Karnataka High Court
Sri Srinivasa V vs Sri Venkatappa on 2 July, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2024:KHC:24725
MFA No. 2478 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.2478 OF 2024 (CPC)
BETWEEN:
SRI SRINIVASA V.,
S/O VENKATAPPA,
AGED ABOUT 59 YEARS,
R/A NO 1, CAUVERY EXTENSION,
VARTHUR VILLAGE,
BANGALORE EAST TALUK,
BENGALURU - 560 087.
...APPELLANT
(BY SRI G. NARAYANA RAO, ADVOCATE)
AND:
1. SRI VENKATAPPA,
S/O LATE CHINNAPPA,
AGED ABOUT 85 YEARS,
R/O THIMANADANAHALLI VILLAGE,
MUTHUSANDRA POST,
ANUGAONDANAHALLI HOBLI,
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT.
2. SMT. RAMAKKA,
Digitally signed by W/O VENKATAPPA,
GEETHAKUMARI AGED ABOUT 78 YEARS,
PARLATTAYA S
R/O THIMANADANAHALLI VILLAGE,
Location: High
Court of Karnataka MUTHUSANDRA POST,
ANUGONDANAHALLI HOBLI,
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT.
3. SMT. BHAGYAMMA,
D/O VENKATAPPA,
W/O V. RAJAPPA,
AGED ABOUT 62 YEARS,
R/AT NO 135, KODIHALLI,
JEEVANBHEEMA NAGAR POST,
BENGALURU - 560 008.
4. SRI VENKATASWAMY,
S/O VENKATAPPA,
AGED ABOUT 57 YEARS,
-2-
NC: 2024:KHC:24725
MFA No. 2478 of 2024
R/O THIMMANDANAHALLI VILLAGE,
MUTHUSANDRA POST,
ANUGONDANAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
5. SMT. NIRMALA,
D/O VENKATAPPA,
W/O NARAYANASWAMY,
AGED ABOUT 58 YEARS,
R/O DODDA KADATHURU VILLAGE AND POST,
MALUR TALUK, KOLAR DISTRICT.
6. SMT. RENUKAMMA,
D/O VENKATAPPA,
AGED ABOUT 47 YEARS,
R/O DODDA KADATHURU VILLAGE AND POST,
MALUR TALUK, KOLAR DISTRICT.
7. SMT. GEETHA,
D/O VENKATAPPA,
W/O MUNIRAJU,
AGED ABOUT 44 YEARS,
R/O LAKKONDANAHALLLI VILLAGE,
SULIBELE HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
8. SMT. S. MANGALAM,
SINCE DECEASED BY LRS,
8(a) SARAVANAN S.,
S/O LATE MANGALAM SWAMYNATHAN S.,
AGED ABOUT 41 YEARS,
8(b) SWAMYNATHAN S.,
HUSBAND OF MANGALAM,
AGED ABOUT 68 YEARS,
8(c) KOKILA,
D/O LATE S. MANGALAM,
AGED ABOUT 45 YEARS,
8(d) GAYATHRI,
D/O LATE S. MANGALAM,
AGED ABOUT 41 YEARS,
-3-
NC: 2024:KHC:24725
MFA No. 2478 of 2024
8(e) REVATHI,
D/O LATE S. MANGALAM,
AGED ABOUT 39 YEARS,
ALL ARE R/A NO.344,
OPP. TO SREE BALAMURUGAN TEMPLE,
KAROMATION ROAD,
BANGARPETE 563114.
9. S.R. MANJULA,
D/O N.S.P. RAJ,
AGED ABOUT 44 YEARS,
R/AT NO.5/2, 8TH CROSS,
CHIKKABAIAH ROAD,
OPP. TO MARY FLAVOR APARTMENT,
NAGAWARAPALYA,
C.V. RAMAN NAGARA POST,
BENGALURU - 560 093.
14. SMT. P. AMARAVATHI,
W/O N. GOVINDAPPA,
AGED ABOUT 54 YEARS,
R/AT NO.78, 5TH CROSS,
RAJANNA COLONY,
NAGAVARA PALYA,
C V RAMAN NAGAR POST,
BENGALURU - 560 093.
15. SRI M. RAMESH KUMAR,
S/O S MUTHIAH,
AGED ABOUT 46 YEARS,
R/AT NO.2, 11TH CROSS,
VISHWESHWARAIAH STREET,
NEAR K R PURAM,
RAILWAY STATION,
A.NARAYANAPURA,
BENGALURU - 560 016.
...RESPONDENTS
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 11.01.2024 PASSED ON I.A.NO.1
IN O.S.NO.4956/2021 ON THE FILE OF THE X ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CCH-26, REJECTING THE
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-4-
NC: 2024:KHC:24725
MFA No. 2478 of 2024
JUDGMENT
Challenging order dated 11.01.2024 passed by X Addl.
City Civil and Sessions Judge (CCH-26), Bengaluru, in
O.S.no.4956/2021 on I.A.no.1 filed under Order XXXIX Rules 1
and 2 of Code of Civil Procedure, 1908 ('CPC' for short), this
appeal is filed.
2. Sri G. Narayana Rao, learned counsel for appellant
submitted, appeal was by plaintiff in suit filed for partition,
separate possession and declaration. In said suit, plaintiff had
filed I.A.no.1 for order of temporary injunction restraining
defendants no.1 to 11 from alienating suit schedule properties,
during pendency of suit. It was submitted, under impugned
order, trial Court rejected said application on wholly untenable
grounds.
3. In affidavit filed in support of application, it was
stated, Munivenkatappa - propositus had acquired various
movable and immovable properties during his lifetime. He had
two sons namely, Chinnappa and Gundappa. It was stated that
Chinnappa, who was plaintiff's grandfather had three sons and
four daughters i.e., Venkatappa (defendant no.1), Muniyappa,
Lakshmana, Chinnamma, Shantamma, Munirathnamma and
NC: 2024:KHC:24725
Prabavathi. It was submitted, plaintiff was son of defendant
no.1, while defendant no.2 was wife and defendants no.3 to 7
were brothers and sisters.
4. It was stated, said Venkatappa had amassed
various movable and immovable properties, which were divided
amongst his children on 20.08.1978. Thereafter, defendant
no.1 sold four properties and from sale consideration purchased
items no.1 to 3 of suit schedule properties.
5. Thereafter under registered partition deed effected
on 12.09.2005, properties of Munivenkatappa were partitioned
between all his legal heirs. In said partition, defendant no.1
was allotted share. Since there was no prior partition of joint
family properties, plaintiff demanded for share. As it was
denied, suit was filed. In meanwhile, as defendants no.1 and 2
along with defendants no.3, 5 to 7 had alienated few suit
schedule properties to defendants no.8 to 11 without consent of
plaintiffs and who were making hectic efforts to alienate them,
an interim application was filed for temporary injunction.
6. On service of suit summons, defendants entered
appearance, filed written statement and objections to I.A.
Thereafter, trial Court rejected I.A. without considering
NC: 2024:KHC:24725
documents produced by him and without considering legitimate
share of plaintiff.
7. It was submitted, suit schedule properties were
ancestral joint family properties. It was submitted, suit was
filed for partition and separate possession, challenging sale
deeds executed behind back of plaintiff. It was submitted,
plaintiff had specifically stated without giving his legitimate
share defendants no.1 to 7 sold items no.1 to 3 of suit schedule
properties to defendants no.8 to 11 and who were also trying to
sell them to third parties. Therefore, if same was not prevented
by granting order of temporary injunction, same would lead to
multiplicity of proceedings. Without considering said aspect,
merely by observing that though plaintiff claimed to be in joint
possession and residing in same place as defendants, his claim
about lack of knowledge about sale transactions by defendant
no.1 could not be accepted at interim stage, trial Court refused
relief under application. Hence, order was untenable and
sought interference.
8. Heard learned counsel and perused impugned
order.
NC: 2024:KHC:24725
9. From above, point that would arise for consideration
is:
"Whether order of trial Court is untenable or perverse
and calls for interference?"
10. This is an appeal challenging discretionary order
passed by trial Court under Order XXXIX Rules 1 and 2 of CPC
on I.A.no.1. As per decision of Hon'ble Supreme Court in
Mohd. Mehtab Ibrahim Khan v. Khushnuma Ibrahim
Khan, reported in 2013 (9) SCC 221, scope for interference
in appeal against discretionary order would be limited, unless it
were untenable or suffered from perversity etc. It is also
clarified therein that in case view taken by trial Court on
available material were to be one of possible views, there could
be no interference.
11. Perusal of impugned order, reveals that trial Court
has adverted to contentions of parties, framed necessary points
for consideration and passed impugned order by assigning
reasons.
12. Perusal of impugned order, reveals that trial Court
narrated plaintiff's assertion about events in relation to suit
schedule properties which had occurred over a substantial
period of time. As per its observation though there is no period
NC: 2024:KHC:24725
of limitation for filing suit for partition, but while considering
application for temporary injunction, conduct of parties would
be one of important factors.
13. Suit was filed in year 2021 by seeking declaration in
respect of gift deeds and sale deeds executed more than
decade earlier. Under such circumstances, Trial Court, took
note of fact that plaintiff was not residing away from suit
schedule properties, in fact claimed to be in joint possession
thereof and was not a stranger to defendants, would
substantiate lack of prudence. Lack of prudence, amounts to
acquiescence. Hon'ble Supreme Court in case of Gujarat
Bottling Company Limited v. Coca Cola Company Limited,
reported in AIR 1995 SC 2372, lack of bonafide conduct and
earnest on part of plaintiff would disentitle him from
discretionary relief. In view of above, point for consideration is
answered in negative.
Consequently, appeal is dismissed at admission stage
without need for issuing notice to respondents.
Sd/-
JUDGE
GRD
