Karnataka High Court
Smt. Sarojini Shedthi vs Mrs. Rathavathi Heggadthi on 27 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:42693
WP No. 7628 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 7628 OF 2021 (GM-CPC)
BETWEEN:
1. SMT. SAROJINI SHEDTHI,
D/O LATE SAMPA SHEDTHI,
AGED ABOUT 60 YEARS,
2. MRS. SAPNA R SAMANI,
D/O MRS. SAROJINI SHEDTHI,
AGED ABOUT 33 YEARS,
NOS.(1) & (2) ARE
R/AT BAPPANADUGUTHU,
BAPPANADU VILLAGE,
MANGALURU TALUK,
D.K.DISTRICT - 574 154.
...PETITIONERS
Digitally signed
by A K (BY SRI. JAYAKARA SHETTY H., ADVOCATE)
CHANDRIKA
Location: High
Court Of
Karnataka AND:
1. MRS. RATHAVATHI HEGGADTHI,
W/O LATE SHAMBU SHETTY,
AGED ABOUT 88 YEARS,
R/A FLAT NO.101,
LANDMARK BIANCA,
CONVENT ROAD,
BRAMHAGIRI, UDUPI - 576 101.
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WP No. 7628 of 2021
2. MRS. USHA D SHETTY,
D/O LATE SHAMBU SHETTY,
W/O LATE DIVAKAR SHETTY,
AGED ABOUT 68 YEARS,
R/A FLAT NO.101,
LANDMARK BIANCA,
CONVENT ROAD, BRAMHAGIRI,
UDUPI - 576 101.
3. MRS. ASHA R SHETTY,
D/O LATE SHAMBU SHETTY,
W/O MR.RATHNAKAR SHETTY,
AGED ABOUT 66 YEARS,
R/A SHIVAKRIPA,
OPP. BUNTS HOSTEL ROAD,
KARKADA COMPOUND,
UDUPI - 576 101.
4. MRS. SHOBHA S BHANDARY,
D/O LATE SHAMBU SHETTY,
AGED ABOUT 62 YEARS,
R/A DOOR NO.2-160B,
SHIVANUGRAHA,
MANCHI MOOLLASTHANA ROAD,
KUKKIKATTE,
UDUPI - 576 101.
5. MR. CHETHAN KONDE,
S/O MRS. SAROJINI SHEDTHI,
AGED ABOUT 41 YEARS,
6. MR. RAKSHAN KONDE,
S/O MRS. SAROJINI SHEDTHI,
AGED ABOUT 39 YEARS,
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7. BABY D/O SAPNA R SAMANI,
AGED ABOUT 21 YEARS,
NOS.(5) TO (7) ARE
R/AT BAPPANADUGUTHU,
BAPPANADU VILLAGE,
MANGALURU TALUK - 574 154.
8. MRS. MALATHI J SHETTY,
W/O MR. JAGADISH SHETTY,
AGED ABOUT 53 YEARS,
9. MRS. SHIVAPRASAD,
S/O MR. JAGADISH SHETTY,
AGED ABOUT 33 YEARS,
10. MR. KRISHNAPRASAD,
S/O MR. JAGADISH SHETTY,
AGED ABOUT 31 YEARS,
11. DEEPA,
D/O MR. JAGADISHA SHETTY,
AGED ABOUT 29 YEARS,
NOS.(8) TO (11) ARE
R/AT BAPPANADUGUTHU,
BAPPANADU VILLAGE
MANGALURU TALUK - 574 154.
12. MR. PANDURANGA SHETTY,
S/O MR. BALAKRISHNA HEGDE,
AGED ABOUT 70 YEARS,
R/A BAPPANADUGUTHU,
BAPPANADU VILLAGE,
MANGALURU TALUK - 574 154.
13. MRS. SULOCHANI B HEGDE,
W/O MR. BALAKRISHNA HEGDE,
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AGED ABOUT 72 YEARS,
R/A BAPPANADUGUTTU,
BAPPANADU VILLAGE,
MANGALURU TALUK - 574 154.
14. MRS. SUVASINI,
W/O MR. KESHAVA NAIK,
AGED ABOUT 72 YEARS,
R/A NEAR DEVADIGARA SANGA,
BAPPANADU, MULKI,
MANGALURU TALUK - 574 154.
15. MRS. VANI S HEGDE,
W/O MR. SURESH HEGDE,
AGED ABOUT 64 YEARS,
R/A BAPPANADUGUTHU,
BAPPANADU VILLAGE,
MANGALURU TALUK - 574 154.
...RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL RECORDS FROM
THE TRIAL COURT WHICH ULTIMATELY RESULTED IN PASSING
IMPUGNED ORDER VIDE ANNEXURE - A DATED 05.01.2021
MADE IN M.A.NO.57/2018 BY THE COURT OF PRINCIPAL
DISTRICT AND SESSIONS, D.K. MANGALURU AND ETC.
THIS PETITION, COMING ON FOR PRELIMIARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 7628 of 2021
ORDER
The petitioners, plaintiffs in O.S.No.163/2015 on the
file of the III Additional Senior Civil Judge, Mangaluru,
D.K., are before this Court challenging the judgment dated
05.01.2021 in M.A.No.57/2018 on the file of the Principal
District Judge, D.K., Mangaluru, whereunder order dated
02.03.2018 passed by the trial Court is set aside and
I.A.No.26 filed under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure, 1908 (for short 'CPC') is
dismissed.
2. Heard Sri. H.Jayakara Shetty, learned counsel
for the petitioners and perused the writ petition papers.
3. Learned counsel for the petitioners would
submit that the suit of the petitioners-plaintiffs is one for
partition and separate possession of the suit schedule
properties. It is submitted that the suit is of the year
1997 and it is renumbered as O.S.No.163/2015. Learned
counsel submits that when the suit was at the stage of
plaintiffs' evidence, the plaintiffs filed I.A.No.26 under
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Order XXXIX Rules 1 and 2 of CPC, seeking an order of
temporary injunction restraining defendant Nos.1(a) to
1(d), 3(a) to 3(d), 41, 47 to 49 from selling or alienating
the property bearing Sy.No.53/14 to an extent of 2.06
guntas. The said application was filed on 03.07.2017.
The trial Court by order dated 02.03.2018, allowed the
said application and restrained the defendants from
alienating the suit schedule property. Challenging the said
order, the defendants filed an appeal in M.A.No.57/2018.
The Appellate Court by judgment dated 05.01.2021 set
aside the order dated 02.03.2018 passed by the trial Court
and rejected the application filed under Order XXXIX Rules
1 and 2 of CPC. Learned counsel further submits that the
plaintiffs apprehend that the defendants mentioned in
I.A.No.26 may dispose of one of the items of plaint
schedule property and therefore, application under Order
XXXIX Rules 1 and 2 of CPC was filed seeking a direction
not to alienate one item of the property i.e., Sy.No.53/14
to an extent of 2.06 guntas. It is further submitted that if
the defendants sell one item of the property, it would lead
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to multiplicity of proceedings. Hence, the Appellate Court
is not justified in setting aside the order granting
injunction.
4. On hearing the learned counsel and on perusal
of the order passed by the Appellate Court, I am of the
view that no ground is made out to interfere with the
same. Moreover, the impugned order is neither perverse
nor suffers from any material irregularity so as to warrant
interference under Article 227 of the Constitution of India.
5. The Appellate Court by a reasoned order set
aside the order passed by the trial Court. Paragraph No.17
of the order reads as follows:
"17. It is also important to note that even if
the Defendants alienate the schedule properties or
any part thereof, such alienation would be subject to
result of the suit. As such no hardship or prejudice
would be caused to the Plaintiffs even in the case of
any alienation during pendency of the suit as the
purchaser cannot put forth defense of bonafide
purchaser or any equity, particularly against the
Plaintiffs. As such this Court opines that the trial
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Court has even erred in holding that the balance of
convenience and greater hardship lies in favour of
the Plaintiffs."
6. One of the ground on which the injunction is set
aside is that any alienation during pendency of the suit
would attract principle of lis pendens. Reasons assigned
by the Appellate Court for setting aside the order of
injunction granted by the trial Court needs no interference.
Accordingly, writ petition stands rejected.
Since the suit is of the year 1997, which is
renumbered in the year 2015, the trial Court to endeavor
for early disposal of the suit.
Sd/-
JUDGE
SMJ
