
Respondent No.3 in turn sold the said land in favour of
respondent No.4. Respondent No.4 after obtaining
construction permission, has proceeded with the
construction. He also further submits that in case, if the
appellant succeeds in the suit, the appellant can very well
take the possession of the property. He further submits
that if injunction is granted, at this stage, respondent No.4
would be put to irreparable loss. Hence, on these grounds,
he prays to dismiss the appeal.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is the case of the appellant that respondent
No.1 had executed an agreement of sale in the year 2002
and suit came to be filed in the year 2013. Before filing the
suit respondent No.2, being a Power of Attorney holder, had
sold the suit schedule property in favour of respondent No.3
under a registered sale deed dated 25.02.2005. Respondent
No.3 in turn sold the suit schedule property in favour of
respondent No.4. The appellant has not challenged the
registered sale deed executed by respondent No.2 in favour
respondent No.3 and also sale deed executed by respondent
No.3 in favour of respondent No.4. As such, the registered
sale deed came to be executed prior to the filing of suit for
specific performance. Further, respondent No.4 after
obtaining construction permission from the competent
authority has commenced the construction work.
Respondent No.4 has dig the borewell. Further Respondent
No.4 has invested huge amount for construction. The Trial
Court has already made an observation that respondent
No.4 is permitted to continue to raise the construction, the
interest of the appellant can be protected by making it clear
that the construction raised shall be subject to the final
decision of the suit and in case the suit is decreed in favour
of the appellant, then respondent No.4 will either demolish
the construction or shall hand over the same to the appellant
without asking for any equity. The Trial Court has protected
the interest of the appellant in the impugned order.
Hence, I do not find any grounds to interfere with the
impugned order. Accordingly, appeal is dismissed.
SD/-
JUDGE
GRD
