Smt. Lakshmamma K M vs Muniraju
2024 Latest Caselaw 12940 Kant

Karnataka High Court

Smt. Lakshmamma K M vs Muniraju on 10 June, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                             NC: 2024:KHC:20038
                                                           MFA No. 3432 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 10TH DAY OF JUNE, 2024

                                               BEFORE
                              THE HON'BLE MR JUSTICE RAVI V HOSMANI
                      MISCELLANEOUS FIRST APPEAL NO. 3432 OF 2024 (CPC)
                      BETWEEN:

                      1.    SMT. LAKSHMAMMA K.M.,
                            W/O LATE RAMANJINAPPA,
                            AGED ABOUT 70 YEARS,

                      2.    SRI. B.R MANJUNATH,
                            SON OF LATE RAMANJINAPPA,
                            AGED ABOUT 53 YEARS,

                      3.    SRI. RAVI PRASAD B.R.,
                            S/O LATE RAMANANJANAPPA,
                            AGED ABOUT 48 YEARS,

                      4.    SRI. ANANTHA KUMAR B.R.,
                            S/O LATE RAMANAJANAPPA
Digitally signed by         AGED ABOUT 41 YEARS,
GEETHAKUMARI
PARLATTAYA S                ALL ARE RESIDING AT
Location: High              NO.214, 5TH MAIN,
Court of Karnataka          3RD CROSS, BELLARY ROAD,
                            BANGALORE - 560 092.
                                                                  ...APPELLANTS
                      (BY SRI JAGADISH K. N., ADVOCATE)

                      AND:

                      1.    MUNIRAJU,
                            S/O LATE PATEL NARASIMHAIAH,
                            AGED ABOUT 75 YEARS,
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                                       NC: 2024:KHC:20038
                                    MFA No. 3432 of 2024




2.   NARAYANASWAMY,
     SON OF LATE PATEL NARASIMHAIAH,
     AGED ABOUT 69 YEARS,

3.   R. RAJESH,
     SONOF LATE PAPANNA,
     GRAND SON OF LATE PATEL NARASIMAIAH,
     AGED ABOUT 45 YEARS,

     ARE R/AT 5TH MAIN,
     BYATARAYANAPURA,
     YELAHANKA HOBLI,
     SAHAKARNAGAR POST,
     BANGALORE - 92.

4.   CHANDRASHEKAR,
     SON OF LATE ANJINAPPA,
     AGED ABOUT 63 YEARS,

5.   RAMA MURTHY,
     SON OF LATE ANJANAPPA,
     AGED ABOUT 58 YEARS,

6.   JAYRAMA,
     SON OF LATE ANJINAPPA,
     AGED ABOUT 48 YEARS,

7.   ASHWATHANARAYANA,
     SON OF LATE CHINAPPA,
     AGED ABOUT 56 YEARS,

     RESPONDENT NO.4 TO 7 ARE
     R/AT 5TH MAIN E CROSS,
     BYATARAYANAPURA VILLAGE,
     YELAHANKA TALUK,
     BANGALORE NORTH TALUK.
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                                               NC: 2024:KHC:20038
                                             MFA No. 3432 of 2024




8.   BASAVARAJ,
     SON OF LATE CHANNAPPA,
     AGED ABOUT 62 YEARS,
     RESIDING AT CHIKKARAYAPANAHALLI VILLLAGE,
     MALEKOTE POST,
     THUBAGARE HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT.
                                        ...RESPONDENTS
(BY SRI DHANANJAYA V JOSHI, SENIOR COUNSEL FOR
    SRI SRIKANTH S., ADVOCATE FOR C/R-5 & R6;
    SRI B.SRINIVASAREDDY & SMT.ANITHA K.S., ADVOCATES
    FOR C/R7)

      THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 30.03.2024 PASSED ON
I.A.NO.1 IN OS.NO.6100/2023 ON THE FILE OF THE 24TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH.NO.6 REJECTING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.

      THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Challenging order dated 30.02.2024 passed by 24th

Additional City Civil and Sessions Judge (CCH-6), Bengaluru in

O.S.no.6100/2023 on I.A.no.1/2023 filed under Order XXXIX

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

NC: 2024:KHC:20038

2. Sri Jagadish K.N., learned counsel for appellant

submitted that appellant was plaintiff in suit filed for specific

performance of agreement of sale, for declaration etc. In said

suit, plaintiffs had filed I.A.no.1/2024 for temporary injunction

restraining defendants from alienating suit schedule property.

In affidavit filed in support of application, it was stated that

during lifetime of their father-Patel Narasimhaiah, who was

father of defendants no.1 to 3, had entered into agreement of

sale with plaintiffs' father-Ramanjinappa on 28.04.1986,

agreeing to purchase land bearing Sy.no.70/2 measuring 1

Acre 3 guntas of Byatarayanapura village, Yelahanka Hobli,

Bengaluru taluk. And that out of total sale consideration of

Rs.65,000/-, an advance of Rs.50,000/- was paid. Thereafter

plaintiffs' father died on 24.12.2004.

3. It was submitted, property in question was ancestral

property of plaintiffs, belonging to their grandmother-

Smt.Munivenkatamma, who had not alienated said property to

anyone, but as there were mutations, plaintiffs had challenged

same in RA.no.283/2015-16 which came to be dismissed. Said

order was questioned in Revision Petition wherein Deputy

Commissioner had granted an interim order of stay.

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4. In meanwhile, having discovered agreement of sale,

plaintiffs had filed present suit. Since defendants were in

process of entering into agreement of sale with regard to

property, they had sought for order of temporary injunction

restraining alienation. Said application was with view to ensure

status quo during pendency of suit. It was submitted that

reasons assigned by trial Court for rejection were wholly

untenable as agreement of sale was not within knowledge of

plaintiffs and was discovered only in year 2019. It was further

submitted, mutation entries based on earlier partition were also

highly questionable as mutation was got effected after several

decades.

5. Such being case, without proper consideration, order

impugned was passed and same calls for interference. It was

submitted that entries in revenue records based on partition

were not within knowledge of plaintiffs as they were not parties

to same.

6. On other hand, Sri Dhananjaya V. Joshi, learned

counsel for respondent opposes same.

7. Heard learned counsel and perused impugned order.

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8. Only point that arises for consideration is:

"Whether order impugned calls for interference in appeal?"

9. Admittedly, this is an appeal against discretionary

order passed under provisions of Order XXXIX Rules 1 and 2 of

CPC. Hon'ble Supreme Court in Mohd. Mehtab Ibrahim Khan

vs. Khushnuma Ibrahim Khan1 has defined scope of

interference on discretionary orders by appellate Court. In its

decision in, it is held as under:

"20. 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 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 emphasised 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. [Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727]

2013 (9) SCC 221

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21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation: (Wander Ltd. case [Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727] , SCC p. 533) "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) (P) Ltd. v. Pothan Joseph [AIR 1960 SC 1156 : (1960) 3 SCR 713] : (AIR p. 1159, para 9) '9. ... These principles are well established; but, as has been observed by Viscount Simon in Osenton (Charles) & Co. v. Johnston [1942 AC 130 : (1941) 2 All ER 245 (HL)] : (AC p. 138) "... The law as to the reversal by a Court of Appeal of an order made by [a] Judge below in the exercise 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."

10. Perusal of order impugned would indicate that

learned trial Judge was led by two circumstances for passing

impugned order. Firstly, it is observed that plaintiffs had filed

suit for specific performance of agreement of sale dated

NC: 2024:KHC:20038

28.04.1986 whereas plaintiffs were also staking claim to suit

properties as their ancestral properties, which amounted to

blowing hot and cold. It was secondly observed that there was

history of revenue litigation and previous suit in which there

was no mention of agreement of sale or any claims made on

said basis. As per trial Court, delay of 37 years in approaching

Court was not properly explained.

11. First ground urged that agreement of sale was not

within knowledge of plaintiffs would not appeal to reason as

agreement of sale was admittedly entered between plaintiffs'

father and father of defendants and plaintiffs' father died only

in year 2004, without claiming any rights under said agreement

of sale until then. Insofar as mutation entries, even as per

plaintiffs, their Revision petition was pending before Deputy

Commissioner. Admittedly, order passed is only an interim

order based on prima facie consideration. Order passed is after

framing proper points for consideration adverting to pleadings

of parties and documents made available.

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In view of above, I do not find any justifiable reason to

interfere with order impugned. Consequently, appeal is

dismissed by answering point for consideration in negative

Taking note of circumstances, it would be appropriate to

direct parties to co-operate for early disposal. Trial Court to

expedite disposal of suit.

Sd/-

JUDGE

MKM