Karnataka High Court
M.M Charities vs Nil on 12 February, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:5876
RFA No. 2373 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 2373 OF 2023 (RES)
BETWEEN:
1. M.M CHARITIES
A PUBLIC TRUST HAVING ITS
REGISTERED OFFICE AT NO.12
3RD MAIN ROAD
NEW THARAGUPET
BENGALURU-560002
REPRESENTED BY THE
MANAGING TRUSTEE
MR.T. MAHAMUNI.
2. MR.R. THULASI RAM
S/O SRI.T.C. RATHNAM CHETTIAR
AGED ABOUT 82 YEARS
3. MRS. P RADHA BAI
W/O SRI S PARAMSHIVAM
AGED ABOUT 57 YEARS.
Digitally signed by
HEMALATHA A
Location: High 4. MR.S PARASHIVAM
Court of Karnataka
S/O SRI. SADYAN CHETTIAR
AGED ABOUT 67 YEARS
5. MRS. A SARASWATHI
S/O SRI. ARASU
AGED ABOUT 52 YEARS
6. MR.T. JAGANNATHAN
S/O R. THULASIRAM
AGED ABOUT 52 YEARS
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RFA No. 2373 of 2023
7. MRS.J. POONJOLAI
W/O T. JAGANNATHAN
AGED ABOUT 44 YEARS
8. MRS S ARASU
S/O SRI. SADAYAN CHETTIAR
AGED ABOUT 62 YEARS
9. MR.T. MAHAMUNI
S/O R. THULASIRAM
AGED ABOUT 56 YEARS
10. MRS. M. MAHALAKSHMI
W/O SRI. T. MAHAMUNI
AGED ABOUT 57 YEARS
APPELLANT Nos. 2 TO 10 ARE
R/AT NO.12, 3RD MAIN ROAD
NEW THARAGUPET
BANGALORE-560002.
...APPELLANTS
(BY SRI. RUKKOJI RAO H S.,ADVOCATE)
AND:
NIL
...RESPONDENT
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED 16.11.2023 PASSED ON I.A IN
OS.NO.7458/2014 ON THE FILE OF THE XV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING I.A.
FILED UNDER SECTION 92 OF CPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 2373 of 2023
JUDGMENT
This appeal is filed by the plaintiffs under Section 96
r/w. Order 41 Rule 1 of Civil Procedure Code challenging
the order, dated 16.11.2023 passed by the XV Additional
City Civil & Sessions Judge, Bengaluru, dismissing the IA
filed by the plaintiffs under Section 151 r/w. Section 92 of
CPC in O.S.No.7458/2014.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial court.
3. The brief facts of the case are that the plaintiffs
are the Managing Trustees and Trustees of M/s.
M.M.Charities, a public trust. They have filed an
application under Section 92 of CPC, seeking permission to
file a suit. After obtaining permission, the suit has been
filed in O.S.No.7558/2014. The trial court, after following
procedure of law, as contemplated under Section 92 of
CPC, passed the following decree:
"Suit of the plaintiff - Trust is hereby decreed
as under:
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Plaintiff - Trust is permitted to develop suit
schedule property either by themselves or joint
development with the builder.
Further permission is also granted for alienation
of constructed or built up area in the commercial
complex which is going to be constructed on suit
property with following conditions:
(1) Plaintiff - Trust shall maintain proper account
for construction of premises.
(2) Plaintiff - Trust shall audit its accounts by
qualified Chartered Accountant.
(3) While letting out and alienation of any
constructed commercial complex, plaintiff - Trust
shall publish public notice and such sale shall be
conducted only by public auction.
(4) Members of the plaintiff - Trust shall not
indulge with purchase of trust property either in their
names or in the name of their family members.
Office to draw decree accordingly only after
filing declaration by all members of the plaintiff -
Trust declaring that they abide by the above
conditions."
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4. Thereafter, the plaintiffs approached the builder to
develop the trust property. The condition imposed by the
builders is that in respect of the builder's share is
concerned, they may be permitted to sell without any
public notice or public auction. They have also sought for
permission to construct the building for residential-cum-
commercial purpose. Therefore, the plaintiff filed an
application before the trial court under Section 151 r/w.
Section 92 of CPC, seeking modification of the decree to
the effect that in respect of 60% of the share of the
builder is concerned, he may be permitted to alienate the
same without any public notice or public auction and also
sought for permission to develop the schedule property by
joint development for construction of building for
residential-cum-commercial purpose.
5. The learned counsel for the appellants/plaintiffs
submitted that they have approached number of builders,
they have sought for modification of the decree to that
effect. Since the trust is not in a position to develop the
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property, they want to develop the property by Joint
Development Agreement. Therefore, he sought for
relaxation of the condition.
6. Heard the learned counsel for the
appellants/plaintiffs. Perused the records and the earlier
order passed by the trial court.
7. I am of the opinion, that the decree passed by
the trial court, dated 17.07.2015, requires to be modified
only to the effect that condition No.3 will not be applicable
to the share of the builder and the trust is permitted to
develop the trust property for residential or commercial
purposes. To that effect, the decree passed by the trial
court, dated 17.07.2015, is modified.
8. Accordingly, the appeal stands disposed of.
Sd/-
JUDGE
CM
