Karnataka High Court
Shivaganga Educational Trust vs Sri. K.L Nagendra on 17 November, 2022
Bench: Ravi V Hosmani
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MFA No. 4623 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 4623 OF 2022 (CPC)
BETWEEN:
SHIVAGANGA EDUCATIONAL TRUST,
REP. BY ITS PRESIDENT
B.N.THIPPESWAMY,
AGED ABOUT 59 YEARS,
S/O B.N.NANJUNDAPPA,
SIRA, AMARAPURA ROAD,
JYOTHINAGARA, SIRA TOWN,
TUMKUR DISTRICT-572 137.
...APPELLANT
[BY SRI. M.R.RAJAGOPAL, SR. COUNSEL FOR
SRI. H.N.BASAVARAJU, ADVOCATE (PH)]
AND:
1. SRI. K.L NAGENDRA,
S/O LINGANNA,
AGED ABOUT 51 YEARS,
R/O KALLUKOTE VILLAGE,
SIRA, SIRA TALUK,
TUMAKURU DISRICT-572 137.
Digitally signed by
GURURAJ D 2. SRI. NARASIMHA MURTHY K.H.,
Location: High
Court Of Karnataka S/O HANUMANTHAPPA,
AGED ABOUT 34 YEARS,
R/O BHAVANI NAGAR,
SIRA TOWN, SIRA TALUK,
TUMAKURU DISRICT-572 137.
3. SRI. VENKATACHALA B.H.,
S/O HANUMANTHARAYAPPA,
AGED ABOUT 25 YEARS,
R/O BAPPANADU MADALURU POST,
SIRA TALUK,
TUMAKURU DISRICT-572 137.
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MFA No. 4623 of 2022
4. SHREE SHAILA SAMSTANA JAGADGURU
DR.CHANNABASAVARAJENDRA MAHASWAMIJI,
NIDUMADIDI MUTT, PATTADYAKSHA,
GULURU VILLAGE, BAGEPALLI TALUK.
5. SRI. G.N.B.ARADYA,
S/O K.GUBBAIAH,
AGED ABOUT 63 YEARS,
R/AT SIRA TOWN, SIRA TALUK,
TUMAKURU DISRICT-572 137.
6. SRI. M.N.PUTTARUDRAPPA,
S/O NANJUNDAPPA, MAJOR IN AGE,
MANAGER OF SRI. KALINGAIAHANA MUTT,
SY.NO. 47, KALLUKOTE VILLAGE,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISRICT-572 137.
7. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
8. THE TAHSILDAR,
SIRA TALUK, SIRA,
TUMAKURU DISRICT-572 137.
9. THE SIRA TALUK EDUCATION SOCIETY,
REP BY ITS ADMINISTRATOR
EDUCATION DEPARTMENT,
SIRA TALUK, SIRA,
TUMAKURU DISRICT-572 137.
10. SRI. SHIVARAMAIAH,
S/O PUTTAMARAIAH,
AGED ABOUT 80 YEARS,
R/AT KALINGAIAHANA MUTT,
SY NO.47, KALLUKOTE VILLAGE,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISRICT-572 137.
...RESPONDENTS
[BY SRI. PADMANABHA V. MAHALE, SR. COUNSEL FOR
SRI. RAJANNA L.., ADVOCATE FOR R1 TO R3 (VC);
NOTICE TO R4 TO R10 ARE DISPENSED WITH
V/O DATED 01.07.2022]
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MFA No. 4623 of 2022
THIS MFA FILED U/O.43 RULE 1(r) OF CPC, AGAINST THE
ORDER DATED 08.06.2022 PASSED ON IA NO.7 IN O.S.NO.92/2021
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA,
ALLOWING IA NO.7 FILED U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 08.06.2022 passed by Senior
Civil Judge and JMFC., at Sira, in O.S.no.92/2021 on IA no.VII
filed under Order XXXIX rule 1 and 2 of CPC, this appeal is
filed.
2. Appellant herein was defendant no.8, while
respondents no.1 to 3 herein were plaintiffs; respondents no.4
to 10 herein were defendants no.1 to 7 respectively. They shall
hereinafter be referred to as such in this order.
3. O.S.no.92/2021 was filed seeking for setting aside
judgment and decree dated 31.01.1990 in O.S.no.5/1984
passed by Civil Judge, Madhugiri, in respect of suit property;
cancellation of registered sale deed dated 24.02.1992 executed
by defendant no.1 to defendant no.8; setting aside judgment
and decree dated 12.08.2020 in O.S.no.249/1993 passed by
Prl. Civil Judge, & JMFC., Sira, etc. In said suit, plaintiff filed
MFA No. 4623 of 2022
I.A.no.VII under XXXIX Rule 1 and 2 of CPC for restraining
defendant no.8 from putting up any construction on 'B' and 'C'
schedule properties during pendency of suit.
4. In affidavit, it was stated that decree in
O.S.no.5/1984 was obtained by defendants no.1 to 3 by
misrepresenting that they were in possession and enjoyment of
entire extent of land mentioned in schedule. It was asserted
that defendant no.1 was in occupation of a meager extent of
land bearing Sy.no.47 of Kallukote, but had claimed more
extent in plaint schedule. It was further stated that record of
rights of year 1977-78 indicated that site measuring
50 ft. X 75 ft. belonged to PLD bank, extent of 03 acres 36
guntas to Police Department, Court building was situated in 03
acres, while 13½ guntas was allotted for construction of
revenue staff quarters. Further record of rights of year 1987-88
mentioned that land was allotted to NES Office, vide MR
no.9/1959-60, to police department vide MR no.63/1971-72, to
PLD bank vide MR.no.56/1974-75, to Court building vide
MR.no.11/1973-74 and for revenue staff quarters vide
MR.no.11/1973-74. Lands were also allotted for Adijambhava
hostel, Taluk Office building, college play ground etc., which
MFA No. 4623 of 2022
established that defendant no.1 was not in possession of entire
extent of property. It was, therefore, contended that decree
cannot be executed and liable to be set aside.
5. It was also stated that defendant no.1 had executed
registered sale deed dated 24.02.1992 in favour of defendant
no.8 in respect of 'B' and 'C' schedule properties. Though,
thereafter defendant no.1 had filed O.S.no.249/1993 against
defendant no.8 for cancellation of sale deed, said suit ended in
compromise decree in collusion between parties and against
public policy. Therefore, said sale deed was also liable to be
cancelled. It was alleged that during pendency of suit,
defendant no.8 was attempting to put up permanent structures
on 'B' and 'C' schedule properties and had collected men and
material. It was stated that plaintiff had prima facie case and
would suffer irreparable loss and injury, if injunction were
refused and therefore, balance of convenience lie in their
favour.
6. Said application was opposed by defendants by
filing objections and written statement. It was contended by
defendant no.8 that there was no misrepresentation about, it
MFA No. 4623 of 2022
being in possession of suit property. While admitting putting up
construction, it stated that it was a charitable Trust being run
with no personal gain. Decree passed in earlier suit was
confirmed by Hon'ble Supreme Court and in guise of public
litigation, instant suit was filed which was not maintainable.
7. On consideration of rival contentions, trial Court
framed following points for consideration:
1. Whether the plaintiff No.1 has made
out prima-facie case in his favour?
2. Whether the plaintiff No.1 shows that,
the balance of convenience lies in his
favour?
3. Whether the plaintiffs will be put to
great hardship and injury, if an order of
injunction is not granted?
4. What order?
8. Thereafter, it passed impugned order allowing IA
no.VII, restraining defendant no.8 from raising any permanent
construction on 'B' and 'C' schedule properties till disposal of
suit.
9. Assailing same, this appeal is filed.
MFA No. 4623 of 2022
10. Sri M.R. Rajagopal, learned Senior Counsel
appearing for defendant no.8 - appellant submitted that
impugned order was grossly erroneous and unsustainable in
law. It was submitted that without giving necessary findings
regarding existence of prima facie case, balance of convenience
and irreparable loss and injury, trial Court had passed
impugned order, which was also cryptic. It was specifically
contended that defendant no.8 had produced about 35
documents in support of its contentions. However, learned trial
Judge referred to same in impugned order stating that they
were produced by plaintiff-appellant. While arriving at
conclusion regarding prima facie case, it considered rival
contentions regarding suit being barred by limitation and court
fee paid being inadequate.
11. By referring to decision of Hon'ble Supreme Court in
case of Y. A. Ajit Vs. Sofana Ajit1, it opined that trial was
best option to decide said contention. It further referred to
decision of this Court in V. Kirshnamurthy Vs. V. Ambuja2,
to hold that issue of court fee could not be treated as
preliminary issue.
(2007) 10 SCC 429,
W.P.no.36946/2017, DD 22.02.2022
MFA No. 4623 of 2022
Based on said observation, it concluded that plaintiff had
established prima facie case.
12. Insofar as balance of convenience, it simply stated
that defendant admitted that said lands were not converted,
which cast suspicion about defendants case. On said
observation, it held balance of convenience in favour of plaintiff
and proceeded to pass impugned order.
13. Relying upon decisions in M.Gurudas & Others
Vs. Rasaranjan & Others3; Kashi Math Samsthan &
Another Vs. Shrimad Sudhindra Thirtha Swamy &
Another4 and in Mohd. Mehtab Khan & Others Vs.
Khushnuma Ibrahim Khan & Others5, submitted that while
passing orders under Order XXXIX Rule 1 and 2, Civil Courts
were required to consider, (i) prima facie case (ii) balance of
convenience and (iii) irreparable injury. In absence of findings,
on said issues, order would be unsustainable. It was further
submitted that appellate Court in appeal against such orders
could not re-appreciate and substitute its view and therefore,
matter requires remand.
(2006) 8 SCC 367
(2010)1 SCC 689
2013 (9) SCC 221
MFA No. 4623 of 2022
14. Sri. Padmanabha V Mahale, learned Senior Counsel
for Sri. L. Rajanna, advocate for respondents no.1 to 3
(plaintiffs) sought to support impugned order. However, after
arguing for some time, he conceded that matter requires to be
remanded back to trial Court for fresh consideration.
15. Heard learned Senior counsel, perused impugned
order and record.
16. On perusal of impugned order, it is seen that
though trial Court framed necessary points for consideration,
while giving findings, there is lack of adequate reasoning.
Consideration of contentions on merits of suit, which it held
required trial, would not satisfy requirements of law. Therefore,
without dealing with rival contentions on merits, it would be
appropriate to set it aside on this short ground and remand
matter back to trial Court for passing fresh order after giving
reasoned findings on all points framed for consideration, by
fixing time frame.
17. Hence, I pass following:
ORDER
Appeal is allowed.
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MFA No. 4623 of 2022
Impugned order 08.06.2022 passed by Senior Civil Judge
and JMFC., at Sira, in O.S.no.92/2021 on IA no.VII filed under
Order XXXIX rule 1 and 2 of CPC is set aside, matter is
remanded back to trial Court for reconsideration of I.A.no.VII
in accordance with law within a period of four weeks.
No order as to costs.
Sd/-
JUDGE
Psg*
