Karnataka High Court
Chandrashekhar S/O Gurulingappa ... vs Dharmanagouda S/O Bheemanagouda ... on 16 May, 2023
Bench: Sachin Shankar Byssmj
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WP No. 103138 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 103138 OF 2023 (GM-CPC)
BETWEEN:
CHANDRASHEKHAR,
S/O. GURULINGAPPA MAYAKAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: SHINGANAHALLI VILLAGE,
NEAR BASAVESHWAR TEMPLE,
TQ AND DIST: DHARWAD.
REPRESENTED BY HIS SPECIAL POWER OF ATTORNEY
HOLDER, BASAVARAJ RAMAPPA MANGOJI,
AGE: 71 YEARS, OCC: RETIRED,
R/O: SHINGANAHALLI VILLAGE,
TQ AND DIST: DHARWAD-580 011.
...PETITIONER
(BY SRI S.S. BETURMATH, ADVOCATE)
AND:
Digitally signed by
CHANDRASHEKAR
1. DHARMANAGOUDA,
LAXMAN
CHANDRASHEKAR KATTIMANI
LAXMAN
KATTIMANI Location:
DHARWAD
Date: 2023.05.18
17:47:46 -0700
S/O. BHEEMANAGOUDA PATIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD 580011.
2. SMT. SUJATHA W/O. DHARMANAGOUDA PATIL,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
3. MANJUNATH S/O. DHARMANAGOUDA PATIL,
AGE: 31 YEARS, OCC: NIL,
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WP No. 103138 of 2023
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
4. LAXMI D/O. DHARMANAGOUDA PATIL,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
5. ANANDRAO, S/O. DHARMANAGOUDA PATIL,
AGE: 26 YEARS, OCC: STUDENT,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
6. DEEPA D/O. DHARAMANAGOUDA PATIL,
AGE: 24 YEARS, OCC: STUDENT,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
7. SHOBHA D/O. DHARMANAGOUDA PATIL,
AGE: 22 YEARS, OCC: STUDENT,
R/O: SHINGANAHALLI VILLAGE,
NEAR MASUTI, TQ. AND DIST: DHARWAD-580011.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI OR ORDER OR DIRECTION TO QUASH THE
IMPUGNED ORDER DATED 19/04/2023 PASSED ON I.A.NO.2 IN
R.A.NO.11/2023 BY THE 2ND ADDL. SENIOR CIVIL JUDGE AND
JMFC, DHARWAD VIDE ANNEXURE-G AND CONSEQUENTLY
ALLOW THE I.A. NO.2 FILED UNDER ORDER 39 RULE 1 AND 2(A)
CPC IN RA. NO.33/2023 PENDING ON THE FILE OF 2ND ADDL.
SENIOR CIVIL JUDGE AND JMFC DHARWAD VIDE ANNEXURE-F
AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 103138 of 2023
ORDER
The captioned writ petition is filed by plaintiff feeling
aggrieved by the order passed by the first appellate Court
on I.A.No.2 filed under order 39 Rule 1 and 2(A) read with
Section 151 of CPC.
2. The plaintiff has filed a suit for specific
performance alleging that the defendants have voluntarily
executed a registered agreement of sale on 16.06.2004 for
a sale consideration of Rs.2,75,000/- and has paid
Rs.2,70,000/- as earnest money. Defendants have
contested the suit and claimed that they had no intention to
sell the suit property and the transaction is a loan
transaction and the said agreement is executed by way of
collateral security. The trial Court after full-fledged trial
dismissed the suit of the plaintiff.
3. Feeling aggrieved by the Judgment and Decree of
the trial Court, plaintiff preferred an appeal before the lower
appellate Court.
WP No. 103138 of 2023
4. Pending consideration of appeal, plaintiff filed an
application seeking injunction. The said application is
rejected by the lower appellate Court. Plaintiff is before this
Court assailing the order of the lower appellate Court
passed on I.A.No.2 filed under Order 39 Rule 1 and 2 read
with Section 151 of CPC. On examining of the order under
challenge this Court would find that plaintiff had filed a
similar application seeking injunction against the
defendants. The trial Court having examined the recitals in
the said agreement and other prima facie materials rejected
the application. Plaintiff preferred an appeal in
M.A.No.42/2014. The trial Court however proceeded on
merits and now the suit is dismissed and appeal is pending.
5. Relief of injunction is a discretionary relief and
Courts have to examine the equities after looking into prima
facie materials. The plaintiff's suit for specific performance
is dismissed. The suit document, that is suit agreement
does not indicate that the possession was delivered. The
trial Court at first instance and the appellate Court were
WP No. 103138 of 2023
justified in not granting injunction against the true owner in
the absence of evidence indicating that the possession was
delivered pursuant to execution of agreement to sell.
Therefore, I am not inclined to interfere with the impugned
order. Hence, writ petition is dismissed.
Sd/-
JUDGE
CKK
