Karnataka High Court
R. Krishnamurthy vs Smt. S. Sarojamma on 2 April, 2024
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NC: 2024:KHC:13439
MFA No. 6366 of 2023
C/W MFA No. 3145 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 6366 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3145 OF 2023 (CPC)
IN MFA NO.6366/2023:
BETWEEN:
R. KRISHNAMURTHY
S/O. LATE RAMAIAH,
AGED ABOUT 56 YEARS,
R/AT NO.146,
SRI. VENKATADRI NIVASA,
1ST CROSS, NEAR LAKSHMI TALKIES,
C. MUNIYAPPA LAYOUT, ANEKAL-562 106,
BANGALORE RURAL DISTRICT.
...APPELLANT
(BY SRI. SRINIVAS V., ADVOCATE)
AND:
Digitally signed SMT. S. SAROJAMMA
by
MARKONAHALLI D/O. LATE M. SHIVANNA,
RAMU PRIYA AGED ABOUT 46 YEARS,
Location: HIGH
COURT OF R/AT NO.152, 1ST CROSS,
KARNATAKA LAKSHMI TALKIES,
C. MUNIYAPPA LAYOUT,
ANEKAL-562 106,
BENGALURU RURAL DISTRICT.
...RESPONDENT
(BY SRI. VISWANATHA SETTY V., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
31.07.2023 PASSED ON I.A.NO.1 IN OS.NO.368/20018 ON THE
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NC: 2024:KHC:13439
MFA No. 6366 of 2023
C/W MFA No. 3145 of 2023
FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, ANEKAL,
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 READ WITH SECTION 151 OF CPC.
IN MFA NO.3145/2023:
BETWEEN:
R. KRISHNAMURTHY
S/O.. LATE RAMAIAH,
AGED ABOUT 56 YEARS,
R/AT NO.146,
SRI. VENKATADRI NIVASA,
1ST CROSS, NEAR LAKSHMI TALKIES,
C. MUNIYAPPA LAYOUT, ANEKAL-562 106,
BANGALORE URBAN DISTRICT.
...APPELLANT
(BY SRI. SRINIVAS V., ADVOCATE)
AND:
SMT. S. SAROJAMMA
D/O. LATE M. SHIVANNA,
AGED ABOUT 46 YEARS,
R/AT NO.152, 1ST CROSS,
LAKSHMI TALKIES,
C. MUNIYAPPA LAYOUT,
ANEKAL-562 106,
BENGALURU URBAN DISTRICT.
...RESPONDENT
(BY SRI. VISWANATHA SETTY V., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, PRAYING TO SET ASIDE THE
ORDER DATED 05.01.2019 PASSED ON I.A.NO.1/2018 IN
OS.NO.368/20018 ON THE FILE OF THE SENIOR CIVIL JUDGE,
JMFC, ANEKAL, BENGALURU RURAL DISTRICT WHICH IS FILED
UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF
CPC.
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MFA No. 6366 of 2023
C/W MFA No. 3145 of 2023
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.3145/2023 is filed by the defendant in
O.S.No.368/2018 pending consideration before the Principal
Senior Civil Judge and JMFC, Anekal challenging an order dated
05.01.2019 by which, the Court had granted an order of
injunction restraining the defendant from alienating the suit
schedule property.
2. MFA No.6366/2023 is filed by the defendant in
O.S.No.368/2018 on the file of Principal Senior Civil Judge &
JMFC, Anekal challenging an order dated 31.07.2023 by which,
an application filed by the plaintiff under Order XXXIX Rules 1
and 2 of Civil Procedure Code was allowed and the defendant
was restrained from alienating the suit schedule property until
disposal of the suit.
3. The suit in O.S.No.368/2018 was filed for specific
performance of an agreement of sale dated 25.08.2016
allegedly executed by the defendant, in terms of which, the
defendant agreed to sell the suit property for a sum of
Rs.50,00,000/- and received a sum of Rs.45,00,000/- as part
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of the agreed sale consideration and the balance of
Rs.5,00,000/- was agreed to be paid at the time of registering
a deed of absolute sale in favour of the plaintiff. The plaintiff
claimed that despite several follow ups, the defendant was
postponing to perform his part of contract. Therefore, the
plaintiff was forced to file a suit for specific performance of
agreement dated 25.08.2016.
4. The summons in the suit was issued to the
defendant who entered appearance through his counsel and
filed his written statement on 05.01.2019. He also filed a memo
to treat the written statement as objections to the application
filed by the plaintiff. The Trial Court after noticing the
contentions urged by the defendant in the written statement
passed an interim order on 05.01.2019 restraining the
defendant from alienating the suit schedule property until
further orders.
5. This order dated 05.01.2019 is challenged by the
defendant in MFA No.3145/2023 on the ground that the Trial
Court while granting an order of injunction did not record any
reasons. Later, the Trial Court considered the application filed
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by the plaintiff and passed a considered order on 31.07.2023
and allowed the application filed by the plaintiff for interim
injunction and restrained the defendant from alienating the suit
schedule property. This order is challenged in MFA
No.6366/2023.
6. The learned counsel for the defendant submitted
that the order dated 05.01.2019 did not bear out reasons for
granting an order of injunction in favour of the plaintiff and
therefore, that part of the order is to be set aside. Further he
contends that when the Court had already passed an order
dated 05.01.2019, it could not have reconsidered the
application for injunction and could not have passed a
subsequent order dated 31.07.2023. He therefore, contends
that both these orders are therefore liable to be set aside and
the Trial Court is to be directed to reconsider the application a
fresh.
7. Per contra, the learned counsel for the plaintiff
contended that the Trial Court passed an order restraining the
defendant from alienating the suit schedule property, after he
filed a written statement which was an interim arrangement
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pending disposal of the application for injunction. In the
meanwhile, the file was misplaced and it took time for the
Court to trace back the file and after the file was reconstructed,
the Trial Court considered the application filed by the plaintiff
on merits and passed an order dated 31.07.2023 granting
injunction. Therefore, he contends that there is no error
committed by the Trial Court in passing the order of injunction.
Even otherwise, he contends that since the defendant had
executed an agreement of sale which was duly registered
before the concerned Sub-Registrar and had received major
portion of the sale consideration, he could not alienate or
encumber or transfer any portion of the suit schedule property,
pending disposal of the suit, as that would cause more hardship
to the plaintiff. Therefore, he contends that the impugned
order passed by the Trial Court is just and proper and does not
warrant any interference.
8. I have considered the submissions made by the
learned counsel for the plaintiff as well as learned counsel for
the defendant.
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9. A perusal of order dated 05.01.2019 passed by the
Trial Court shows that it was not passed on merits and it was
purely an intermediary order pending disposal of the application
filed by the plaintiff for interim injunction. Therefore, the
defendant cannot contend that the application filed by the
plaintiff itself was disposed off in terms of the order dated
05.01.2019. Hence, the appeal filed by the defendant in MFA
No.3145/2023 lacks merit and is liable to be dismissed.
10. In so far as the challenge to the order dated
31.07.2023 is concerned, as rightly held by the Trial Court, the
plaintiff had made out a prima facie case for grant of an order
of injunction in as much as, the agreement dated 25.08.2016
was duly registered before the concerned Sub-Registrar and a
large part of the agreed sale consideration was purportedly paid
by the plaintiff to the defendant and what was outstanding was
only a sum of Rs.5,00,000/-. Therefore, the defendant cannot
be permitted to alienate or transfer any portion of the suit
property as that would cause inconvenience and hardship to the
plaintiff.
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11. In that view of the matter, the Trial Court was
justified in granting an order of injunction restraining the
defendant from alienating the suit schedule property and the
same does not warrant interference.
12. In that view of the matter, both these appeals lack
merit and are dismissed. The Trial Court is directed to dispose
off the case in accordance with the Karnataka Case Flow
Management in Subordinate Court Rules, 2005.
Sd/-
JUDGE
HJ
