Karnataka High Court
Srinivas Rao vs Sujatadevi on 2 April, 2024
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NC: 2024:KHC-K:2747
MFA No. 200722 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO. 200722 OF 2024 (CPC)
BETWEEN:
SRINIVAS RAO
TIPPANNA SUTAR,
AGE: 49 YEARS,
OCC: AGRICULTURE
AND BUSINESS,
R/O. SULEPETH,
TQ: CHINCHOLI,
DIST: KALABURAGI.
NOW AT R/O. GULBARGA,
FLAT NO.304, D.D APARTMENTS,
OKLEY CAMP,
GULBARGA-585 102.
...APPELLANT
Digitally signed
(BY SRI MANVENDRA REDDY, ADVOCATE AND
by SACHIN SRI NARENDRA REDDY, ADVOCATE)
Location:
HIGH COURT
OF AND:
KARNATAKA
SUJATADEVI
W/O RAVINDRA NIRNI,
AGE: 58 YEARS,
OCCUPATION : TEACHER,
RESIDENCE OF SULEPETH,
TQ: CHINCHOLI,
DIST: KALABURAGI-585 307.
...RESPONDENT
(BY SRI R.J.BHUSARE, ADVOCATE FOR C/R)
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NC: 2024:KHC-K:2747
MFA No. 200722 of 2024
THIS MFA IS FILED U/S. XLIII RULE 1(r) OF CODE OF
CIVIL PROCEDURE, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE ORDER ON I.A NO. I FILED UNDER ORDER 39 RULE
1 AND 2 OF CPC IN OS NO. 12/2024 DATED 02.03.2024
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT
CHINCHOLI,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenge in this appeal is the order that is rendered
by the Court of Senior Civil Judge at Chincholi in I.A.No.I
in O.S.No.12/2024 dated 02.03.2024.
2. Heard Sri.Manavendra Reddy, learned counsel
for the appellant as well as Sri.R J Bhusare, learned
counsel for the respondent.
3. The appellant filed a suit before the Court of
Senior Civil Judge at Chincholi, vide O.S.No.12/2024
seeking Specific Performance of Contract and for Perpetual
Injunction. The appellant also moved an Interlocutory
Application vide I.A.No.I seeking temporary injunction,
restraining the respondent from digging the foundation
and constructing building in the suit schedule property.
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The suit schedule property is four plots i.e. plots bearing
No.4, 5, 11 and 12, which are located in Sy.No.172/2-c of
Sulepeth village, Tq: Chincholi, Dist: Kalaburagi. The case
of the appellant is that the respondent is the owner of the
suit schedule property and due to family and legal
necessities, the respondent agreed to sell the suit
schedule property to him for a total consideration of
Rs.25,00,000/-. He paid the entire sale consideration in
the presence of witnesses and the respondent executed a
sale deed dated 31.08.2019 upon a stamp paper worth
Rs.100/-, agreeing to execute the registered sale deed as
and when called upon. Subsequently, the respondent tried
to interfere with the peaceful possession and also tried to
construct a building in the suit property.
4. The case of the respondent is that herself and
her family members never encountered any problem, so
as to sell the suit schedule property to the appellant. The
appellant worked under her mother and brother for certain
period. The land in Sy.No.172/2-c admeasuring 3 acres,
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which is located in Sulepeth village was converted into non
agricultural land and got the layout approved. The
appellant participated in the said process. The appellant in
order to grab the plots has created forged
agreement/sale-deed. The appellant took inconsistent
pleas i.e., execution of the sale-deed dated 31.08.2019
and that she agreed to execute the registered sale-deed
which are contrary to each other. One of the witness is the
brother of the appellant and other witness is brother-in-
law of the appellant. Having valid rights and authority
being the owner, she engaged to construct a building in
the suit property. But with a malafide intention, suit is
filed by the appellant.
5. Taking into consideration the stand taken by
both sides, discussing the merits of the case and the law
applicable, the learned Judge of the Trial Court expressed
his opinion that there are no grounds to grant temporary
injunction as prayed for.
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6. Submitting with regard to the merits of the
matter, Sri Manvendra Reddy, learned counsel for the
appellant stated that the appellant was in peaceful
possession of the suit schedule property. The appellant
purchased the suit schedule property from the respondent
by paying a sum of Rupees Twenty Five Lakhs. A sale-
deed was also executed to that effect, but on a stamp
paper worth of Rs.100/-. Learned counsel contended that
though the nomenclature of the document is mentioned as
'sale-deed', indeed it is an agreement of sale. Learned
counsel also stated that the appellant was residing at
Gulbarga and taking advantage of the absence of the
appellant at the place where the suit property is located,
the respondent tried to interfere with his peaceful
possession. Learned counsel also submitted that the
respondent tried to proceed with the construction of the
building over the suit property and aggrieved by that the
appellant immediately filed a suit and also an application
for grant of temporary injunction. Though the entire case
is in favour of the appellant, the Trial Court dismissed the
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application of the appellant which is filed to grant of
temporary injunction and therefore the present appeal is
preferred. Learned counsel ultimately seeks the Court to
allow the appeal and grant temporary injunction as prayed
for.
7. On the other hand, the submission made by
Sri R.J.Bhusare is that the respondent neither executed
sale-deed nor agreement of sale in respect of the suit
schedule property. Learned counsel stated that the
appellant was working under the mother of the respondent
and he helped the respondent in converting the land into a
land of non-agriculture nature and thereafter laid plots.
Learned counsel also submitted that with the assistance of
the appellant, some plots were sold and the remaining
plots were kept for the personal use of the respondent.
Learned counsel further contended that to grab some of
those plots, the appellant created a forged document and
claims title basing on the said document. Learned counsel
also stated that the respondent secured material for
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construction of the building and laid foundation and
started construction and at that time the suit is filed by
the appellant only to harass the respondent.
8. Whether the appellant has shown prima facie
case in his favour, whether balance of convenience lies in
his favour and whether the appellant would be put to
hardship and loss in case such temporary injunction is not
granted have to be looked into in light of the pleas taken
by the rival parties.
9. Admittedly, the appellant is not required to
establish his case by producing all the evidence he intends
to produce so as to grant an order of temporary
injunction. However, the appellant is under liability to
show prima facie case and that in case temporary
injunction is not granted he would be put to hardship.
Grant of temporary injunction is a discretionary relief and
the exercise of such discretion wholly lies on the facts and
circumstances of each case. Application of mind judiciously
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by the concerned Judicial Officer is essential while dealing
with the matter.
10. In the case on hand, the nature of the
document itself is not clear. The appellant in his pleadings
i.e., in the plaint refers the suit document as 'sale-deed'
and contends that he filed suit for specific performance of
contract. His case is also that the respondent agreed to
execute a registered sale-deed. Keeping the anomaly
aside, which has to be resolved by the Trial Court on
production of sufficient evidence in that regard by both the
parties, in the case on hand, the appellant even failed to
establish that he is in possession of the suit property by
the date of filing of the suit. The version of the appellant is
that the respondent is trying to dig foundation and
construct building. However, the Trial Court made a
categorical observation that the photographs produced by
the respondent reveals that the respondent had put-up
considerable construction in the suit property and had
already laid foundation for the building. Now it has to be
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seen whether grant of temporary injunction would cause
more hardship to the appellant or to the respondent. The
appellant failed to establish prima facie case and balance
of convenience in his favour. So for as irreparable loss is
concerned, as observed by the Trial Court the loss that
would be sustained by the respondent would be more than
that of the appellant. Having considered all these aspects,
the Trial Court by its wisdom held that it is not desirable to
grant temporary injunction. This Court does not find any
grounds more so justifiable grounds to interfere with the
order thus passed. Resultantly, the appeal stands
dismissed.
Sd/-
JUDGE
NJ/SN
