Karnataka High Court
Smt Pushpalatha B K vs Sri M D Mahesh on 5 July, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:23083
MFA No. 1432 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.1432 OF 2023 (CPC)
BETWEEN:
SMT. PUSHPALATHA B.K.,
W/O M.D. RAMESH,
AGED ABOUT 34 YEARS,
R/O NO.4057/C, 18TH MAIN ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE, J.P.NAGAR POST,
BANGALORE-560078.
...APPELLANT
(BY SRI YOGESH V. KOTEMATH, ADVOCATE)
AND:
1. SRI M.D. MAHESH,
S/O LATE DODDA GANGADHARA,
Digitally signed
by SHARANYA T AGED ABOUT 38 YEARS.
Location: HIGH
COURT OF 2. SMT. KANAKAMMA,
KARNATAKA
W/O LATE DODDA GANGADHARA,
AGED ABOUT 57 YEARS.
BOTH ARE R/O MUNICIPAL NO.404/10,
18TH 'A' MAIN ROAD,
VENKATESHWARA LAYOUT,
BBMP WARD NO.172,
OLD WARD NO.65,
BANGALORE-560068.
...RESPONDENTS
(BY SRI K.R. SUBHASH, ADVOCATE)
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NC: 2023:KHC:23083
MFA No. 1432 of 2023
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
05.11.2022 PASSED ON IA NO.1 AND 2 IN O.S.NO.5235/2022
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL JUDGE
(CCH-40), BENGALURU CITY, DISMISSING IA NO.1 FILED
UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 OF
CPC, ALLOWING IA NO.2 FILED UNDER ORDER 39 RULE 4 READ
WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission today. Heard the
learned counsel for the appellant and the learned counsel
for the respondents.
2. This appeal is filed challenging the order dated
05.11.2022, passed on I.A.Nos.1 and 2 in
O.S.No.5235/2022, on the file of the XXXIX Additional City
Civil Judge (CCH-40), Bengaluru City, dismissing I.A.No.1
filed by the plaintiff under Order 39 Rules 1 and 2 of CPC
and allowing I.A.No.2 filed by defendant No.2 under Order
39 Rule 4 of CPC and vacating the interim order.
3. It is the contention of the plaintiff that the suit
schedule property came to the share of the plaintiff's
husband by way of partition and later on, the husband of
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MFA No. 1432 of 2023
the plaintiff gifted the property in favour of the plaintiff and
there are tenants in the ground floor that is meant for
commercial purpose and the plaintiff is staying in the II
Floor and there is a tenant in the I Floor. The defendants
are interfering with the possession of the plaintiff and
trying to collect the rents from the tenants of the plaintiff
and hence the plaintiff sought for an order to restrain the
defendants from interfering with the possession of the
plaintiff.
4. The defendants appeared and filed the written
statement and also objections to the I.A. and so also filed
an application under Order 39 Rule 4 of CPC to vacate the
premises. The defendants mainly relied upon the
document of consent deed contending that the consent
deed was executed by the very plaintiff's husband on
20.09.2021, wherein it is categorically stated that they are
fetching rent of Rs.43,000/- per month from both
commercial and residential premises and the mother was
allowed to collect the rent and mother also agreed to pay
Rs.20,000/- out of 43,000/- to the plaintiff's husband. The
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MFA No. 1432 of 2023
Trial Court taking note of the document of consent deed
comes to the conclusion that the plaintiff has not made out
any prima facie case to grant an order of injunction and
vacated the injunction earlier granted by allowing the
application filed under Order 39 Rule 4 of CPC and hence
the present appeal is filed before this Court.
5. The learned counsel for the appellant would
vehemently contend that now the mother is staying in the
premises belonging to the husband of the plaintiff and also
ready to take care of the mother. The learned counsel
submits that they have disputed the document of consent
deed and denied the execution of the said document.
However, the Trial Court committed an error in relying
upon the said document.
6. The learned counsel for the respondents placed
the document of consent deed before this Court, wherein
there is a recital that the said building which was
transferred in favour of the plaintiff's husband, fetch rent of
Rs.43,000/- and the mother agreed to pay Rs.20,000/- out
of Rs.43,000/- to the husband of the plaintiff. The Trial
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MFA No. 1432 of 2023
Court while rejecting the application filed under Order 39
Rules 1 and 2 of CPC, in detail discussed that not only the
husband of the plaintiff executed the consent deed, even
the other son, who is defendant No.1 also agreed to collect
the rent by the mother in terms of document dated
05.10.2021 and the same is also discussed in paragraph
No.11 and hence comes to the conclusion that no prima
facie case is made out.
7. Having heard the learned counsel for the
appellant and the learned counsel for the respondents and
also on perusal of the material available on record, it is not
in dispute that the suit schedule property was allotted to
the share of the plaintiff's husband in terms of the partition
deed dated 20.09.2021. The consent deed dated
20.09.2021 is executed by the husband of the plaintiff,
wherein a provision is made to collect the rent by the
mother. The learned counsel for the appellant contend that
the said document is denied and the same is a matter of
trial. Both the document of partition deed and consent
deed came into existence on the very same day. Though
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MFA No. 1432 of 2023
the learned counsel for the appellant denies the document
of consent deed, it bears the signature of the husband of
the plaintiff. It is important to note that the husband of the
plaintiff executed the gift deed in favour of the plaintiff on
03.03.2022, within a span of six months and it appears
that then the dispute between the son and the mother
started. The Trial Court considered not only the consent
deed executed by the husband of the plaintiff, but the
document dated 05.10.2021 by other son Sri M.D. Mahesh
by which her two sons have agreed that defendant No.2
shall collect the advance amount and rent from the tenants
in occupation of the premises which are allotted to them,
for her maintenance. Admittedly, the mother is living
separately and not living along with defendant No.1 also. A
provision is made under the consent deed that the mother
shall collect the rent and out of Rs.43,000/- to pay
Rs.20,000/- in favour of the plaintiff's husband and
defendant No.2 also to comply with the conditions
mentioned in the document of consent deed. The learned
counsel for the respondents submits that the mother also
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MFA No. 1432 of 2023
agrees to abide by the recitals of the document of consent
deed. When such being the material on record, I do not
find any error committed by the Trial Court in dismissing
the application filed under Order 39 Rules 1 and 2 of CPC.
Hence, there is no merit in the appeal to set aside the
order of the Trial Court.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed. The observations made by
this Court shall not influence the Trial Court while
considering the matter on merits.
Sd/-
JUDGE
MD
