Karnataka High Court
Smt. Nanjamma vs Smt. Rajamma on 4 August, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.2172/2023 (CPC)
BETWEEN:
1 . SMT. NANJAMMA
W/O. LATE THIMMARAYAPPA,
AGED ABOUT 92 YEARS,
2 . SRI. NAGARAJ
S/O. LATE THIMMAKKA,
AGED ABOUT 44 YEARS,
3 . SMT. MARIYAMMA
D/O. LATE THIMMARAYAPPA,
AGED ABOUT 65 YEARS,
4 . SRI. RAJU
S/O. LATE THIMMARAYAPPA,
AGED ABOUT 59 YEARS,
5 . SMT. GOWRAMMA
D/O. LATE THIMMARAYAPPA,
AGED ABOUT 55 YEARS,
6 . SRI. MUNIYAPPA
S/O. LATE THIMMARAYAPPA,
AGED ABOUT 52 YEARS,
7 . SRI. NARAYANA SWAMY
S/O. LATE THIMMARAYAPPA,
AGED ABOUT 50 YEARS,
2
8 . SMT. CHANDRIKA
D/O. LATE THIMMARAYAPPA,
AGED ABOUT 42 YEARS,
ALL ARE RESIDING AT NO.75,
PUTTENAHALLI VILLAGE,
J. P. NAGAR, 7TH PHASE,
BENGALURU SOUTH TALUK,
BENGALURU-560 078.
... APPELLANTS
(BY SRI V.LAKSHMINARAYANA, SENIOR COUNSEL A/W.
SRI V.RANGARAMU, ADVOCATE)
AND:
1 . SMT. RAJAMMA
W/O. M. NARAYANA DAS,
AGED ABOUT 78 YEARS,
R/AT POORNA HORTICULTURE,
2ND MAIN, 47TH 'A' CROSS,
8TH BLOCK, JAYANAGAR,
BENGALURU-560 070.
2 . SMT. M. N. DHARMAVARTHA
S/O. M. NARAYANA DAS,
AGED ABOUT 60 YEARS,
R/AT NO.201, ADARSHA PALACE,
9TH MAIN, 47TH 'A' CROSS,
JAYANAGAR,
BENGALURU-560 070.
3 . SRI. M.N. PRIYA DATTA
D/O. M. NARAYANA DAS,
AGED ABOUT 58 YEARS,
R/AT POORNA HORTICULTURE,
9TH MAIN, 47TH 'A' CROSS,
JAYANAGAR, BENGALURU-560 070.
3
4 . SRI. M. N. SHARANARTHY
S/O. M. NARAYANA DAS,
AGED ABOUT 54 YEARS,
R/AT NO. D-102,
ADARSH GARDEN,
4TH A CROSS, 2ND MAIN,
8TH BLOCK, JAYANAGAR,
BENGALURU-560 070.
5 . SRI. M.N. PARANJYOTHI
S/O. M. NARAYANA DAS,
AGED ABOUT 52 YEARS,
R/AT POORNA HORTICULTURE,
2ND MAIN, 47TH A CROSS,
8TH BLOCK, JAYANAGAR,
BENGALURU-560 070.
6 . SMT. GAYATHRI DARSHINEE
D/O. M. NARAYANA DAST,
AGED ABOUT 59 YEARS,
R/AT NO. D-1244, 4TH MAIN,
E-BLOCK, 2ND STAGE,
RAJAJINAGAR,
BENGALURU-560 010.
7 . M. N. TEJESWININ
D/O. M. NARAYANA DAS,
AGED ABOUT 56 YEARS,
R/AT POORNA HORTICULTURE,
2ND MAIN, 47TH 'A' CROSS,
8TH BLOCK, JAYANAGAR,
BENGALURU-560 070.
8 . M. N. DIVYA DARSHINEE
D/O.M. NARAYANA DAS,
AGED ABOUT 47 YEARS,
R/AT POORNA HORTICULTURE,
2ND MAIN, 47TH 'A' CROSS,
4
8TH BLOCK, JAYANAGAR,
BENGALURU-560 070.
9 . SRI. B. NIRGUNARTHY
S/O. LATE BRAHMANANDA,
AGED ABOUT 75 YEARS,
10 . SMT. MANJULA NIRGUNARTHY
W/O. B. NIRGUNARTHY,
AGED ABOUT 68 YEARS,
11 . SMT. SMITHA NIRGUNARTHY
D/O. B. NIRGUNARTHY,
AGED ABOUT 46 YEARS,
12 . SRI. AMITH NIRGUNARTHY
S/O. B. NIRGUNARTHY,
AGED ABOUT 44 YEARS,
13 . SRI. B. SHIVARTHY
S/O. LATE BRAHMANANDA,
AGED ABOUT 74 YEARS,
14 . SMT. KRUPA SHIVARTHY
W/O. B. SHIVARTHY,
AGED ABOUT 68 YEARS,
15 . SRI. BHARGAVA SHIVARTHY
S/O. B. SHIVARTHY,
AGED ABOUT 42 YEARS,
16 . SRI. SAHADEVA
S/O. B. SHIVARTHY,
AGED ABOUT 38 YEARS,
THE RESPONDENTS NO.9 TO 16
ALL ARE RESIDING AT
5
NO.38, 31ST MAIN,
J.P. NAGAR 1ST PHASE,
BENGALURU-560 078.
17 . DR. ASHOK GURUDAS
S/O.M . GURUDAS,
AGED ABOUT 66 YEARS,
18 . SMT. MAITHRI. N. GOWDA
D/O. LATE M. GURUDAS,
AGED ABOUT 69 YEARS,
19 . SMT. SUCHARITHA. V
D/O. LATE M. GURUDAS,
AGED ABOUT 67 YEARS,
20 . SMT. SUCHARITHA. V
@ SMT. CHARUMATHI
D/O. LATE M. GURUDAS,
AGED ABOUT 61 YEARS,
THE RESPONDENTS NO.17 TO 20
ARE ALL RESIDING AT NO.41,
K.R. ROAD, BASAVANAGUDI,
BENGALURU-560 004.
RESPONDENTS NO.1 TO 20 ALL
ARE REP. BY THEIR POWER OF
ATTORNEY HOLDER,
MR. B.M. KARUNESH,
S/O. LATE MADAIAH,
AGED ABOUT 57 YEARS,
R/AT NO.2/4, LANGFORD GARDEN,
RICHMOND TOWN,
BENGALURU-560 025.
21 . M/S. ADARSH DEVELOPERS
REP. BY ITS MANAGING PARTNER,
6
B.M. KARUNESH,
S/O. LATE MADAIAH,
AGED ABOUT 57 YEARS,
R/AT NO.2/4, LANGFORD GARDEN,
RICHMOND TOWN,
BENGALURU-560 025.
... RESPONDENTS
(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W.
SRI V.B.SHIVAKUMAR, ADVOCATE FOR C/R1 TO R21)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 14.03.2023 PASSED ON I.A. NO. 1
IN O.S.NO.7245/2022 ON THE FILE OF THE XXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-7),
ALLOWING THE I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.07.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission. With the consent of the
learned counsel appearing for the respective parties, heard the
matter on main itself though the matter is listed for considering
the application for vacating the interim order granted by this
Court.
2. The factual matrix of the case of the
respondents/plaintiffs herein in the suit in O.S.No.7245/2022 is
that plaintiffs are the absolute owners of the property bearing
Sy.No.32 measuring 2 acres 7 guntas of Puttenahalli village,
Uttarahalli Hobli, Bangalore South Taluk, Bangalore morefully
described in the schedule and the relief sought is for permanent
injunction restraining the defendants from interfering or
attempting to interfere with the plaintiffs' right, title, interest and
ownership of the property and also restraining the defendants
from interfering with the commencement and completion of the
project on the schedule property described in the schedule. The
schedule property is bearing No.32/1, 32/3, 32/4 measuring 5
acres 35 guntas situated at Puttenahalli village, Uttarahalli hobli,
Bangalore South Taluk. In the plaint it is contended that the
plaintiffs have executed the Power of Attorney in favour of Sri B
M Karunesh and also executed registered Joint Development
Agreement on 01.07.2005 for the purposes of development of
the property. It is also contended that the plaintiffs are the
owners of the property of land bearing Sy.No.32 measuring 7
acres 9 guntas including 18 guntas of karab situated at
Puttenahalli village, Uttarahali hobli, Bangalore South taluk and
the same was purchased by late Kadirappa under a sale deed
dated 16.01.1918. The said late Kadirappa was cultivating the
said land and was in joint possession along with joint family
property together with his children. Kadirappa and his seven
sons have effected family registered partition on 15.06.1954.
Under the aforesaid partition, the land in Sy.No.32 of
Puttenahalli village measuring 7 acres 9 guntas was divided into
three equal shares to M. Bramhananda, Dr. M. Gurudas and
Narayanadas and M.Bramhananda became the absolute owner of
2 acres 10.33 guntas, M.Narayanadas became the absolute
owner of 2 acres 10.33 guntas and Dr. M.Gurudas became
absolute owner of 2 acres 10.33 guntas in Sy.No.32 situated at
Puttenahalli village.
3. It is further contended that M.Bramhananda along
with his sons have entered into the partition on 10.11.1975 and
subsequently, the same was partitioned on 08.03.1992 which
had been recorded on 10.06.2004. Under the said partition,
plaintiff Nos.9 and 13 were allotted 40379.50 square feet each
and both plaintiff Nos.9 and 13 have left 4560 square feet for
widening of the road on the western side of the property.
Subsequent to the partition, plaintiff Nos.9 and 13 have
transferred the katha and other revenue records in their names
and they are paying taxes regularly. M.Narayanadas, his wife
and children have effected Memorandum of partition on
28.03.1974 and M.Gurudas, his wife and children have allotted
the share under the Memorandum of partition dated 15.06.1954
and they are the absolute owners and they entered into a Joint
Development Agreement. All the plaintiffs approached plaintiff
No.21 - M/s. Adarsh Developers and entered into a Joint
Development Agreement with plaintiff No.21 on 01.07.2005 and
also executed Power of Attorney. Subsequently, the plaintiffs got
converted the suit schedule property from agricultural to non-
agricultural property. In paragraph 8, they have pleaded that
the defendants who are utter stranger to suit schedule property
had filed original suit in O.S.No.8033/2014 and the same came
to be dismissed by the Trial Court in coming to the conclusion
that based on fabricated, concocted and created documents, the
suit for permanent injunction was filed. Against the said order,
an appeal was filed before the High Court and the said appeal
was pending and interim order has not been granted in the said
appeal.
4. It is also the contention of petitioner No.21 - M/s.
Adarsh Developers that they have invested crores of rupees for
commencement of the project and the project is a housing
project for the purpose of developing the entire extent of
property as mentioned in the schedule for the purpose of
undertaking multistoried apartments. An allegation is made that
when they started the work, when the defendants were
unsuccessful in getting the relief in O.S.No.8033/2014 and also
in R.F.A.No.1060/2020, they made an attempt to interfere with
the work undertaken by the plaintiffs and hence, they filed the
suit seeking the relief of injunction.
5. Inter alia, the plaintiffs have also sought for an order
of temporary injunction and an exparte order of temporary
injunction was granted by the Trial Court restraining the
defendants from commencement and completion of the project
in the suit schedule property i.e., to the extent of 5 acres 35
guntas and reiterated the plaint averments and the same is also
resisted by the defendants by filing an objection statement and
also filed the written statement and the Trial Court having
considered the contention of the plaintiffs as well as the
defendants, granted an order of injunction restraining the
defendants from interfering with the possession of the plaintiffs
over the suit schedule property in any manner till the disposal of
the case. Hence, the present appeal is filed before this Court.
6. The main contention urged in this appeal is that the
Trial Court has committed an error in granting an interim order
without application of mind and also without understanding of
the case of the parties and wrongly exercised the powers and
simply proceeded to grant an order of injunction which resulted
in substantial failure of justice hence, the same has to be set
aside. The counsel also would vehemently contend that
injunction should be granted on undisputed facts and material.
In support of his argument, he relied upon the judgment of the
Apex Court in the case of N R DONGRE AND OTHERS vs
WHIRLPOOL CORPORATION reported in (1996) 5 SCC 714
and brought to notice of this Court paragraph 2 of the said
judgment wherein the Apex Court discussed with regard to that
injunction has to be granted in respect of undisputed facts and
the material which can legitimately be taken into account at the
interlocutory stage. The counsel also relied upon the judgment of
the Apex Court in the case of SKYLINE EDUCATIONAL
INSTITUTE (INDIA) PVT. LTD vs S L VASWANI reported in
(2010) 2 SCC 142 and brought to notice of this Court
paragraph 19 wherein also the Apex Court made an observation
that there will be no warrant for exercise of powers under Article
136 of the Constitution and comes to the conclusion that High
Court, in refusing to entertain the appellant's prayer for
temporary injunction is vitiated by an error apparent or
perversity.
7. The counsel referring these judgments would
vehemently contend that while considering the application for an
injunction in the present case, the learned Trial Judge should
have considered the admitted statement of the erstwhile owners
i.e., Brahmananda and Narayanadas including the Tahsildar and
other persons who gave the statements before the authority but
the same was not considered and passed an order in discarding
the statements. The very Brahmananda and Narayanadas who
claims that they are the owners of the property also given the
statements in the year 1975 itself. The counsel also would
vehemently contend that the Trial Judge has discarded the
statement made before the Deputy Commissioner on the ground
that the effect of such a statement is not explained. Thus, the
very approach of the Trial Court is nothing but material
irregularity committed by the Trial Judge. The counsel also in
his arguments would vehemently contend that the Deputy
Commissioner while granting the land even mentioned that the
sale deed dated 30.06.1958 is being undisputed fact.
8. The counsel also relied upon the judgment of the
Apex Court reported in (2004) 8 SCC 488 in the case of
MAHARWAL KHEWAJI TRUST (REGD.) vs BALDEV DASS
and brought to notice of this Court paragraph 10 and contended
that unless and until a case of irreparable loss or damage is
made out by a party to the suit, the Court should not permit the
nature of the property being changed which also includes
alienation or transfer of property which may lead to loss or
damage being caused to the party who may ultimately succeed.
The counsel also vehemently contends that there is a
presumption under Section 47 of the Registration Act, 1908.
The respondents herein claim their right through the sale deed
dated 30.06.1958 which was executed by Brahmananda and
Narayanadas who are also the vendors of the appellants herein
and by virtue of the said sale deed, there is a presumption under
Section 47 of the Registration Act and the same is also not taken
note by the Trial Court. The counsel also vehemently contend
that certified copy of the sale deed dated 30.06.1958 has
already been marked as an exhibit in the earlier suit between
the same parties i.e., in O.S.No.8033/2014 and the Trial Court in
the earlier proceedings held that the sale deed is not valid in the
eyes of law and the said issue is subjudice before this Court in
R.F.A.No.1060/2020 and the Trial Court considered the finding of
the said appeal and when the appeal is pending and the matter
is subjudice, the Trial Court ought not to have considered the
same.
9. The counsel also in his argument vehemently
contends that second suit is not maintainable and the interim
relief granted is not sustainable in the eye of law. The counsel
would vehemently contend that when there was a sale deed of
30.06.1958 read with re-grant order dated 30.07.1975, there is
a prima facie divesting of the title in favour of the appellants and
presumption under Section 47 of the Registration Act ought to
have been taken note of by the Trial Court but fails to take note
of the same. The counsel also relied upon the judgment of the
Apex Court in the case of ANATHULA SUDHAKAR vs P BUCHI
REDDY reported in (2008) 4 SCC 594 and brought to notice of
this Court paragraph 14 wherein it is held that when a prayer for
declaration will be necessary only if the denial of title by the
defendant or challenge to the plaintiff's title raises a cloud on the
title of the plaintiff to the property. A cloud is said to rise over a
person's title, when some apparent defect in his title to a
property. The counsel also would vehemently contend that there
is no cause of action for the second suit and in the earlier suit
also the issues involved between the parties are with regard to
the same cause of action.
10. The counsel would vehemently contend that in the
earlier suit filed by the appellants herein in O.S.No.8033/2014,
the prayer is for the relief of permanent injunction against the
defendants who are the plaintiffs in O.S.No.7245/2022 and the
counsel brought to notice of this Court paragraph 21 of the plaint
wherein cause of action is stated and the counsel brought to
notice of this Court in cause of action specifically stated that in
the month of January 2014 when the defendants along with
defendant No.21 were found near the suit schedule property and
also in the month of January 2021 when the copies of the JDU's
were obtained and also in the February 2014 when the order of
the Assistant Commissioner was obtained and the same
challenged before the Deputy Commissioner and the cause of
action mentioned in the earlier suit and in the present suit is also
similar.
11. The counsel brought to notice of this Court that the
cause of action mentioned in the present suit that is with regard
to the dismissal of the suit and filing of R.F.A.No.1060/2020. The
counsel would vehemently contend that a false averment made
in the cause of action that High Court of Karnataka refused to
grant the injunction but the fact that the injunction application
was not dismissed wherein the High Court passed an order that
the said application will be considered along with the main
appeal. But suppressing the truth, the plaintiffs/respondents
herein have obtained an order of injunction fraudulently and
cause of action is very clear that the defendants became active
and started interfering with the work of construction including
commencement of excavation of the project work. Hence, it is
clear that when the appeal was pending before the Court, they
made an attempt to take up the construction and the same is
also subject matter of the earlier suit.
12. The counsel in support of his arguments relied upon
several judgments contending that the suit itself is not
maintainable and the Court cannot grant any such relief. The
counsel also brought to notice of this Court to the judgment
reported in (2018) 16 SCC 228 and brought to notice of this
Court paragraph 23 wherein the Apex Court contend that there
is no cause of action to the second suit since the subject matter
of the earlier suit and the present suit is one and the same and
clever drafting will not create any cause of action and cause of
action cannot be substantially improved.
13. The counsel also would vehemently contend that
when the very same relief is sought, Section 10 of CPC attracts
and second suit between the same parties is not maintainable
and hence, injunction renders infructuous and no material to
constitute a fresh cause of action it is nothing but an abuse of
process of law and the suit itself is not maintainable. The counsel
would vehemently contend that when there is no cause of action
to file a separate suit, the Trial Court ought not to have granted
any relief. The counsel also vehemently contend that regrant
order has attained its finality and the same is not challenged and
after regrant also katha has been effected and the fact finding of
regrant cannot be dis-aggrieved by the Court. The counsel in
support of his argument also relied upon the several judgments
particularly in his written submission reiterated the principles laid
down in the judgments which have been furnished in three
volumes. The main contention of the counsel is that in the
absence of any challenge to the sale deed dated 30.06.1958 and
regrant order dated 30.07.1975, the suit for injunction is not
maintainable.
14. The counsel mainly relied upon the judgment
reported in (2009) 10 SCC 338 in the case of AENIT
MATAPLAST (P) LTD. vs STATE OF MAHARASHTRA and
brought to notice of this Court paragraphs 30 and 31 wherein
the Apex Court held that if any construction is made and the
same would amounts to change the nature of the property that
cannot be done when the appeal is pending before the Court.
The counsel relied upon the judgment reported in (2004) 8 SCC
488 in the case of MAHARWAL KHEWAJI TRUST (REGD.)
FARIDKOT vs BALDEV DASS and brought to notice of this
Court paragraph 10 wherein it is held that changing the nature
of the property by putting up construction requires to be
restrained since the appeal is pending.
15. The counsel also relied upon the judgment reported
in (2007) 14 SCC 721 in the case of SHRIDEVI AND
ANOTHER vs MURALIDHAR AND ANOTHER and brought to
notice of this Court paragraph 30 and the judgment reported in
(1983) 4 SCC 31 and brought to notice of this Court
paragraphs 6 and 7 and the judgment reported in AIR 1975 AP
187 in the case of NAWAB MIR BARKAT ALI KHAN vs
NAWAB ZULFIQUAR JAH BAHADUR AND OTHRS and
brought to notice of this Court paragraph 5 wherein it is held
that possession of the parties become irretrievable if
construction is permitted and trespasser cannot be granted an
order of injunction and ought to have protected the property till
the disposal of the appeal in R.F.A.
16. The counsel also in his argument relied upon the
Apex Court judgment reported in (2013) 4 SCC 333 in the case
of ASPI JAL AND ANOTHER vs KHUSHROO RUSTOM
DADYBURJOR and brought to notice of this Court paragraph 9
wherein it is observed that basic purpose of Section 10 of CPC to
prevent the Courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action. The counsel referring this
judgment would contend that even the Court can invoke Section
10 of CPC and there cannot be two suits for the same cause of
action.
17. The counsel relied upon the judgment reported in
(2020) 5 SCC 410 in the case of AMBALAL SARABHAI
ENTERPRISE LIMITED vs K S INFRASPACE LLP LIMITED
AND ANOTHER and contend that injunction is obtained falsely
stating that the High Court has rejected an injunction application
when the same was not decided on merits and the High Court
order is very clear that the application will be considered along
with main appeal and hence, suppressed the facts and obtained
the order thus, the said judgment is aptly applicable to the case
on hand. When injunction order is obtained by suppressing the
truth, there cannot be any injunction order and the plaintiffs
have to approach the Court with clean hands.
18. The counsel also in support of his arguments relied
upon the judgment reported in AIR 1966 SCR 1332 in the case
of SHEODAN SINGH vs DARYAO KUNWAR and brought to
notice of this Court paragraph 14 wherein Apex Court held that it
is well settled where a decree on merits is appealed from, the
decision of the Trial Court looses its character of finality and
what was once res judicata again becomes res sub-judice and it
is the decree of the appeal Court which will then be res judicata.
The counsel also in support of his argument relied upon the
judgment reported in (2018) 16 SCC 228 in the case of
CANARA BANK vs N G SUBBARAYA SETTY AND ANOTHER
and brought to notice of this Court paragraphs 19 to 23, wherein
it is observed that hearing of second case may be adjourned or
may be stayed in order to avoid the outcome of the appeal in the
first case and filing of an appeal would render the res sub-judice
and res judicata. The counsel also relied upon the judgment
reported in (2020) 15 SCC 681 in the case of STATE OF
ANDHRA PRADESH AND ANOTHERS vs B RANGA REDDY
(DEAD) BY LEGAL REPRESENTATIVES AND OTHERS and
brought to notice of this Court paragraph 24 wherein it is held
that when an appeal is pending, decree including findings on
issues does not attain its finality hence, it is res sub-judice and
not res judicata. The counsel referring these judgments would
vehemently contend that the Trial Court ought not to have
granted the relief when the appeal is pending before the High
Court and the cause of action for both the suits is one and the
same.
19. Per contra, the learned counsel appearing for the
respondents in his argument would vehemently contend that the
appellants have not produced any documents with regard to the
grant of land and an endorsement was also given on Sunday i.e.,
on 10.08.1975 and the same is also observed by the Trial Court.
The counsel also would vehemently contend that no original
documents of grant are produced before the Court and the same
is also discussed by the Trial Court. The counsel in his argument
also brought to notice of this Court page 638 of the order
passed in O.S.No.8033/2014 wherein in paragraph 12 the Trial
Court considered that the document of sale deed which is
marked as Ex.P1 dated 30.06.1958 and also Ex.P2 that is the
order dated 30.07.1975 and taken note that to disprove the
execution of Ex.P1 sale deed, the defendants have produced
Ex.D10 that is also the sale deed bearing registration
No.1379/1957-58 and in the said number, different sale deed
has been registered and opined that there cannot be two sale
deeds in one number. The counsel also brought to notice of this
Court to the discussion made in paragraphs 14 and 16 wherein
considered the issues involved between the parties and when
there is no merit in the suit filed by him, filing of an appeal will
not take away the right of the respondents to file a separate
suit. The counsel in his argument vehemently contend that the
cause of action pleaded in the suit is different.
20. The counsel in support of his argument, relied upon
the judgment of this Court reported in ILR 2014 KAR 6025 in
the case of SMT. SHAKUNTHALAMMA AND OTHERS vs
SMT.KANTHAMMA AND OTHERS and brought to notice of this
Court paragraph 33 wherein this Court held that insofar as relief
under Order XXXIX Rule 1(b) and 1(c) is concerned, such a relief
is available only to the plaintiff and the defendant cannot
maintain an application for the said reliefs in a suit filed by the
plaintiff, irrespective of the fact that his right to such relief arises
either from the same cause of action or a cause of action that
arise subsequent to filing of the suit. However, it is open to the
defendant to maintain a separate suit against the plaintiff and
seek the relief provided under Order XXXIX Rule 1(b) and 1(c) of
the Code and hence, filing of second suit is not barred by law
and second suit is maintainable.
21. The counsel also in support of his arguments he
vehemently contend that no preservation is required to maintain
either status quo or setting aside the order of temporary
injunction. The counsel would vehemently contend that the
documents which have been produced voluminously before the
Trial Court discloses that there was a partition in the year 1960
and subsequently, RTC also found standing in the name of the
respondents and no such grant and grant is also created and tax
paid receipts which have been produced before the Court clearly
establishes that the respondents have got the title over the suit
schedule property and the Trial Court having taken note of the
facts, considered the same while passing an interim order.
Hence, prayed this Court to dismiss the appeal.
22. The counsel also in support of his arguments relied
upon the judgment reported in 1968 (1) MYS L.J 552 in the
case of RANGAMMA vs KRISHNAPPA and brought to notice
the head note wherein observed with regard to discretion of Trial
Court with regard to interference on an appeal. Granting or
refusal of temporary injunction rests on the sound exercise of
discretion by the Court. Such exercise of discretion cannot be
lightly interfered with by the Appellate Court, unless it is shown
that such exercise of discretion is unreasonable or capricious.
The counsel also relied upon the judgment reported in (1996) 5
SCC 714 in the case of N R DONGRE AND OTHERS vs
WHIRLPOOL CORPORATION AND ANOTHER and brought to
notice of this Court paragraph 8 wherein also the Apex Court
observed that interference in the appeal by the Appellate Court
in respect of the orders and temporary injunction passed by the
Trial Court is limited and such interference is permissible only if
the order is perverse or capricious. Merely because the appellate
court might take a different view is not a ground to interfere with
the discretionary orders passed by the Trial Court.
23. The counsel also relied upon the judgment reported
in 1990 (SUPP) SCC 727 in the case of WANDER LTD., AND
ANOTHER vs ANTOX INDIA P. LTD and brought to notice of
this Court paragraphs 14 and 16 wherein it is held that merely
because the Appellate Court might take a different view is not a
ground to interfere with the discretionary orders of injunction
passed by the Trial Court. The appellate Court will not interfere
with the discretion of the Trial Court and substitute its discretion.
The counsel also relied upon the judgment reported in ILR 1995
KAR 22 in the case of UTTARADHIMATH vs SRI SRI
RAGHAVENDRASWAMY MATH wherein it is held that the
orders does not become perverse by merely branding it. Higher
Court will have to see whether Trial Court has willfully
disregarded material pleadings or consciously violated rule of law
or procedure. The counsel also vehemently contend that
conduct of parties to be taken into account while granting or
refusing injunction. The counsel also relied upon the judgment
reported in (2012) 1 SCC 735 in the case of MAKERS
DEVELOPMENT SERVICES PRIVATE LIMITED vs. M.
VISVESVARAYA INDUSTRIAL RESEARCH AND
DEVELOPMENT CENTRE and brought to notice of this Court
paragraph 11 wherein observed that conduct of parties must be
taken into account while granting or refusing injunction. The
counsel relied upon the judgments reported in ILR 1973 KAR
1264 and ILR 1997 KAR 3223 wherein an observation is made
that in a suit for injunction, the only question that arise for
consideration is possession. The counsel also relied upon the
judgment reported in (1973) 2 SCC 358 in the case of M
KALLAPPA SETTY vs M V LAKSHMINARAYANA RAO and
contend that the plaintiff can on the strength of the possession
resists interference of the defendant who has no better title than
himself and get an injunction to restrain disturbance of his
possession. The counsel in his argument vehemently contend
that second suit is maintainable when different cause of action is
set out in the plaint and the appellate Court should be very slow
in reversing the same and contend that appeal is liable to be
dismissed.
24. Having heard the learned counsel appearing for the
respective parties and also having considered the principles laid
down in the judgments referred supra by the respective counsel
the point that would arise for the consideration of this Court
that:
(i) Whether the Trial Court has committed an error in
granting an order of injunction when the appeal is
pending and whether the cause of action is different
in the present suit?
(ii) What order?
25. Having considered the pleadings of the parties it is
not in dispute that the appellants herein have filed a suit earlier
for the relief of permanent injunction in O.S.No.8033/2014
wherein cause of action set out in paragraph 21 is with regard to
23.04.2008 when plaintiff No.7 got the copy of the order dated
30.07.1975 and also in the month of January 2014 when the
defendants along with defendant No.21 were found on the
schedule property and also in the month of January 2014 when
the copies of JDUs were obtained and also in the month of
February 2014, when an order of the Assistant Commissioner
was obtained and also this Court has to look into the averments
of the present plaint and prayer. In the present suit the relief
sought is for the relief of permanent injunction restraining the
defendants from interfering or attempting to interfere with the
plaintiff's right, title and interest and ownership of the property
and also restraining the defendants from interfering with the
commencement and completion of the project on the schedule
property described in the schedule. The cause of action to file
the suit set out that the same was arose on several dates as
indicated in the petition and subsequently when
O.S.No.8033/2014 was dismissed and on dismissal order,
R.F.A.No.1060/2020 came to be filed and the High Court of
Karnataka refused to grant injunction as a result the defendants
became active and started interfering with the work of
construction including commencement of excavation of the
project work and subsequently repeatedly on several dates.
26. The cause of action set out in the earlier suit as well
as in the present suit is with regard to that defendant No.21 was
found near the schedule property and also a JDU was obtained in
February 2014 and subject matter of the present suit is also not
distinct but cause of action set out was arisen in view of the
dismissal of the suit in O.S.No.8033/2014 and also specifically
stated that RFA was filed and filing of RFA also is a cause of
action and the same has been stated. It is also stated that the
High Court refused to grant injunction. But on perusal of
material on record, no such refusal is found as rightly pointed
out by the counsel for the appellants, wherein this Court ordered
to consider the said application along with main appeal. The
cause of action is also stated with regard to the construction
work, when the JDU was disputed in the earlier suit and the
same is also subject matter in the earlier suit and cause of action
also stated in the earlier suit with regard to on the basis of JDU
found the persons in the spot. It is contended that defendant
No.21 is found near the suit schedule property in the earlier suit.
The present suit is also, no doubt, filed by the other defendants
of O.S.No.8033/2014 but defendant No.21 is also made as
plaintiff in the present suit as plaintiff No.21 and the issue is with
regard to completion of project work and included defendant
No.21 as a party to the suit in the present suit as plaintiff. When
such relief is sought and when the appeal is admitted, first of all,
the present respondents have suppressed the fact that injunction
application would be considered along with the main appeal and
it is mentioned in cause of action that injunction was refused by
this Court in RFA and hence, it is clear that respondents herein
have not approached the Court with clean hand and with an
intention to seek interim relief stated that the High Court has
refused to grant the injunction.
27. Apart from that, cause of action set out in
O.S.No.8033/2014 and also in the present suit is also
interconnected with regard to the construction work undertaken
by defendant No.21 and in O.S.No. 8033/2014 and in the
present suit seeks only for the relief of injunction. Hence, it is
clear that cause of action is one and the same and appeal is also
pending before the Court for consideration. The appeal is also a
continuation of the suit. No doubt the counsel for the
respondents/plaintiffs contend that the Trial Court has given the
finding in paragraphs 12, 41, 42 and 43 with regard to the prima
facie case of the appellants herein and when the said finding was
questioned before this Court and when the appeal also admitted,
the Trial Court ought not to have considered while passing an
interim order. No doubt, the Trial Court while considering I.A.
taken note of non-production of the original document based on
which the appellants are claiming their right. The reasoning is
that the plaintiffs have made out prima facie case. When the
appeal is pending before the High Court, another suit was filed
making false submission that High Court has refused to grant
any interim order, though the same was not considered on
merits in the appeal and the same is pending for consideration
and when this Court ordered that the same would be considered
along with merits. The present respondents/plaintiffs have not
approached the Court with clean hands and the discretionary
relief for granting injunction invoking Order XXXIX Rule 1 and 2
of CPC is a discretionary relief and discretion should not be
exercised when the material facts are suppressed before the
Trial Court. No doubt, there is a dispute with regard to the title
of the properties and both of them claimed their title.
28. It is also important to note that in both the suits that
is O.S.No.8033/2014 and O.S.No.7245/2022 (the present suit)
they sought for only the relief of permanent injunction and the
crux of the issue is with regard to that the plaintiffs are claiming
that the suit schedule property is an ancestral property and
there was a partition. On the other hand, it is the claim of the
appellants herein that earlier they have purchased the property
in the year 1958 by the Brahmanand and Narayandas and
Others and the same is also reflected in the grant order and
grant also made in the year 1975. Before granting the order also
statements of some of the witnesses were recorded before the
Deputy Commissioner and same is also placed on record and the
same includes the said Brahmanand and Narayandas and the
same is also produced before the Court and they are also parties
to the earlier sale deed of the year 1958 and the issue involved
between the parties is not finally adjudicated. As contended by
the counsel for the appellants, the matter is sub-judice before
this Court but a suit is filed by the respondents herein seeking
for an order of injunction knowingfully well that the appeal is
admitted and the matter is pending for consideration and a
statutory appeal is filed before this Court and when the
appellants have a right of statutory appeal, the same has to be
considered by this Court.
29. It is also not in dispute that the appeal is pending for
consideration and under the statutory appeal, this Court has to
consider both factual aspects as well as question of law and re-
appreciate both mixed question of fact and law. Though suits are
filed by both the appellants as well as the respondents herein, I
have already pointed out that both the suits for the relief of
injunction and both of them have not claimed title in the
respective suits and when such being the case, when the issue is
pending before the Court under the statutory appeal, matter has
to be reanalyzed by this Court. The relief is also sought before
the Trial Court by the present respondents not to interfere with
the construction work. The judgment relied upon by the
appellants in the case of AENIT MATAPLAST (P) LTD. referred supra,
the Apex court held that if any construction is made and the
same would amounts to change the nature of the property that
cannot be done when the appeal is pending before the Court.
The material discloses that based on the interim order obtained
by the respondents before the Trial Court they started
construction work and before this Court also they have given an
undertaking that they are not going to continue the same and
thereafter when such an undertaking was given, in spite of it,
when they continued the work and the same is brought to the
notice of this Court and this Court directed not to put up any
construction. In the other judgment the Apex Court held in
Maharwal Khewaji Trust case that changing the nature of the
property by putting up construction requires to be restrained
since the appeal is pending and if the construction is permitted,
it will leads to multiplicity of proceedings among the parties. No
doubt the counsel for the respondents vehemently contend that
the appellants are not having any case at all and the very grant
is disputed and the very earlier sale deed is disputed and the
sale deed bears the different registration number and the same
is also in respect of not the said sale and the same is in respect
of different sale and the same has to be adjudicated in a
statutory appeal. It is also important to note that the Apex Court
in the case of Shridevi and another and in the other case Nawab
Mir Barkat Ali khan referred supra held that possession of the
parties become irretrievable if construction is permitted and
when such ratio is held that construction cannot be permitted
when the appeal is pending. The Trial Court also ought not to
have granted the relief of injunction when the appeal is pending
and matter is subjudice before the Court. In the judgment of the
Apex Court referred supra in Ambalal case, the Apex Court held
that if an injunction is obtained falsely stating that High Court
has refused to grant an injunction and when the same is also not
considered on main and it will be considered along with main
and the very suppression of facts in obtaining the order also not
sustainable in the eye of law and the said judgment is apply
applicable to the case on hand as contended by the appellants
counsel.
30. It is also settled law that where a decree on merits is
appealed, the decision of the Trial Court loses its character of
finality and what was once resjudicata again become res-
subjudice and it is the decree of the appellate Court which will
then be resjudicata and the same is also held in the judgment of
the Apex Court in Sheodan Singh case. It is also important to note
that recently the Apex Court held in the case of Canara Bank
case particularly in paragraph Nos.19 to 23 held that hearing of
second case may be adjourned or may be stayed in order to
avoid the outcome of the appeal in the first case or otherwise
filing of appeal would render res sub-judice and res judicata. No
doubt the counsel appearing for the respondent in his argument
vehemently contend referring the judgment of Rangamma case
and also N.R.Dongre case of the Appellate Court and also in the
case of Wander Ltd. referred supra that Appellate Court might
take a different view is not a ground to interfere with the
discretionary orders of injunction passed by the Trial Court and
exercise of discretion cannot be the lightly interfered with by the
Apex Court unless it is shown such exercise of discretion is
unreasonable and capricious and these judgments will not comes
to the aid of the respondents since while obtaining an order in
the cause of action it is stated that High Court has refused to
grant injunction and the said pleading is against the material on
record and the IA has not been considered on merits and it
discloses that the said IA would be considered along with the
main appeal. When such being the case, the very exercise of
discretion is nothing but unreasonable and capricious, since the
Trial Court also while granting an order taken note of earlier
findings and the same is questioned before this Court and not
attained its finality and Trial Court ought not to have comes to
such a conclusion and I have already pointed out that the cause
of action pleaded in both the suits are similar and not different.
No doubt the counsel appearing for the respondent also relied
upon the judgment of this Court that second suit is maintainable
i.e. Smt.Shakuntalamma's case, wherein the Court considering
order 39 Rule a, b and c held that, both plaintiff and defendant
can seek for the relief under Order 39 Rule 1(a), but in respect
of Order 39 Rule 1(a) and 1(c), the suit is not barred and it is
open to the defendant to maintain a separate suit and the same
is also subject to the different cause of action. I have already
pointed out that having perused the cause of action set out in
both the suits are in respect of the same cause of action and no
new cause of action that arise subsequent to filing of the suit
and hence, the said judgment is also not comes to the aid of the
respondents to maintain a separate suit and seek for an order of
injunction. No doubt in the earlier suit injunction was refused to
the appellants herein and Trial Court also discussed in length
with regard to the claim made by the appellants and the same
has not yet attained its finality and finality will be attained only
on consideration of appeal which is pending before the Court and
when the judgment and decree of dismissal of suit is appealed
before the Court, the Trial Court ought not to have considered
the relief sought and the fact that appeal is pending before this
Court is also brought to the notice of the Trial Court while
considering the application filed under Order 39 Rule 1 and 2 and
I have already pointed out that in the earlier suit also sought for
restraining the respondents herein from putting up any
construction and in the present suit filed by the respondents
herein seeking the relief not to interfere with the construction
work undertaken by the respondents and when such being the
case, the Trial Court ought to have considered the said fact into
consideration. If construction is continued it changes the very
nature of the property and also it leads to multiplicity of
proceedings. The respondents herein ought to have waited till
disposal of the appeal which is pending before this Court i.e.
R.F.A.No.1060/2020 and thereafter ought to have taken up the
construction after the result of the appeal which is pending
before this Court. It is nothing but suppressing the truth, the
plaintiffs/respondents have obtained an order of injunction
stating that this Court has refused to grant an order of injunction
and also relief sought is very clear that defendants/appellants
herein became very active and started interfering with the work
of construction including commencement of excavation of the
project work. It has to be noted that in the earlier suit also the
present appellants have sought for the relief of restraining the
respondents herein to put up any construction and the same is
subject matter of the earlier suit and sought relief against the
defendant No.21 and in the present suit, the said defendant
No.21 is also a plaintiff in the suit and when such materials are
available before the Court, even though they dispute the grant
contending that the grant of land an endorsement was given on
Sunday i.e. on 10.8.1975 and the same is also observed in Trial
Court in appreciating the earlier suit. But it is the contention of
the appellants that only they have received endorsement on that
day, but grant order is not on Sunday and unless the appeal
which is pending before the Court is determined, it is nothing but
amounts to sub-judice and the same is held in the judgment of
the Apex Court in the State of Andhra Pradesh and others and in
paragraph No.24 it is held that when an appeal is pending,
decree including findings on issues does not attained its finality,
it amount to res-judice and not res judicata, since the same has
not attained its finality to invoke the principles of res judicata
and it amounts to res subjudice and I have already pointed out
that cause of actions for both the suits are one and the same
and when such being the case, the very approach of the Trial
Court in granting an order of injunction is nothing but capricious
and it amounts to perversity and the same is unreasonable and
ought not to have granted the relief when the appeal was
admitted before this Court is brought to the notice of the Trial
Court and hence, the order impugned is liable to be set aside.
The Trial Court has committed an error in granting an order of
injunction when the appeal is pending, since the cause of action
is not different and the same is similar in both the suits and the
Trial Court ought to have taken note of pendency of the appeal
which is pending before this Court and the very finding of the
Trial Court in the earlier suit was questioned before this Court. I
have already pointed out that the appeal filed before this Court
is a statutory appeal and this Court has to consider both question
of fact and question of law. Hence, the very approach of the Trial
Court is erroneous and it requires interference and as a result,
the application filed before the Trial Court seeking the relief of
temporary injunction in O.S.No.7245/2022 under Order 39 Rule
1 and 2 of CPC is liable to be rejected and hence, I answer the
point as affirmative.
31. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The impugned order passed on I.A.No.1 filed under Order
39 Rule 1 and 2 in O.S.No.7245/2022 is hereby set aside. The
appellants are directed to pursue the appeal R.F.A.No.1060/2020
forthwith.
Sd/-
JUDGE
AP/SN
