Karnataka High Court
Sri Ramesh S/O Laxmanrao Hubballi vs Sri Rajendra S/O Laxmanrao Hubballi on 2 July, 2024
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MFA No. 104478 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104478 OF 2023 (CPC)
BETWEEN:
SRI. RAMESH S/O. LAXMANRAO HUBBALLI,
AGE: 73 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST DHARWAD.
...APPELLANT
(BY SRI J. S. SHETTY, ADVOCATE)
AND:
1. SRI. RAJENDRA S/O. LAXMANRAO HUBBALLI,
AGE: 44 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST: DHARWAD-580020.
2. SRI. VIVEKANAND S/O. RAMESH HUBBALLI,
AGE: 42 YEARS, OCC: AGRICULTURE/BUSINESS,
R/O. HEBBALLI, TQ AND DIST DHARWAD-580020.
3. SRI. MAYUR S/O. RAMESH HUBBALLI,
Digitally signed AGE: 40 YEARS, OCC: AGRICULTURE/BUSINESS,
by MANJANNA
E R/O. HEBBALLI, TQ AND DIST DHARWAD-580020.
Location: HIGH ...RESPONDENTS
COURT OF
KARNATAKA (BY SRI. H. M. DHARIGOND, ADV. FOR R1;
NOTICE TO R2 & R3 SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, PRAYING
TO ORDER DATED 03.08.2023 PASSED ON I.A.NO. II AND IV IN
O.S.NO. 260/2022 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND CJM, DHARWAD, MAY KINDLY BE SET ASIDE WITH COST
THROUGHOUT IN THE IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 104478 of 2023
JUDGMENT
Heard learned counsel for the appellant and learned
counsel for the respondents.
2. The appellant has filed this appeal under Order
XLIII Rule 1(r) of the Code of Civil Procedure, 1908 ("CPC"
for short) seeking to set aside the order dated 03.08.2023
passed on I.A.Nos.II and IV in O.S.No.260/2022 by the III
Additional Senior Civil Judge and CJM, Dharwad ("the Trial
Court" for short).
3. For the sake of convenience, the parties are
referred to as they are referred to in the suit before the Trial
Court.
4. Appellant is defendant No.1, respondent No.1 is
plaintiff and respondent Nos.2 & 3 are defendant Nos.2 & 3.
5. Brief facts of the case of the plaintiff are as
under:
6. Defendant No.1 is the father of plaintiff,
defendant No.2, and defendant No.3. The suit scheduled
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properties are joint family properties and the plaintiff and
defendants have 1/4th share each in the schedule properties.
But defendant Nos.1 to 3 have not given any share to the
plaintiff in the suit schedule properties, though there was
partition between defendant Nos.1 to 3 in respect of the
scheduled properties. Now defendants are trying to alienate
the suit schedule properties to the prospective purchasers.
Hence, the plaintiff has filed the suit in O.S.No.260/2022 for
partition and separate possession of suit scheduled
properties and also filed I.A.No.II under Order XXXIX Rules 1
and 2 of CPC. The Trial Court considering the material placed
before it, granted temporary injunction against defendants
restraining them from alienating the suit schedule properties.
Aggrieved by the said order the appellant-defendant No.1
filed present appeal.
7. In this case, the defendants have not disputed
the relationship between the parties, location, extent and the
nature of the properties. However, defendants have denied
the contention of plaintiff that, suit schedule properties-A,
item No.1, property bearing Sy.No.150 measuring 4 acres 39
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guntas is self acquired property of defendant No.1 and hence
plaintiff has no share in the said property. Defendants
admitted that, the suit schedule properties bearing
Sy.No.539/1/2, Sy.No.539/5 and Sy.No.539/4 are the joint
family properties. Defendant No.1 has contended that he
never tried to alienate the schedule properties, hence, he
prayed to allow the appeal and set aside the impugned
order.
8. Heard learned counsel for the parties, perused
the material available on record. The points that would arise
for Court's consideration in this appeal are as follows:
i. Whether defendant No.1 made out a primary
case in his favour?
ii. Whether the balance of convenience tilts in
favor of defendant No.1?
iii. Who will suffer irreparable injury, in case grant
of temporary injunction or otherwise.
9. As per the case of the plaintiff, defendant No.1 is
his father, defendant Nos.2 and 3 are his brothers and suit
schedule properties are joint family properties of plaintiff and
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defendants. It is the contention of plaintiff that defendant
No.1 already allottes shares in the schedule properties in
favour of defendant Nos.2 & 3, but he has not allotted any
share in favour of plaintiff. Now, defendant No.1 is denying
to allot share in the suit schedule properties in favour of
plaintiff. However, defendant No.1 has specifically contained
that, item No.1 of the schedule properties is his self acquired
property and the remaining properties are the joint family
and ancestral properties.
10. Learned counsel for defendant No.1 vehemently
contended that, he made an application seeking permission
to sell the property bearing Sy.No.150/1 of Maradagi village,
i.e., suit schedule item No.1 as this property exclusively
belonged to him and he had purchased said property by
registered sale deed and he is in dire need of money for
discharge of his debts. The learned counsel further submitted
that, the documents produced by plaintiff himself clearly
establishes that item No.1 of suit schedule-A has been
purchased by the 1st defendant himself along with sister and
it is his exclusive properties. Apart from that, it is also
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admitted by plaintiff himself that suit schedule item Nos.2 to
4 properties were purchased by father of the 1st defendant
and they are his self acquired properties and on the death of
Laxmanrao Hubballi, the same have been succeeded by the
1st defendant under section 8 of the Hindu Succession Act. As
such, these Item Nos.2 to 4 of suit schedule properties are
also absolute properties of the 1st defendant and during his
lifetime, the plaintiff has no right over these properties.
11. The learned counsel relied upon the following
decisions :
i. Uttam Vs. Saubhag Singh and others1
ii. Commissioner of Wealth Tax, Kanpur
and others Vs. Chander Sen and others2
iii. Sunil Kumar and another Vs. Ram
Parkash and others3
12. Perused the ratio laid down by the Hon'ble Apex
Court in the cases of Uttam's, the Commissioner of
Wealth Tax and in the case of Sunil Kumar stated supra,
(2016) 4 SCC 68
(1986) 3 SCC 597
(1988) 2 SCC 77
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there is no dispute with regard to principle enumerated in
those decisions.
13. The learned counsel contended that the
coparceners are not entitled to seek permanent injunction
restraining the Kartha from any such alienation.
14. Admittedly, sons and father are the coparceners
having right in the suit properties. Normally, no injunction
against the Karta of the joint Hindu family can be granted
restraining him from alienating the coparcenery property. It
is a trite law that in a partition suit, plaintiff may seek
temporary injunction to save the property from alienation.
15. In view of the facts, circumstances and the
contentions raised by both the parties, it is just and
necessary to analyze Order XXXIX Rules 1 & 2 of CPC.
16. Cases in which temporary injunction may be
granted. Where in any Suit it is proved by affidavit or
otherwise.
(a) that any property in dispute in a suit is in
danger of being wasted, damaged or
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alienated by any party to the suit, or
wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to
remove or dispose of his property with a
view to defrauding his creditors,
(c) that the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute
in the suit,
17. From the perusal of proposition, it appears that,
the Court may by Order grant a temporary injunction to
restrain such act, or make such other Order for the purpose
of staying and preventing the wasting, damaging, alienation,
sale, removal or disposition of the property or dispossession
of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further orders.
18. Grant of interim injunction during the pendency of
legal proceeding is a matter resting with the exercise of
discretion of the Court. The decision, whether or not to grant
interim injunction, has to be taken, at a time when the
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existence of the legal right assailed by the plaintiff and its
alleged violation are both contested and uncertain and
remain uncertain till they are established at the trial on
evidence. Relief by way of interim injunction is granted to
mitigate the risk of injustice to the plaintiff during the period
before that uncertainty could be resolved. The object of
interim injunction is to protect plaintiff against injury by
violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial. The need
for such protection has, however, to be weighed against the
corresponding need for the defendant to be protected
against injury resulting from preventing his exercising legal
right for which he could not adequately be compensated. The
Court must weigh the need of interim injunction and
determine where balance of convenience lies in order to
protect defendant while granting an interim injunction in his
favour. The Court can require and call upon the plaintiff to
furnish an undertaking so that the defendant can adequately
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be compensated, if the uncertainty were resolved in his
favour, at the trial.
19. Jurisdiction of the Court to interfere with an order
of interim or temporary injunction is purely equitable and,
therefore, the Court on being approached will, apart from
other consideration, also look at the conduct of the party
invoking the jurisdiction of the Court. The Court may refuse
to interfere unless his conduct was free from blemish. Since
the relief is wholly equitable in nature the party invoking the
jurisdiction of the Court has to show that he himself was not
at fault and that he himself was not responsible for brining
out the state of things complained of and further that he was
not unfair or inequitable in his dealing with the party against
whom he was seeking relief. The conduct of the plaintiff
must be fair and honest. These considerations will arise not
only in respect of person who seeks an order of injunction
but also the defendant who approaches the Court for
vacating the ad-interim or temporary injunction order
already granted in the pending proceedings.
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20. The grant of temporary injunction primarily
depends on the existence of prima facie case in determining
such question.
21. The object of interim injunction is to keep things
in status-quo, so that if at the hearing, when the plaintiff
obtained judgment in his favour, the defendant will in the
meanwhile have to be prevented from dealing with the
property in such way as to make that judgment ineffectual.
An order of temporary injunction maintaining the status-quo
may properly issue whenever the question of law or fact, to
be ultimately determined in a suit, is grave and different and
the injury likely to be caused to the party moving for
injunction will be imminent, and certain; and great hardship
will be caused if relief is denied. The party seeking the aid of
the Court must satisfy that there is a serious question to be
tried. At the hearing he should satisfy that he is entitled to
relief sought for by him or that he has a prima facie case to
go to the trial; that the Court's interference is necessary to
protect him from that species of injury which the Court calls
irreparable 'before his legal rights is established at the trial
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and that of comparative mischief or the inconvenience which
is likely to arise from withholding the injunction will be
greater than that of which is likely to arise from granting it.
22. The relief of grant of interim injunction is both
temporary and discretionary. In cases of interim injunction,
in aid of the rights of the parties seeking it, the Court will
first consider whether the applicant has established the
prima facie case, the expression prima facie in this context
being understood in the sense that it is not frivolous or
vexatious, but involves a serious matter to be investigated,
the rules guiding that administration of this form of
discretionary relief admit of being formulated in the following
three sequential proportions. (1) Discover whether the
plaintiff's case is frivolous or vexatious (2) If it is not, decide
in whose favour the balance of convenience lies, and (3) if
the balance, of convenience is fairly even, then it would be
proper to take into account, in tipping the balance the
relevant strength of each party's case, as revealed by the
affidavit evidence adduced on the hearing of the application.
While considering the question as to the balance of
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convenience between the parties and the imminent and
uncompensatable disadvantage or some irreversible
determent that may result to the applicant by denial of the
reliefs. It is not necessary for the Court to find a case for the
applicants which would entitle them to relief at all events.
But it is quite sufficient if the Court finds that the case shows
that there are substantial questions to be investigated and
the matter has to be preserved in status quo until the
question could be finally disposed of.
23. Perused the material available on record, the
contention raised by the plaintiff and defendants, more
particularly quantum of share and the rights of the plaintiffs
over the suit schedule properties. The plaintiff has
specifically pleaded that defendant No.1 is his father,
defendant Nos.2 & 3 are his brothers and the suit schedule
properties are joint family ancestral properties of plaintiff
and defendants. Defendant No.1 being the father of plaintiff
allotted share in favour of brothers' of plaintiff, but he did
not allot any share in favour of the plaintiff. Hence, no share
has been allotted to plaintiff in the suit schedule property. As
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defendant No.1 has specifically pleaded that the suit
schedule property bearing Sy.No.150/1 is his self acquired
property. Hence, the burden cast on defendant No.1 to prove
whether, Item No.1 property is his self acquired property or
joint family property of defendant No.1 defendant No.2 and 3
and plaintiff. It requires a full fledge trial. At this juncture,
only prima facie case has to be seen. Hence, if defendant
No.1 allowed to alienate Item No.1 of suit schedule-A
property, more hardship and injustice would be caused to
the plaintiff than defendant No.1. Balance of convenience
also tilts in his favour than defendant No.1. If temporary
injunction is not granted restraining defendant No.1 from
alienating suit Item No1 of schedule-A property, more
hardship would be caused to the plaintiff than defendant
No.1. If defendant No.1 is allowed to alienate schedule
property then, it will lead to multiplicity of proceedings, if the
plaintiff is succeeds in the suit. Hence, there is no merit in
the contention of appellant-defendant No.1.
24. The ratio laid down in the decision cited supra
and the principles enumerated in those decisions are not
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disputed. But, those decisions are not aptly applicable to the
case on hand, since defendant No.1 has to prove his
contention and it requires full fledged trial.
25. Accordingly, the appeal is dismissed
In view of the disposal of the appeal, pending
applications, if any, stand disposed off.
Sd/-
JUDGE
EM/ct-an
