Karnataka High Court
Smt. K. Shwetha vs Sri. Beerappa on 10 October, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:36875
MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5722 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5198 OF 2023(CPC)
IN MFA 5722/2023
BETWEEN:
SMT. GIRIJA. K.P.
W/O SRI KANAKARAJU
AGED ABOUT 30 YEARS
R/AT NO 125, ASHWATHKATTE ROAD
NEAR AMRUTHAHALLI WATER TANK
AMRUTHAHALLI
BANGALORE 560092. ...APPELLANT
(BY SRI. SHIVARAMU H C., ADVOCATE)
Digitally signed
by
DHANALAKSHMI AND:
MURTHY
Location: High
Court of 1. SRI. BEERAPPA
Karnataka S/O CHIKKA KANAKEGOWDA
AGED ABOUT 59 YEARS
R/AT NO 364, TUBUGERE
BENGALURU-561205.
2. SMT K SHWETHA
W/O M V SURESH
AGED ABOUT 37 YEARS
R/AT NO 8, MUTTAPPA BLOCK
2ND MAIN, 3RD CROSS
-2-
NC: 2023:KHC:36875
MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
GANGANAGAR EXTENSION
R T NAGAR POST
BANGALORE 560032. ...RESPONDENTS
(BY SRI.K SHIVASHANKAR., ADVOCATE FOR C/R2:
NOTICE NOT ORDERED TO R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED: 13.07.2023 PASSED
ON I.A. NO. III IN O.S.NO. 2961/2023 ON THE FILE OF
THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY (CCH.7), ALLOWING THE I.A. NO.3
FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF CPC.
IN MFA 5198/2023
BETWEEN:
SMT K SHWETHA
W/O M V SURESH
AGED ABOUT 37 YEARS
R/AT NO 8, MUTTAPPA BLOCK
2ND MAIN, 3RD CROSS
GANGANAGAR EXTENSION
R T NAGAR POST
BANGALORE 560032 ... APPELLANT
(BY SRI. SHIVASHANKAR K., ADVOCATE)
AND:
1. SRI. BEERAPPA
S/O CHIKKA KANAKEGOWDA
AGED ABOUT 59 YEARS
R/AT NO 364, TUBUGERE
BENGALURU-561205.
-3-
NC: 2023:KHC:36875
MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
2. SMT. GIRIJA. K.P.
W/O SRI KANAKARAJU
AGED ABOUT 30 YEARS
R/AT NO 125, ASHWATHKATTE ROAD
NEAR AMRUTHAHALLI WATER TANK
AMRUTHAHALLI
BANGALORE 560092 ...RESPONDENTS
(BY SRI. H.C. SHIVARAMU, ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED: 13.07.2023 PASSED
ON I.A. NO. III IN O.S.NO. 2961/2023 ON THE FILE OF
THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY (CCH.7), ALLOWING THE I.A. NO.3
FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.5722/2023 is filed by defendant No.2 and
MFA No.5198/2023 is filed by the plaintiff challenging the
order dated 13.07.2023 passed by the XXII Additional City
Civil and Sessions Judge, Bengaluru in O.S.No.2961/2023,
whereby the IA filed by the plaintiff under Order 39 Rules
1 and 2 is allowed.
NC: 2023:KHC:36875
MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
3. The plaintiff filed a suit for declaration, injunction
and possession. Plaintiff has also filed IA No.3 under
Order 39 Rules 1 and 2 of CPC for temporary injunction
restraining the second defendant from putting up any
further construction over the suit schedule property. The
trial court, by the impugned order, allowed the IA and
directed defendant No.2 not to put up further construction
over the suit schedule property. Being aggrieved, these
appeals have been filed.
4. The plaintiff claims that she has purchased the
suit schedule property by a registered sale deed dated
02.04.2008 and the second defendant claims that she has
purchased the suit schedule property by a registered sale
deed dated 26.04.2023. Both the parties are claiming
that they are in possession of the suit schedule property.
5. Now that the suit is set down for evidence, under
these circumstances, the only relief that can be granted is
NC: 2023:KHC:36875
MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
to direct the second defendant not to alienate the suit
schedule property and to direct the trial court to dispose of
the suit expeditiously.
6. Accordingly, I pass the following order:
(i) These petitions are disposed of.
(ii) The order dated 13.07.2023 passed by
the XXII Additional City Civil and Sessions
Judge, Bengaluru, on IA No.3 in
O.S.No.2961/2023 is modified that "the
defendant No.2 is permitted to put up
construction in the suit schedule property in
accordance with law. After completion, she
shall not alienate the suit schedule property but
she can lease out the property to any tenant
after taking an undertaking from the tenant
that in case defendant No.2 fails in the suit,
without any objection, they will vacate the suit
schedule premises".
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MFA No. 5722 of 2023
C/W MFA No. 5198 of 2023
(iii) The second defendant is directed to
file an affidavit before the trial court to the
effect that, in case, if she fails in the suit, she
will hand-over the entire suit schedule property,
after evicting the tenant, to the plaintiff. The
affidavit has to be filed within two weeks from
the date of receipt of a copy of this order.
(vi) In view of disposal of the main
matters, all pending applications stand disposed
of.
Sd/-
JUDGE
CM
