Karnataka High Court
Sri. Venugopal S vs Manjunath M on 22 May, 2023
Bench: H.P.Sandesh
-1-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2910 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 2911 OF 2023 (CPC)
IN MFA NO.2910 OF 2023:
BETWEEN:
1. SRI. VENUGOPAL S.,
S/O P. SRINIVAS
AGED ABOUT 26 YEARS,
RESIDING AT NO.93,
1ST BLOCK, 1ST CROSS,
ASHWATHNAGAR,
RMV EXTENSION,
BENGALURU-560094.
2. SRI. KEERTHANA KSHYAP H.R.
Digitally signed by
SHARANYA T S/O RAGHUNATH H.N
Location: HIGH AGED ABOUT 23 YEARS,
COURT OF
KARNATAKA RESIDIG AT NO.13/1,
6TH CROSS, NAGASHETTY HALLI,
SANJAYNAGAR POST,
NEAR PAVITHRA SCHOOL,
RMV EXTENSION,
BENGALURU-560094.
3. SRI.ANIRUDHA N
S/O NAGABHUSHAN
AGED ABOUT 26 YEARS,
RESIDIG AT NO.155,
1ST CROSS, NAGASHETTYHALLI,
SANJAYNAGAR POST,
-2-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
NEAR NAGASHETTY HALLI BUS STOP,
RMV EXTENSION,
BENGALURU-560094.
...APPELLANTS
(BY SRI. S.M.CHANDRASHEKAR, SENIOR COUNSEL A/W.
SRI CHANDRASHEKAR H.B., ADVOCATE)
AND:
1. MANJUNATH M.,
S/O LATE MUDDAIAH K.P @
ANNAIAHAPPA
AGED ABOUT 55 YEARS,
R/AT NO.85, GROUND FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
2. SMT. CHIKKATHAYAMMA
W/O LATE MADDAIAH K.P. @
ANNAIAHAPPA
AGED ABOUT 79 YEARS,
R/AT NO.85, FIRST FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
3. SRI.RAMESH
S/O LATE MADDAIAH K.P. @
ANNAIAHAPPA
AGED ABOUT 63 YEARS,
R/AT NO.1, 4TH CROSS,
VIDHANA SOUDHA LAYOUT MAIN ROAD,
PAPAREDDYPALYA,
BENGALURU-560072.
4. SRI. SURESH
S/O LATE K.P.MADDAIAH @
ANNAIAHAPPA
AGED ABOUT 61 YEARS,
R/AT NO.85, SECOND FLOOR,
-3-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
5. SMT. PREMA
W/O LATE SUDHAKAR
AGED ABOUT 50 YEARS,
6. KUM. RASHMI
D/O LATE SUDHAKAR
AGED ABOUT 31 YEARS,
7. SRI. ABHILASH
S/O LATE SUDHAKAR
AGED ABOUT 29 YEARS,
RESPONDENTS NO.5 TO 7 ARE
R/AT NO.38, 3RD CROSS,
GURURAJA LAYOUT,
NEAR DEVEGOWDA PETROL BUNK,
B.S.K. III STAGE,
BENGALURU-560010.
8. SRI. SRINIVAS
S/O MADDAIAH K.P @ ANNAIAHPPA
AGED ABOUT 53 YEARS,
R/AT NO.85, FIRST FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BEGALURU-560010
9. SMT. MAMATHA
W/O SHIVASHANKAR
AGED ABOUT 45 YEARS,
R/AT NO.11, NEAR MARAMMA TEMPLE,
BANASHANKARI III STAGE,
BENGALURU-560085.
10. SMT. SUMALA
W/O RAGHU
AGED ABOUT 48 YEARS,
R/A NO.85, FIRST FLOOR,
-4-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010
11. SMT. UMADEVI J @ UMA
W/O SRI. RAMESH
AGED ABOUT 57 YEARS,
R/AT NO.1, 4TH CROSS,
VIDHANASOUDHA LAYOUT
MAIN ROAD, PAPAREDDYPALYA,
BENGALURU-560072.
12 H.C.ANJAPPA
S/O CHINNAPPA
AGED ABOUT 65 YEARS
R/AT SREE LAKSHMIVENKATESHWARA NILAYA
ANJANI BADAVANE, CHINTAMANI TOWN
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT-563125.
...RESPONDENTS
(BY SRI. R.CHANDRAKUMAR, ADVOCATE FOR C/R1;
SRI L.CHANDRASHEKAR, ADVOCATE FOR R2 TO R12)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 21.04.2023 PASSED ON
I.A.NO.VI IN O.S.NO.2421/2023 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
REJECTING I.A.NO.VI FILED UNDER ORDER 39 RULE 4 OF CPC.
IN MFA NO.2911 OF 2023:
BETWEEN:
1. SRI VENUGOPAL S.
S/O P. SRINIVAS
AGED ABOUT 26 YEARS,
RESIDING AT NO.93,
1ST BLOCK 1ST CROSS,
ASHWATHNAGAR,
RMV EXTENSION,
BENGALURU-560094.
-5-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
2. SRI.KEERTHAN KASHYAP H.R.
S/O RAGHUNATH H.N.
AGED ABOUT 23 YEARS,
RESIDING AT NO.13/1,
6TH CROSS, NAGASHETTYHALLI,
SANJAYNAGAR POST,
NEAR PAVITHRA SCHOOL,
RMV EXTENSION,
BENGALURU-560094.
3. SRI. ANIRUDHA N.,
S/O NAGABHUSHAN
AGED ABOUT 26 YEARS,
RESIDING AT NO.155,
1ST CROSS, NAGASHETTYHALLI,
SANJAYNAGAR POST,
NEAR NAGASHETTYHALLI BUS STOP,
RMV EXTENSION,
BENGALURU-560094.
...APPELLANTS
(BY SRI S.M.CHANDRASHEKAR, SENIOR COUNSEL A/W.
SRI CHANDRASHEKAR H.B., ADVOCATE)
AND:
1. MANJUNATH M.,
S/O LATE MADDIAH K.P @
ANNAIAHAPPA
AGED ABOUT 55 YEARS,
R/AT NO.85, GROUND FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
2. SMT. CHIKKATHAYAMMA
W/O LATE K.P.MADDIAH @
ANNAIAHAPPA,
AGED ABOUT 79 YEARS,
R/AT NO.85, FIRST FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
-6-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
RAJAJINAGAR,
BENGALURU-560010.
3. SRI.RAMESH
S/O LATE K.P.MADDIAH @
ANNAIAHAPPA,
AGED ABOUT 63 YEARS,
R/AT NO.1, 4TH CROSS,
VIDHANASOUDHA LYAOUT
MAIN ROAD, PAPAREDDYPALYA,
BENGALURU-560072.
4. SRI.SURESH
S/O LATE. K.P.MADDAIAH @
ANNAIAHAPPA,
AGED ABOUT 61 YARS,
R/AT NO.85, SECOND FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
5. SMT. PREMA
W/O LATE. SUDHAKAR
AGED ABOUT 50 YEARS,
6. KUM. RASHMI
D/O LATE SUDHAKAR
AGED ABOUT 31 YEARS,
7. SRI. ABHILASH,
S/O LATE SUDHAKAR
AGED ABOUT 29 YEARS,
RESPONDENTS NO.5 TO 7 ARE
R/AT NO.38, 3RD CROSS,
GURURAJA LAYOUT,
NEAR DEVEGOWDA PETROL BUNK,
B.S.K. III STAGE,
BENGALURU-560010.
8. SRI. SRINIVAS
S/O MADDAIAH K.P. @
-7-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
ANNAIAHAPPA
AGED ABOUT 53 YEARS,
R/AT NO.85, FIRST FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
9. SMT. MAMATHA
W/O SHIVASHANKAR
AGED ABOUT 45 YARS,
R/AT NO.11,
NEAR MARAMMA TEMPLE,
BANASHANKARI III STAGE,
BENGALURU-560085.
10. SMT. SUMALA W/O RAGHU
AGED ABOUT 48 YEARS,
R/AT NO.85, FIRST FLOOR,
13TH CROSS, 1ST 'K' BLOCK,
RAJAJINAGAR,
BENGALURU-560010.
11. SMT. UMADEVE J @ UMA
W/O SRI RAMESH
AGED ABOUT 57 YEARS,
R/AT NO.1, 4TH CROSS,
VIDHANASOUDHA LAYOUT MAIN ROAD
PAPEREDDYPALYA,
BENGALURU-560072.
12 H.C.ANJAPPA
S/O CHINNAPPA
AGED ABOUT 65 YEARS
R/AT SREE LAKSHMIVENKATESHWARA
NILAYA, ANJANI BADAVANE,
CHINTAMANI TOWN
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT-563125.
...RESPONDENTS
(BY SRI. R.CHANDRAKUMAR, ADVOCATE C/R1;
SRI L.CHANDRASHEKAR, ADVOCATE FOR R2 TO R12)
-8-
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 21.04.2023 PASSED ON
I.A.NO.IV IN O.S.NO.2421/2023 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
ALLOWING THE I.A.NO.IV FILED UNDER ORDER 39 RULE 1 AND
2 OF CPC.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are listed for admission. Heard the
learned counsel appearing for the appellants and the learned
counsel appearing for caveator/respondent No.1 and the
learned counsel appearing for respondent Nos.2 to 12 in both
the appeals.
2. These two appeals are filed under Order 43 rule
1(r) read with Section 151 of CPC., against the order dated
21.04.2023 passed on I.A.No.IV (MFA No.2911/2023) and
I.A.No.VI (MFA No.2910.2023) in O.S.No.2421/2023 on the file
of the XXXIX Additional City Civil and Sessions Judge,
Bengaluru, rejecting I.A.No.VI filed under Order XXXIX Rule 4
of CPC and allowing I.A.No.IV filed under Order XXXIX Rule 1
and 2 of CPC, respectively.
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of the parties before
the Trial Court is that the plaintiff in O.S.No.2421/2023 has
filed a suit for partition claiming 1/8th share of the suit schedule
properties and inter-alia sought for an order of temporary
injunction against defendant Nos.11 to 13 or any person
claiming through the said defendants from altering the nature
of the plaint schedule item No.2 property in any manner
whatsoever pending disposal of the suit, the same is numbered
as I.A.No.IV. I.A.No.VI is filed by defendant Nos.11 to 13,
wherein, they prayed the Court to vacate the ex-parte order of
status-quo dated 11.04.2023 in respect of item No.2 of the suit
schedule property.
5. It is the contention of the plaintiff in the suit as well
as in the application filed for the relief of temporary injunction
invoking under Order XXXIX Rule 1 and 2 of CPC that
defendant No.1, who is the mother of defendant Nos.2, 3, 7, 8,
9 and plaintiff, is doing management of the said joint family.
- 10 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
The defendant No.1 representing as Manager acquired the
plaint schedule item Nos.1 and 2 properties under the
registered Partition Deed dated 17.03.2021. All the family
members are having a share in the suit schedule properties and
in view of leasing out the property by defendant No.1 at the
instance of defendant No.7, who is also one of the sons of
defendant No.1 are mis-managing the property and causing
loss to the plaintiff and there was no any partition in respect of
the suit schedule properties by metes and bounds. It is also
the contention of the plaintiff that defendant Nos.1 to 10
colluding with each other have allowed defendant Nos.11 to 13
to put up construction in the plaint schedule item No.2 property
and when the plaintiff questioned the illegal activity, the said
defendants threatened him of dire consequences. It is also
contended that if the said item No.2 property is altered,
modified by constructing permanent structures therein without
there being partition between the members of the joint family,
the plaintiff would put to irreparable loss and injury. Hence,
there is a prima facie case in favour of the plaintiff and there is
a balance of convenience in his favour.
- 11 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
6. Defendant Nos.11 to 13 entered appearance and
filed the written statement and prayed to vacate the ex-parte
order of status quo granted by the Trial Court. It is contended
that they have taken up the construction in terms of the lease
and they are the bonafide lessee/tenants in possession of the
plaint schedule item No.2 property and they are putting up
construction in order to running a restaurant titled as "M/s.
Kakala Kairuchi" under agreement of lease and the said
defendants have taken the estimate from one M/s. Dhamani
Interiors in order to carry out certain structural alterations and
modifications in the said item No.2 property, which is necessary
for running a Hotel and the said company has prepared
estimation in a sum of Rs.45,88,050/- and that the defendant
Nos.11 to 13 have paid Rs.21,45,000/- on different dates to the
said company for carrying the said civil and interior work, for
which Mr.Naveen N., has obtained loan to an extent of Rs.30
Lakhs from HDFC Bank and that the defendants No.11 to 13
are paying Rs.65,000/- as EMI on every month through the
account of the said Mr.Naveen N for the last six months. The
said Mr.Naveen N., is a necessary party to the suit. It is also
contended that defendant No.1 being a kartha of the joint
- 12 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
family along with Sri Krishna has entered into an Agreement of
Lease dated 01.01.2023 with defendant Nos.11 to 13 by which
defendant Nos.11 to 13 are tenants in item No.2 property on
monthly rent of Rs.1,10,000/- for a period of five years and
pursuant to the said lease agreement, they have paid a sum of
Rs.7 Lakhs to obtain franchisee from one M/s. Kakala Kairuchi.
It is also contended that they have obtained hand loan to an
extent of Rs.15 lakhs from their family friends for putting up
interiors and fixtures and for internal development of item No.2
property and also dug up a borewell therein by incurring
expenses of Rs.1,79,540/- and they have also paid Rs.45,571/-
to one M/s.Shreya Enterprises for purchasing certain materials
for civil works and that they are bonafide tenants unaware of
the dispute among the family members of the lessors. The said
defendants contends that, they have already invested more
than Rs.50 Lakhs in developing and modifying item No.2
property which was a vacant site to run restaurant and the said
construction has almost completed and at this stage, they are
restrained from completion of the structure and carrying their
business of restaurant. Hence, prayed this Court to vacate the
interim order granted by the Trial Court.
- 13 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
7. The Trial Court having considered the pleadings and
the material available on record answered point No.1 as
affirmative and came to the conclusion that the plaintiff has
made out a prima facie case and the balance of convenience is
in favour of the plaintiff. If an interim order is not granted, the
plaintiff would be put to irreparable loss and answered the point
No.4; if ex-prate order of status quo is not liable to be vacated
and allowed I.A.No.IV filed under Order XXXIX Rule 1 and 2 of
CPC and rejected the application filed by the defendants, which
is numbered as I.A.No.VI. Hence, these two appeals are filed
by defendant Nos.11 to 13.
8. The main contention of the learned counsel
appearing for the appellants before this Court is that the Trial
Court failed to take note of the fact that there was a lease
agreement executed by the mother, who is the kartha of the
family and also failed to take note of the fact that in pursuance
of the lease agreement, the defendants have invested the
money and put up the structure and structure is in completing
stage and intend to inaugurate the Hotel on 31.05.2023. In
view of granting of an Interim order restraining the appellants
herein amounts to infringing the right of the appellants since
- 14 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
they have invested the money and also agreed to pay huge
rent and also paid the rent from the date of agreement. The
learned counsel also would submit that the injunction cannot be
granted under Section 41(h) of the Specific Relief Act, when the
same can be met in terms of money. The learned counsel also
would submit that when the relief is sought under Order XXXIX
Rule 1 and 2 of CPC, the Court has to take note of the equities
and the essential ingredients also to be taken note of by
granting an interim order. When the investment is made and
while entering into an agreement of lease there was no any
dispute and also the appellants have not expected these
litigations while entering into an agreement of lease. Hence,
the very granting of an interim order restraining the defendants
from putting up construction and commencing the business in
the premises amounts to prejudice the rights of the appellants.
Hence, this Court has to set aside the order passed by the Trial
Court and the appellants may be permitted to run the business
since they have already invested the money.
9. The learned counsel also would submit that even
the appellants are ready to deposit the entire amount before
the Trial Court and the issue with regard to the admissibility of
- 15 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
document viz., lease agreement cannot be decided by
considering the interim application and the same is with regard
to the admissibility of document while conducting the trial.
Hence, this Court has to interfere and set aside the order
passed by the Trial Court.
10. Learned counsel appearing for the appellants in
support of his arguments, he relied upon the judgment of the
Apex Court in the case of Mandali Ranganna v. T.
Ramachandra reported in AIR 2008 SC 2291, wherein, the
Apex Court held that while considering an application for grant
of injunction, the Court will not only take into consideration the
basic elements in relation thereto, viz, existence of a prima
facie case, balance of convenience and irreparable injury, it
must also take into consideration the conduct of the parties.
Grant of injunction is an equitable relief. A person who had kept
quiet for a long time and allowed an-other to deal with the
properties exclusively, ordinarily would not be entitled to an
order of injunction. The Court will not interfere only because
the property is a very valuable one. The learned counsel also
brought to the notice of this Court that while granting the relief
of temporary injunction, the Court has to assess the material
- 16 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
on record and the same has not been assessed since they have
invested the money and started construction and about the
start the Hotel.
11. The learned counsel also relied upon the order
passed by this Court in Writ Petition No.943/2019 (GM-
CPC), wherein, this Court with regard to granting of injunction
order taken note of the material on record and also taken note
of the fact that the plaintiff is not in possession of the 'B'
schedule property as on the date of filing of the suit. If that is
so, the very application filed for temporary injunction
restraining the defendants from constructing any house or
building in the 'B' schedule property is not maintainable and
taken note of the principles laid down in the judgment and also
taken note of the affidavit filed before the Court, having
invested the huge amount towards construction and substantial
work of construction has already been done.
12. Learned counsel also relied upon the judgment of
the Apex Court in the case of Developer Group India Pvt.
Ltd., v. Surinder Singh Marwah and Ors. reported in AIR
2023 SC 679, wherein, the Apex Court having considered the
- 17 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
material on record taken note of the fact that when the
commercial project development and management agreement
with consortium of six land-owing companies for exclusive
rights over 11 properties extending to 115 acres of land in real
estate project, when the dispute was with regard to the
investors of around only Rs.31 Crores entire project cannot be
stalled and blanket injunction restraining alienation of all
properties cannot be granted. It is also observed with regard to
safeguard the interest of the investors, third party rights should
not be created on properties on land, when taken note of the
investment made by the investors.
13. The learned counsel relying upon these judgments
would vehemently contend that while granting an interim order,
the Court has to take note of the material available on record
and also the investment made by the parties and the same can
be compensated in terms of money since the appellants have
agreed to pay the huge rent of Rs.1,10,000/-. Apart from any
condition, this Court is going to impose conditions subject to
the result of the suit and the same shall be complied with. The
appellants have also claimed that they are not going to claim
any equity for having completed the construction and this Court
- 18 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
while granting the earlier order made it clear that not to claim
any equity.
14. Per contra, the learned counsel appearing for the
plaintiff/respondent No.1 would vehemently contend that the
premises which leased out is measuring 1396.50 sq.ft in
respect of item No.2 of the schedule property of the plaintiff
and family members. The learned counsel would also submit
that in respect of the western portion agreed to pay a rent of
Rs.70,000/- but in respect of eastern portion belongs to the
plaintiff and his family members only Rs.40,000/-. There is a
difference of rent fixed in the lease agreement which affects the
rights of the parties. Though the plaintiff claims 1/8th share in
respect of item No.2 of the schedule property and also other
items of the suit schedule property and the first defendant, who
is the mother of the plaintiff in collusion with defendant No.7,
who is also another son of defendant No.1 with an intention to
deceive the plaintiff they entered into an agreement of lease.
The counsel would submit that the said lease agreement is not
registered and the same is hit by Sections 17(d) and Section 49
of the Registration Act and if the construction is allowed, it
would lead to multiplicity of proceedings. The counsel also
- 19 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
would vehemently contend that, when the document itself is
not admissible in evidence, under the said document, the
appellants cannot claim any right. Hence, the same was taken
note by the Trial Court and the Trial Court considering the
prima facie material available on record, the balance of
convenience and irreparable loss, granted the relief by allowing
the application in I.A.No.IV filed under Order 39, Rule 1 and 2
of CPC and rightly rejected the application filed by the
appellants in I.A.No.VI filed under Order 39, Rule 4 of CPC for
vacating the interim order. Hence, it does not require any
interference.
15. Learned counsel appearing for the respondent
Nos.2 to 12 i.e., the mother and other members of the family
would vehemently contend that the relief is sought only in
respect of 1/8th share and if injunction order is granted and the
same is continued, it restricts getting income to the family and
if the plaintiff succeeds in the suit, he may get only 1/8th share
and hence, there cannot be any order of injunction allowing the
appellants herein to run the hotel. Hence, the plaintiff has not
made out any ground to grant the interim order invoking Order
39, Rule 1 and 2 of CPC.
- 20 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
16. Having heard the learned counsel for the appellants
and learned counsel for the respondents and considering the
material available on record, there is no dispute with regard to
the fact that plaintiff has sought for the relief of partition
claiming 1/8th share in respect of all the suit schedule
properties. The dispute is in respect of item No.2 of the suit
schedule properties i.e., in respect of eastern portion, there is
no dispute in respect of western portion of the property which
belongs to uncle of the plaintiff.
17. Learned counsel for the respondent No.1-plaintiff
would vehemently contend that, in respect of western portion
of item No.2 of the property, the rent is fixed as Rs.70,000/-
per month and in respect of eastern portion, the rent is fixed
only at Rs.40,000/- per month. No doubt, there is a difference
in the amount of rent fixed, learned counsel appearing for the
appellants would submit that rent of Rs.70,000/- per month is
fixed based on the amenities provided in respect of the western
portion of item No.2 of the property. However, the counsel
also would submit that, if the Court directs to deposit whatever
the amount it deems fit, the appellants are ready to deposit the
same, subject to result of the suit and if the plaintiff succeeds
- 21 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
in fixing the same rate of rent, the same shall be in accordance
with their entitlement. When such submission is made, it is
appropriate to direct the appellants herein to deposit the rent of
Rs.70,000/- per month as agreed in respect of western portion
of the property and the measurement is similar and regarding
amenities is concerned, the same shall be determined by the
Trial Court during trial. The total rent fixed in respect of
eastern portion at Rs.70,000/- is subject to the finding of the
Trial Court.
18. In view of the submission of the learned counsel for
the appellants, the rate of rent comes to Rs.70,000/- per
month and in respect of eastern portion, the rent is considered
as Rs.70,000/- and the same is subject to the result of the suit,
since the contention is that there is variance with regard to the
amenities available to the said premises. It is also important to
note that, in terms of the lease agreement executed by the
mother, already the appellants have put up construction and
both the counsels not dispute the fact that the appellants have
already started construction work and have fixed the date for
inauguration of the hotel as 31.05.2023.
- 22 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
19. When such being the material on record, while
granting the relief of injunction, the Court has to take note of
the same and photographs are also produced before the Trial
Court to prove the fact that construction is put up, in pursuance
of the lease agreement entered into in the month of January,
2023 and thereafter, the appellants have invested the money
for construction and the same is not considered by the Trial
Court.
20. It is important to note that suit is filed for the relief
of partition. It is also relevant to note that, construction of
hotel generates income for the family and it is nothing but an
improvement and not a mismanagement and it will not cause
any prejudice to the plaintiff, if he succeeds in the suit for
getting 1/8th share in the suit schedule property in respect of
item No.2 of the suit schedule properties also.
21. The other apprehension of the respondents is that,
if the construction is completed and hotel is established, it
would lead to multiplicity of proceedings. This Court, while
granting the interim order itself made it clear that the
appellants cannot claim any equity and the learned counsel
- 23 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
appearing for the appellants also not disputes the said fact.
When such being the material on record, the Trial Court failed
to take note of the fact that, when an investment is made in
pursuance of the lease agreement, ought not to have granted
the relief of temporary injunction restraining the appellants
from establishing the hotel in view of the principles laid down in
the judgment referred by the learned counsel for the appellants
referred (supra) and also the orders passed in
W.P.No.205437/2014 dated 05.04.2017 and
W.P.No.202769/2014 dated 16.04.2014 and also the
judgment of the Apex Court in THE BIHAR EASTERN
GANGETIC FISHERMEN CO-OPERATIVE SOCIETY LTD. VS.
SIPAHI SINGH AND OTHERS reported in (1977) 4 SCC
145.
22. I have already pointed out that the suit is filed for
the relief of partition claiming 1/8th share in respect of suit
schedule properties, including item No.2 and establishment of
hotel is an improvement and not for causing any damage and
this Court also while granting the interim order made it clear
that the appellants cannot claim any equity. With regard to
admissibility of the document is concerned, the same can be
- 24 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
considered by the Trial Court at the time of admitting the
document and not at this stage while considering the
application filed under Order 39, Rule 1 and 2 of CPC. Hence,
the order passed by the Trial Court in I.A.No.IV dated
21.04.2023 granting the relief of temporary injunction
restraining the appellants herein from putting up construction
for establishing the hotel is set aside and consequently,
I.A.No.IV is allowed, in view of the observations made above.
23. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeals are disposed of.
(ii) The order passed by the Trial Court in
I.A.No.IV dated 21.04.2023 granting the
relief of temporary injunction restraining the
appellants herein from putting up
construction is hereby set aside and
consequently, I.A.No.IV is allowed.
(iii) On deposit of amount of Rs.70,000/- by the
appellants, the Trial Court is directed to keep
the entire amount in recurring deposit and
out of Rs.70,000/-, the dispute is only with
- 25 -
MFA No. 2910 of 2023
C/W MFA No. 2911 of 2023
regard to Rs.30,000/- and the same shall be
payable on determining the issue of rate of
rent i.e., whether the parties are entitled for
Rs.40,000/- or Rs.70,000/-.
(iv) The Trial Court is directed to dispose of the
matters within one year from today and no
further time would be granted.
(v) Both the appellants and the respondents and
their respective counsels are directed to
assist the Trial Court in disposal of the case
within the stipulated time without seeking any
unnecessary adjournment.
(vi) The office is directed to communicate this
order to Trial Court, forthwith.
Sd/-
JUDGE
cp*/ST
