Karnataka High Court
Sadashiva vs K. Damodar Shenoy on 4 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 494 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 494 OF 2023 (CPC)
BETWEEN:
SADASHIVA
(SINCE DECEASED)
REPRESENTED BY HIS LRS
1. VEDAVATHI
AGED ABOUT 72 YEARS,
W/O LATE SADASHIVA,
RESIDING AT JYOTHINAGARA,
KULASHEKARA, KUDUPU POST,
MANGALURU - 574 508.
2. ASHOKA,
AGED ABOUT 46 YEARS,
S/O LATE SADASHIVA,
Digitally signed
by SHARANYA T RESIDING AT JYOTHINAGARA,
Location: HIGH KULASHEKARA, KUDUPU POST,
COURT OF
KARNATAKA MANGALURU - 574 508.
3. CHARAN,
AGED ABOUT 44 YEARS,
S/O LATE SADASHIVA,
RESIDING AT JYOTHINAGARA,
KULASHEKARA, KUDUPU POST,
MANGALURU - 574 508.
4. ANITHA,
AGED ABOUT 41 YEARS,
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MFA No. 494 of 2023
D/O LATE SADASHIVA,
RESIDING AT JYOTHINAGARA,
KULASHEKARA, KUDUPU POST,
MANGALURU - 574 508.
5. YOGINI
AGED ABOUT 81 YEARS,
D/O LATE PONNAMMA,
RESIDING AT 24/1, 4TH CROSS,
9TH MAIN, TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
K SANJEEVA
(SINCE DECEASED)
REPRESENTED BY HIS LRS
6. CHANDRAVATHI,
AGED ABOUT 74 YEARS,
W/O LATE K SANJEEVA,
RESIDING AT SHIVAGANESH NIVAS,
DOOR NO.1.17/196,
LANDLINKS TOWNSHIP,
DEREBAIL, KONCHADY,
MANGALURU - 575 008.
7. K.S. JAGADISH,
AGED ABOUT 54 YEARS,
S/O LATE K. SANJEEVA,
RESIDING AT SHIVAGANESH NIVAS,
DOOR NO.1.17/196,
LANDLINKS TOWNSHIP,
DEREBAIL, KONCHADY,
MANGALURU - 575 008.
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MFA No. 494 of 2023
8. MEENA KUMARI,
AGED ABOUT 53 YEARS,
D/O LATE K. SANJEEVA,
RESIDING AT SHIVAGANESH NIVAS,
DOOR NO.1.17/196,
LANDLINKS TOWNSHIP,
DEREBAIL, KONCHADY,
MANGALURU - 575 008.
9. VEENA,
AGED ABOUT 52 YEARS,
D/O LATE K. SANJEEVA,
RESIDING AT SHIVAGANESH NIVAS,
DOOR NO.1.17/196,
LANDLINKS TOWNSHIP,
DEREBAIL, KONCHADY,
MANGALURU - 575 008.
10. MAINAVATHI,
AGED ABOUT 62 YEARS,
D/O YOGINI,
RESIDING AT 24/1, 4TH CROSS,
9TH MAIN, TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
11. DINESH,
AGED ABOUT 55 YEARS,
S/O YOGINI,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
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MFA No. 494 of 2023
12. HEMANTH,
AGED ABOUT 53 YEARS,
S/O YOGINI,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
13. REKHA,
AGED ABOUT 45 YEARS,
D/O YOGINI,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
14. DEEKSHITH,
AGED ABOUT 31 YEARS,
S/O PUSHPALATHA,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
15. SHREYA,
AGED ABOUT 24 YEARS,
D/O REKHA,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
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MFA No. 494 of 2023
16. DIYA,
AGED ABOUT 19 YEARS,
D/O YOGINI,
RESIDING AT 24/1,
4TH CROSS, 9TH MAIN,
TRIVENI ROAD,
YESHAWANTHAPURA,
BANGALORE - 560 022.
...APPELLANTS
(BY SRI. SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. K. DAMODAR SHENOY,
MAJOR,
S/O K. ANANDA SHENOY,
OFFICE AT 19 AND 20,
3RD FLOOR,
MANASA TOWERS,
M.G. ROAD, KODIALBAIL,
MANGALURU - 575 003.
2. M/S YENMARK BUILDERS,
REPRESENTED BY
MOHAMMED HUSSAIN ABBAS,
OFFICE AT S-11,
PRESIDIUM COMMERCIAL COMPLEX,
N.G. ROAD, ATTAVARA,
MANGALURU - 575 001.
...RESPONDENTS
(BY SRI. UDAYA PRAKASH M., ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 16.11.2022 PASSED ON
I.A.NO.XIV IN OS.NO.270/2017 ON THE FILE OF THE I
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MFA No. 494 of 2023
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU
D.K., ALLOWING THE I.A.NO.XIV FILED UNDER ORDER 39
RULE 4 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the counsel appearing for appellant and the
counsel appearing for defendants.
2. This MFA is filed against the Order passed by the
Trial Court on I.A.14 in OS No.207/2017 vide Order dated
16.11.2023. The factual matrix of the case is that the plaintiff
sought relief of partition and separate possession. Inter alia,
sought for an Order of temporary injunction and injunction was
granted and hence defendant No.87 has filed I.A. under 39
Rule 4 to vacate the Order of temporary injunction. The Trial
Court having considered the I.A. and also the material on
record allowed the application and vacated the interim order
considering the material on record that defendant Nos.86 and
87 have purchased the same. The said sale is also subject to
ultimate decision of the suit. Trial Court also made observation
that the trial is definitely going to consume ordinarily more
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time. The building and the construction is alleged to have been
put up prior to filing of the suit on the strength of sale deed of
the year 2017. The Trial Court has also taken note of
defendants have filed the application for advancement and
construction, if any made by them increases the value of the
property in a higher ratio. When the defendant Nos. 86 and
87 also admitteded risk of carrying out the construction of
building, subject to the ultimate decision of the suit, they are
expected to digest the case results. An observation is made
that the suit being 5 years old and it is not proper to stop the
construction in the suit scheduled property, which will cost
complete hardship to defendant Nos.86 and 87. Hence, vacated
the interim order and hence, the present appeal is filed before
this Court.
3. The main contention of the counsel appearing
before this Court for the appellant is that the Trial Court has
committed an error in making the observations that the trial
takes time to dispose off the matter and also the counsel
vehemently contended that the Trial Court despite being
capable has not disposed the suit on merits, that is namely
after completion of service of summons on the defendants
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cannot proceed to vacate the interim order passed by the
same, merely because the trial is definitely going to consume
more than ordinary time. The very approach of the Trial Court
is erroneous. Counsel vehemently contends that Section 41 is
clear with regards to the transfer by owner under the validity of
the sale deed is also subject to result of the suit and when such
being the case, the Trial Court ought not to have vacated the
interim order. The very approach of Trial Court is erroneous in
vacating the interim order, hence, requires interference.
4. Per contra, learned counsel appearing for
respondents submits that the property was purchased in the
month of February, 2017 and the suit was filed subsequent to,
in the month of November 2017 and also the Trial Court not
only considered the ground that the trial takes more time and
also observation is made that if the construction is made, it
increases the value of the property and also defendants have
admitted the risk of carrying on the construction of the same,
that the property was purchased prior to filing of the suit and
not subsequent to the filing of the suit.
5. Learned counsel appearing for appellant contends
that if the interim order is not vacated, it would cost hardship
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to the respondents and well reasoned order has been passed
and it does not require any interference.
6. Having heard the counsel appearing for appellants
and the counsel appearing for respondents, no doubt that the
suit is filed for reliefs of partition and separate possession and
interim order is sought for temporary injunction and also it is
not in dispute that the interim order was granted. The records
discloses that, when defendant Nos.86 and 87 have purchased
the property prior to the filing of the suit, put up the
construction and an application is also filed for vacating the
interim order, by invoking 39 Rule 4 CPC. Trial Court also took
note of the reliefs sought for and also there are number of
parties in the suit and observations is made that the trial takes
time. It is also important to note that when the defendants
appeared before the Court and made the submission that risk
of carrying out construction of building is subject to ultimate
decision of the suit and even if the plaintiff succeeds they are
not going to claim the equity and the same is also taken note of
in paragraph 14 of the Order passed by the Trial Court. No
doubt the suit is for the reliefs of partition and separate
possession and the suit was filed in the year 2017 and the
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interim order was vacated almost after 5 years, i.e., on
16.11.2022. The Trial Court has taken note of the sale deed
prior to the filing of the suit, hence, rightly comes to the
conclusion that the matter takes time for disposal and the suit
is also for the reliefs of partition and separate possession. .
Having considered defendant did not claim any equity and even
if the construction is made that is an improvement of the
property and if the plaintiff succeeds they are also entitled for
the share in the improved property and when such observation
is made, I do not find any error committed by the Trial Court in
vacating the interim order invoking order 39 rule 4, since
defendants are not claiming any equity.
7. Learned counsel appearing for respondent also
submits before this Court also that he will not claim equity even
if the plaintiff succeeds in the suit and when such submission is
already made before the Trial Court and before this Court and
also taken note of admission of the defendants that the
construction is also subject to result, I do not find any merit in
the appeal. However, taking note of the suit is of the year
2017 and almost 6 years has been lapsed, this Court also can
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give directions to the Trial Court to dispose off the suit within 9
months from today.
With these observations appeal stands disposed off.
Sd/-
JUDGE
NJ
CT:SNN
