Karnataka High Court

Mrs. Gladys D Souza vs Mrs. Queenit Veena Pereira on 22 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                             -1-
                                                          NC: 2023:KHC:42049
                                                       MFA No. 6612 of 2023
                                                   C/W MFA No. 6616 of 2023
                                                       MFA No. 6626 of 2023


                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 22ND DAY OF NOVEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 6612 OF 2023 (CPC)
                                            C/W
                   MISCELLANEOUS FIRST APPEAL NO. 6616 OF 2023(CPC)
                   MISCELLANEOUS FIRST APPEAL NO. 6626 OF 2023(CPC)


                   IN MFA 6612/2023

                   BETWEEN:

                   1.    MRS GLADYS D SOUZA
                         AGED ABOUT 48 YEARS
                         W/O LATE OSWALD D SOUZA

                   2.    MISS SHARAL D SOUZA
                         AGED ABOUT 14 YEARS
                         D/O LATE OSWALD D SOUZA
Digitally signed
by
DHANALAKSHMI       3.    MISS CARAL D SOUZA
MURTHY
Location: High           AGED ABOUT 12 YEARS
Court of
Karnataka
                         D/O LATE OSWALD D SOUZA
                         APPELLANT Nos. 2 & 3 ARE MINORS
                         REPRESENTED BY THEIR MOTHER
                         NATURAL GUARDIAN AND NEXT FRIEND
                         APPELLANT NO.1
                         ALL ARE R/AT HARAL'S JYOTHI NAGAR
                         VAMANJOOR POST, MANGALURU-575028.
                                                               ...APPELLANTS
                   (BY SRI. ABHINAY Y.T., ADVOCATE
                       SRI. RAKESH KINI., ADVOCATE)
                             -2-
                                         NC: 2023:KHC:42049
                                      MFA No. 6612 of 2023
                                  C/W MFA No. 6616 of 2023
                                      MFA No. 6626 of 2023


AND:

1.   MRS QUEENIT VEENA PEREIRA
     AGED ABOUT 45 YEARS
     W/O RAJESH STEPHEN PEREIRA
     H.NO.1-84A, KOLAGIRI TO MANIPAL ROAD
     UPPOOR VILLAGE, KOLAGIRI
     UDUPI TALUK, D.K.-576015.

2.   MR. SHAMEER
     ADULT
     NO.4, DOOR NO.3-71/G24
     FIRST FLOOR, CITY MAX
     VAMANJOOR, THIRUVAIL VILLAGE
     MANGALORE-575028.

3.   MR. IFTHIKAR
     ADULT
     S/O U ABDUL RAHAMAN
     5-243, NEAR CANARA ENGINEERING COLLEGE
     BENJANAPADAVU POST, KALLIGE
     MANGALORE-574219.
                                        ...RESPONDENTS
(BY SRI.M SUDHAKAR PAI., ADVOCATE FOR C/R1:
    NOTICE IS NOT ORDERED TO R2 & R3)


       THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED:24.07.2023 PASSED ON IA
NO.2 IN O.S.NO.62/2023 ON THE FILE OF THE I ADDITIONAL
SENIOR     CIVIL   JUDGE   AND    CJM,   D.K,   MANGALURU,
DISMISSING IA NO.2 FILED U/O.39 RULES 1 AND 2 OF CPC.
                           -3-
                                       NC: 2023:KHC:42049
                                    MFA No. 6612 of 2023
                                C/W MFA No. 6616 of 2023
                                    MFA No. 6626 of 2023


IN MFA 6616/2023

BETWEEN:

1.   MRS GLADYS D'SOUZA
     AGED ABOUT 48 YEARS
     W/O LATE OSWALD D SOUZA

2.   MISS SHARAL D SOUZA
     AGED ABOUT 14 YEARS
     D/O LATE OSWALD D SOUZA

3.   MISS CARAL D SOUZA
     AGED ABOUT 12 YEARS
     D/O LATE OSWALD D SOUZA
     APPELLANT Nos. 2 & 3 ARE MINORS
     REPRESENTED BY THEIR MOTHER
     NATURAL GUARDIAN AND NEXT FRIEND
     APPELLANT NO.1
     ALL ARE R/AT HARAL'S JYOTHI NAGAR
     VAMANJOOR POST, MANGALURU-575028.
                                            ...APPELLANTS
(BY SRI. ABHINAY Y.T., ADVOCATE
    SRI. RAKESH KINI., ADVOCATE)
AND:

1.   MRS QUEENIT VEENA PEREIRA
     AGED ABOUT 45 YEARS
     W/O RAJESH STEPHEN PEREIRA
     H.NO.1-84A, KOLAGIRI TO MANIPAL ROAD
     UPPOOR VILLAGE, KOLAGIRI
     UDUPI TALUK, D.K.-576015.

2.   MR. SHAMEER
     ADULT
     NO.4, DOOR NO.3-71/G24
     FIRST FLOOR, CITY MAX
     VAMANJOOR, THIRUVAIL VILLAGE
     MANGALORE-575028.
                            -4-
                                        NC: 2023:KHC:42049
                                     MFA No. 6612 of 2023
                                 C/W MFA No. 6616 of 2023
                                     MFA No. 6626 of 2023


3.   MR. IFTHIKAR
     ADULT
     S/O U ABDUL RAHAMAN
     5-243, NEAR CANARA ENGINEERING COLLEGE
     BENJANAPADAVU POST, KALLIGE
     MANGALORE-574219.
                                        ...RESPONDENTS
(BY SRI.M SUDHAKAR PAI., ADVOCATE FOR C/R1:
    NOTICE IS NOT ORDERED TO R2 & R3)


      THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED:24.07.2023 PASSED ON IA
NO.1 IN O.S.NO.62/2023 ON THE FILE OF THE I ADDITIONAL
SENIOR    CIVIL   JUDGE   AND    CJM,   D.K,   MANGALURU,
DISMISSING IA NO.1 FILED UNDER ORDER39 RULES 1 AND 2
OF CPC.

IN MFA 6626/2023

BETWEEN:

1.   MRS GLADYS D SOUZA
     AGED ABOUT 48 YEARS
     W/O LATE OSWALD D SOUZA

2.   MISS SHARAL D SOUZA
     AGED ABOUT 14 YEARS
     D/O LATE OSWALD D SOUZA

3.   MISS CARAL D SOUZA
     AGED ABOUT 12 YEARS
     D/O LATE OSWALD D SOUZA
     APPELLANT Nos. 2 & 3 ARE MINORS
     REPRESENTED BY THEIR MOTHER
     NATURAL GUARDIAN AND NEXT FRIEND
     APPELLANT NO.1
                             -5-
                                         NC: 2023:KHC:42049
                                      MFA No. 6612 of 2023
                                  C/W MFA No. 6616 of 2023
                                      MFA No. 6626 of 2023


     ALL ARE R/AT HARAL'S JYOTHI NAGAR
     VAMANJOOR POST, MANGALURU-575028.
                                                ...APPELLANTS
(BY SRI. ABHINAY Y.T., ADVOCATE
    SRI. RAKESH KINI., ADVOCATE)


AND:

1.   MRS QUEENIT VEENA PEREIRA
     AGED ABOUT 45 YEARS
     W/O RAJESH STEPHEN PEREIRA
     H.NO.1-84A, KOLAGIRI TO MANIPAL ROAD
     UPPOOR VILLAGE, KOLAGIRI
     UDUPI TALUK, D.K.-576015.

2.   MR. SHAMEER
     ADULT
     NO.4, DOOR NO.3-71/G24
     FIRST FLOOR, CITY MAX
     VAMANJOOR, THIRUVAIL VILLAGE
     MANGALORE-575028.

3.   MR. IFTHIKAR
     ADULT
     S/O U ABDUL RAHAMAN
     5-243, NEAR CANARA ENGINEERING COLLEGE
     BENJANAPADAVU POST, KALLIGE
     MANGALORE-574219.
                                        ...RESPONDENTS
(BY SRI.M SUDHAKAR PAI., ADVOCATE FOR C/R1:
    NOTICE IS NOT ORDERED TO R2 & R3)


       THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED:24.07.2023 PASSED ON IA
NO.3 IN O.S.NO.62/2023 ON THE FILE OF THE I ADDITIONAL
SENIOR     CIVIL   JUDGE   AND    CJM,   D.K,   MANGALURU,
                             -6-
                                         NC: 2023:KHC:42049
                                      MFA No. 6612 of 2023
                                  C/W MFA No. 6616 of 2023
                                      MFA No. 6626 of 2023


DISMISSING IA NO.3 FILED UNDER ORDER 39 RULES 1 AND 2
OF CPC.

      THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. These appeals have been filed by the plaintiffs under

Order XLIII Rule 1 (r) of the CPC challenging the order

dated 24.07.2023 passed by the I Additional Senior Civil

Judge & CJM, D.K., Mangaluru on I.A.Nos.I to III in

O.S.No.62/2023 whereby the trial Court has dismissed the

said applications filed by the plaintiffs under XXXIX Rule 1

and 2 of CPC..

2. MFA No.6616/2023 is filed challenging the order

passed on I.A.No.I, MFA No.6612/2023 is filed challenging

the order passed on I.A.No.II and MFA No.6626/2023 is

filed challenging the order passed on I.A.No.III.

3. Since the parties in all the appeals are one and the

same and challenging the same impugned order, the

matters are clubbed together and a common judgment is

passed.

NC: 2023:KHC:42049

4. For the sake of the convenience, the parties are

referred to as per their ranking before the Trial Court.

5. The plaintiffs have filed a suit for declaration,

injunction and possession. Along with the plaint, they have

filed I.A.Nos.I to III seeking grant of temporary injunction

against defendant No.1, restraining her or anybody acting

through or under her from selling, mortgaging,

transferring, gifting, settling, exchanging, leasing or

alienating the plaint 'A', 'B', 'C' & 'D' schedule properties

and so also from forcibly dispossessing the plaintiffs from

the said properties, pending disposal of the suit and to

grant an order of mandatory injunction directing defendant

No.1 to return the vehicle described in the 'E' schedule of

the plaint, respectively.

6. After service of summons, the defendants appeared

through their counsel and filed the detailed objections. In

respect of I.A.No.I, they have filed an affidavit stating that

they have admitted the possession of the plaintiffs in 'A'

NC: 2023:KHC:42049

schedule property and they have also filed an affidavit

stating that they will not dispossess the plaintiffs till

disposal of the suit. In respect of other IAs are concerned,

they have filed objections and defended their case. The

trial Court after hearing the parties, has dismissed all the

applications filed by the plaintiffs. Being aggrieved by the

same, the plaintiffs are before this Court in these appeals.

7. Heard the learned counsel for the parties. Perused the

impugned order.

8. In respect of I.A.No.I in MFA No.6616/2023 is

concerned, considering the material available on record,

I am of the opinion that the order passed by the trail Court

on I.A.No.I is required to be modified, directing the

defendants not to alienate the suit schedule properties in

dispute, till disposal of the suit.

9. In respect of prayer in I.A.No.II in MFA No.6612/2023

to restrain the defendants from dispossessing the plaintiffs

from 'A' schedule property in question is concerned, the

NC: 2023:KHC:42049

defendant No.1 has filed an affidavit stating that she will

not dispossess the plaintiffs from 'A' schedule property, till

disposal of the suit. Considering the same, the trial Court

has rightly rejected I.A.No.II and there is no error in

respect of finding given by the trial Court. However, if

there is any apprehension from the defendants, the liberty

may be reserved to the plaintiffs to file a fresh application

under Order XXXIX Rule 1 and 2 of CPC.

10. In respect of I.A.No.III in MFA No.6626/2023 is

concerned, it is admitted that the possession has already

been taken by the defendants in respect of 'E' schedule

property. Therefore, the trial Court has rightly rejected

I.A.No.III.

11. Under these circumstances, I pass the following order:

ORDER

a. MFA No.6616/2023 is allowed in part. The order

dated 24.07.2023 passed by the trail Court on

I.A.No.I is modified. The defendants are restrained

from further alienation and creation of third party

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NC: 2023:KHC:42049

interest in respect of the suit schedule properties, till

disposal of the suit.

b. MFA No.6612/2023 is disposed of. The order passed

by the trial Court on I.A.No.II is hereby confirmed,

subject to condition that in case, if there is any

threat or apprehension to the plaintiffs from the

defendants in respect of dispossession from the 'A'

schedule property, liberty is reserved to the plaintiffs

to file fresh application under Order XXXIX Rule 1

and 2 of CPC. If such an application is filed by the

plaintiffs, the trial Court shall consider the same, in

accordance with law.

c. MFA No.6626/2023 is dismissed. The order passed

by the trial Court on I.A.No.III is hereby confirmed.

d. The trial Court is directed to dispose of the suit as

expeditiously as possible.