Karnataka High Court
Smt M Varalakshmi vs Mr D.R. Rajagopal on 4 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:19105
MFA No. 7768 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 7768 OF 2023 (CPC)
BETWEEN:
SMT. M.VARALAKSHMI,
D/O MANDLI CHENNAIAH,
AGED ABOUT 41 YEARS,
R/AT NO.192, 4TH B CROSS,
JAKKUR LAYOUT, YELAHANKA HOBLI,
BANGALORE 560 064.
PRESENTLY AT SY. NO.45/2,
OFF BASAVANAHALLI VILLAGE,
BAVINAHALLI POST, THONDABAVI HOBLI,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT,
REP BY HER HUSBAND / G.P.A. HOLDER NAMELY
SRI. B. CHANDRSEKHAR.
...APPELLANT
[BY SRI NANJUNDAPPA D. V., ADVOCATE (PH)]
AND:
1. MR. D.R. RAJAGOPAL,
Digitally signed by S/O LATE D. RAMANNA AND SMT. D.R. SEETHAMMA,
GEETHAKUMARI AGED ABOUT 56 YEARS,
PARLATTAYA S RA/T NO. 9/1, 1ST MAIN ROAD,
Location: High 2ND BLOCK, THYAGARAJANAGAR,
Court of Karnataka BANGALORE 560 028.
2. MR. GANGADHARAPPA,
S/O LATE VENKATAPPA,
AGED ABOUT 56 YEARS,
3. SMT. SHANTHAMMA,
W/O GANGADHARAPPA,
AGED ABOUT 50 YEARS,
4. MR. VENKATESH,
S/O GANGADHARAPPA,
AGED ABOUT 23 YEARS
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NC: 2024:KHC:19105
MFA No. 7768 of 2023
5. MR. NAVEEN,
S/O GANGADHARAPPA,
AGED ABOUT 21 YEARS,
RESPONDENTS NO.2 TO 5 ARE
R/AT BASAVANAHALLI VILLAGE,
BAVINAHALLI POST, THONDEBAVI HOBLI,
GOWRIBIDANUR TALUK,
CHICKKABALLAPURA DISTRICT.
...RESPONDENTS
[BY SRI RAGHAVA P., ADVOCATE FOR R1 (PH);
NOTICE TO R2 TO R5 IS D/W]
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 30.10.2023 PASSED ON I.A.NO.1
IN OS.NO.213/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, GOWRIBIDANUR, REJECTING THE I.A. FILED UNDER ORDER
39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 30.10.2023 passed by Senior
Civil Judge and J.M.F.C., Gowribidanur, in O.S.no.213/2022 on
I.A.no.1 filed under Order XXXIX Rule 1 and 2 of C.P.C., this
appeal is filed.
2. Sri Nanjundappa D.V., learned counsel for appellant
submitted that appellant was plaintiff in O.S.no.213/2022 filed
seeking for specific performance of Agreement of Sale dated
15.09.2021 in respect of suit schedule properties executed by
defendants.
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3. In said suit, I.A.no.1 was filed under Order XXXIX
Rule 1 and 2 of C.P.C., seeking for temporary injunction
restraining defendant no.1 from alienating suit schedule
properties during pendency of suit. On said application, trial
Court has passed impugned order rejecting application on
wholly untenable reasons. It was submitted that in support of
application, appellant/plaintiff had filed copy of Agreement of
Sale, Record of Rights, Mutation Register, Release Deed,
General Power of Attorney and copy of Legal Notice issued prior
to filing of suit. However, while passing impugned order none of
them are adverted to. It was further submitted that without
assigning proper reasons, trial Court has arrived at untenable
conclusion. In view of above, impugned order would call for
interference.
4. It was submitted, merely on ground that Agreement
of Sale in question is not registered and separate receipts for
having paid 90% of sale consideration not produced would not
be appropriate, since payment was referred to in recitals.
Therefore, reasons assigned were irrelevant, consequently
conclusion based on said observation would be perverse and
calling for interference. It was further submitted though
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defendant no.1 had entered appearance, he had neither filed
written statement nor objections to I.A.no.1, but had orally
opposed application. Despite same, trial Court passed
impugned order, which would be unjustified.
5. On other hand, Sri Raghava P., learned counsel for
respondent/defendant no.1 sought to oppose appeal. It was
submitted, though defendant no.1 had not filed written
statement or objections at that time, same was filed
subsequent to passing of impugned order. It was further
submitted, defendant no.1 had vehemently denied execution of
Agreement of Sale and stated that signatures of defendant no.1
on Agreement of Sale and General Power of Attorney etc. were
forged. To said effect, defendant no.1 has also filed complaint
before Police and proceedings were initiated. In view of above,
order impugned holding appellant/plaintiff had failed to
establish prima facie case would be justified and sought
dismissal of appeal.
6. In reply, learned counsel for appellant/plaintiff
submitted that said contentions were neither urged nor any
records produced to substantiate same. Therefore, same
cannot be considered for testing validity of order impugned.
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7. Heard learned counsel and perused impugned
order.
8. Point that arises for consideration is:
"Whether order impugned calls for
interference?"
9. From above, it is not in dispute that
appellant/plaintiff had filed suit against respondent/defendant
no.1 for specific performance of alleged Agreement of Sale
dated 15.09.2021. As per Agreement of Sale, defendants are
stated to have agreed to alienate suit schedule properties in
favour of appellant/plaintiff for total sale consideration of
Rs.25,00,000/-. Agreement of Sale would record receipt of
advance amount of Rs.15,00,000/-.
10. Perusal of impugned order would indicate
observation by trial Court that appellant/plaintiff had failed to
make out a strong prima-facie case by not producing any
receipts etc. for having paid 90% of sale consideration. Said
observation would be contrary to Agreement of Sale, General
Power of Attorney and Affidavit produced before it.
11. It has also observed that Agreement of Sale is not
registered, without stating whether registration was a
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requirement of law or otherwise. An Agreement of Sale without
delivery of possession would not require compulsory
registration. Therefore, observation would be untenable.
12. Insofar as finding of trial Court on points no.2 and 3
namely regarding balance of convenience and irreparable injury
also trial Court is weighed by its finding on point no.1 regarding
prima facie case, thus impugned order would be wholly
untenable on ground of failure to appreciate documents and
contentions placed before it properly.
13. Hence, answering point for consideration partly in
affirmative, appeal is allowed. Impugned order dated
30.10.2023 passed on I.A.no.1 in O.S.no.213/2022 by Senior
Civil Judge and J.M.F.C., Gowribidanur, is set-aside.
Matter is remanded back to trial Court for fresh
consideration by keeping open all contentions of both parties.
Trial Court shall pass orders afresh on I.A.no.1 within a period
of two weeks.
Learned counsel for appellant/plaintiff undertakes to file
application for advancement of suit for above purpose on or
before 15.06.2024. Reserving liberty to respondent/defendant
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no.1 also to move application for advancement within said
time, trial Court or In-charge Court shall be directed to dispose
of application afresh within a period of two weeks from said
date after hearing both parties.
Until disposal of I.A.no.1, parties are directed to maintain
status-quo existing as on today.
Sd/-
JUDGE
GRD
