Karnataka High Court

A Fazeel Pasha vs Sri M M Manjunath on 3 June, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                             NC: 2024:KHC:18852
                                                           MFA No. 3131 of 2019




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 3RD DAY OF JUNE, 2024

                                                BEFORE
                               THE HON'BLE MR JUSTICE RAVI V HOSMANI
                       MISCELLANEOUS FIRST APPEAL NO. 3131 OF 2019 (CPC)
                       BETWEEN:

                             A. FAZEEL PASHA,
                             S/O LATE ABDULLA KHAN,
                             AGED ABOUT 51 YEARS,
                             R/AT NO.28,
                             3RD MAIN ROAD,
                             SHAMPUR MAIN ROAD,
                             CHIKKANNA LAYOUT,
                             BANGALORE - 45.
                                                                   ...APPELLANT
                       (BY SRI. SAILESH S.K., ADVOCATE)

                       AND:

                       1.    SRI. M.M. MANJUNATH,
Digitally signed by          S/O LATE M.C. MRUTHYUNJAYA,
GEETHAKUMARI
PARLATTAYA S                 AGED ABOUT 49 YEARS.
Location: High Court
of Karnataka
                       2.    SRI. M. PRAKASH,
                             S/O LATE M.C. MRUTHYUNJAYA,
                             AGED ABOUT 46 YEARS.

                             BOTH R/AT NO.85,
                             8TH MAIN, 17TH CROSS,
                             ISRO LAYOUT,
                             BANGALORE - 560 078.
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                                                      NC: 2024:KHC:18852
                                                 MFA No. 3131 of 2019




3.   SMT. PARVATHAMMA,
     W/O M.C. RAJANNA,
     AGED ABOUT 71 YEARS.

4.   SMT. DAKSHAYANI,
     W/O SURESH,
     AGED ABOUT 51 YEARS.

     BOTH R/AT NO.44,
     14TH CROSS, SANJAYNAGAR,
     BANGALORE - 560 080.
                                                         ...RESPONDENTS
(BY SRI. R.R. SADASHIVAPPA, ADVOCATE FOR R1, R3 AND R4;
    V/O DATED 02.11.2022, NOTICE TO R2 IS
    DISPENSED WITH)

        THIS MFA IS FILED U/O. 43 RULE 1 OF CPC, AGAINST
THE ORDER DATED 28/03/2019, PASSED ON IA.NO.II, IN O.S.
NO.5968/2017, ON THE FILE OF THE LX ADDITIONAL CITY
CIVIL     &    SESSIONS           JUDGE,      BENGALURU          (CCH-61),
DISMISSING THE IA.NO.II, FILED U/O.XXXIX RULE 1 AND 2 OF
CPC.

        THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

                                 JUDGMENT

Challenging order dated 28.03.2019 passed by

LX Additional City Civil and Sessions Judge, Bengaluru

(CCH-61) in O.S.No.5968/2017 on I.A.No.1 filed under Order

XXXIX Rule 1 and 2 of CPC, this appeal is filed.

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2. Sri Sailesh S. K., learned counsel for appellant

submitted that appellant was plaintiff before trial Court in suit

for repossession and mandatory injunction to restrain

defendants from construction over suit schedule property etc.

3. It was submitted, in said suit, plaintiff had filed

I.A.No.1 under Order XXXIX Rule 1 and 2 of CPC seeking order

of temporary injunction restraining defendants from putting up

construction over suit schedule property bearing no.47, 2nd

main road, C.K.C. Garden, Bengaluru-27, measuring East to

West 30 ft. and North to South 20 ft. with A.C.Sheet roofed

structure standing thereon with electricity connection, during

pendency of suit.

4. It was submitted, in affidavit filed in support of

application, it was stated that said suit schedule property was

originally belonged to Late M.C.Mruthyunjaya father of

defendants no.1 and 2, who had executed an agreement of sale

dated 28.04.1986 in favour of plaintiff in respect of suit

schedule property for total sale consideration of Rs.72,000/-

and after receiving advance of Rs.40,000/-. It was further

stated that plaintiff was put in possession in part performance

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of agreement of sale dated 28.04.1986. It was submitted that

plaintiff had put up construction on suit schedule property.

However, during 2012, it was alleged that defendants colluded

with each other and filed two eviction cases in respect of two

portions of property which were adjoining suit schedule

property herein and obtained decree of eviction. In guise of

executing said decree, plaintiff was evicted from his two portion

i.e., suit schedule property on 13.05.2015 without due process

of law. Therefore, plaintiff got issued legal notice on

12.05.2016 and thereafter filed present suit. It was submitted

that said averments and assertion sufficiently indicated

existence of prima facie case.

5. Learned counsel for appellant further submitted that

in case order of restrain is not granted, plaintiff would suffer

irreparable loss and hardship as disposal of suit would take

considerable time and in case defendants were permitted to put

up construction over property, same would change nature of

property and therefore, balance of convenience as well as

irreparable loss and injury were also in favour of plaintiff. Such

being case, trial Court under impugned order is not justified in

observing that plaintiff has not made prima facie case and

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therefore impugned order is untenable and calls for

interference.

6. On other hand, Sri R.B.Sadashivappa learned

counsel for respondents no.1, 3 and 4 opposed appeal and

submitted that even as per plaintiff, alleged agreement of sale

was executed in year 1986 i.e., 28.04.1986 by Sri M.C.

Mruthyunjaya who had died in year 2001. It was submitted

defendants had denied plaintiff ever being in possession of suit

schedule property. Even if submission of learned counsel for

plaintiff that prayer for specific performance of agreement was

sought by amendment, there would be no explanation for filing

suit after 30 years. It was also submitted that there was

absolute no whisper about plaintiff being in possession in

agreement of sale and no such contention was taken by plaintiff

that he was in possession in pursuant to agreement of sale in

eviction proceedings in respect of other portions which spanned

more than decade.

7. It was submitted that defendants were owners and

in possession of suit schedule property and trial Court has

rightly refused to grant injunction restraining them in

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exercising rights of ownership. It was submitted that order was

in discretionary and hence, scope of interference of appeal was

limited and sought for dismissal.

8. Heard learned counsel and perused impugned order.

9. Only point that arises for consideration is:

"Whether order impugned calls for interference in appeal?"

10. Hon'ble Supreme Court in Mohd. Mehtab Ibrahim

Khan vs. Khushnuma Ibrahim Khan1 has laid down scope of

interference with discretionary orders by Appellate Court. It is

held as under:

"15. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a

2013 (9) SCC 221

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discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.[3] Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation:

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise

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of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'." The appellate judgment does not seem to defer to this principle."

16. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned Trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in the case of Wander Ltd. (supra). Accordingly, we set aside the order dated 09.10.2012 passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13.04.2012 of the learned Trial Judge we request the learned Trial Judge, or such other court to which the case may, in the mean time, have been transferred to dispose of the main suit as expeditiously as its calendar would permit with the expectation that the same will be possible within a period of six months from the date of receipt of this order. The appeal shall stand disposed of in terms of the above.

11. In above decision, Hon'ble Supreme Court has laid

down that only in case of orders / finding on any points are

untenable there were scope for interference in appeal and even

if view taken by Trial Court was one of possible views, there

cannot be interference. In light of said law, perusal of

impugned order would indicate that learned trial Judge has on

consideration of plaint and affidavit averments filed in support

of application as well as documents produced observed as

follows.

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It is pertinent to note that, if the contention of the plaintiff admitted that, the father of the defendants have executed the agreement of sale dated 28.04.1986, the plaintiff has not caused any notice to the father of the defendant to execute the sale deed and also after the death of the father of the defendants, the plaintiff ha also not caused the defendants to execute the sale deed. Hence, the contention of the plaintiff at this stage, cannot be believable. More so, admittedly, the defendants are the absolute owners and in possession of the same, the Court cannot pass the order against the owner restraining them from constructing over the suit schedule property. Therefore, I hold that plaintiff has failed to make out a prima facie case.

12. Said observation would indicate that after applying

mind on facts, learned trial Judge has come to conclusion that

suit filed in year 2017 in respect of agreement of sale dated

28.04.1986, without issuance of any notice, in meanwhile,

would not substantiate prima facie case. For lack of any

assertion about present suit property in earlier proceeding as

well as for belated filing and failure to mention any substantial

reasons for filing suit after long period of time, learned trial

Judge has rightly held that plaintiff has failed to make out

prima facie case. Therefore, I do not find any justifiable reason

to interfere with impugned order.

13. However, interest of both parties would be