Karnataka High Court
M/S Nakshatra Upscale Estates Projects ... vs Sri Murali Mohan on 26 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:23526
MFA No. 619 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.619 OF 2024 (CPC)
BETWEEN:
1. M/s. NAKSHATRA UPSCALE ESTATES
PROJECTS PVT. LTD.,
OFFICE AT NO.278, 13TH CROSS,
4TH MAIN, DOLLARS COLONY,
RMV EXTENSION, BENGALURU - 560 094.
REP. BY ITS DIRECTORS
APPELLANTS NO.2 AND 3
2. MR. K.S. MANJUNATH NAIDU,
DIRECTOR IN M/s. NAKSHATRA UPSCALE
ESTATES PROJECTS PVT. LTD.,
AGED ABOUT 43 YEARS,
S/O K.SUBRAMANYAM NAIDU,
R/AT NO.178, 13TH B MAIN ROAD,
GOKULA 1ST STAGE, 1ST PHASE,
MATHIKERE, BENGALURU - 560 054.
3. MR. B.R. CHANDRASHEKAR,
DIRECTOR OF M/s. NAKSHATRA UPSCALE
ESTATES PROJECTS PVT. LTD.,
AGED ABOUT 46 YEARS,
S/O LATE B. RADHAKRISHNANAMA NAIDU,
Digitally signed by R/AT NO.15, RMV 2ND STAGE,
GEETHAKUMARI 4TH BLOCK, 3RD CROSS,
PARLATTAYA S BENGALURU - 560 094.
Location: High
Court of Karnataka ...APPELLANTS
[BY SMT.ADINATHA NARDE, ADVOCATE (PH)]
AND:
1. SRI MURALI MOHAN,
AGED ABOUT 34 YEARS,
S/O SRI M. VARADARAJU,
R/AT NO.215, AMRUTHAHALLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
2. MR. V.RAJESH,
AGED ABOUT 31 YEARS,
S/O SRI M.VARADARAJU,
R/AT NO.215, AMRUTHAHALLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
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NC: 2024:KHC:23526
MFA No. 619 of 2024
3. MR. KARTHIK,
AGED ABOUT 27 YEARS,
S/O SRI M.VARADARAJU,
R/AT NO.215, AMRUTHAHALLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
4. MR. VARADARAJU,
AGED ABOUT 57 YEARS,
S/O LATE MUNIGURAPPA,
R/AT NO.215, AMRUTHAHALLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
5. MRS. LAKSHMI @ DHANALAKSHMI,
AGED ABOUT 51 YEARS,
W/O LATE SRINIVASA BABU,
R/AT AMRUTHAHALLI,
YELAHANKA HOBLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
6. MISS S. MYTHRI @ MEGHANA,
AGED ABOUT 21 YEARS,
D/O LATE SRINIVASA BABU,
R/AT AMRUTHAHALLI,
YELAHANKA HOBLI,
SAHAKARA NAGAR POST,
BANGALORE - 560 092.
7. MISS USHA RANI @ USHA,
AGED ABOUT 20 YEARS,
D/O LATE SRINIVASA BABU,
R/AT AMRUTHAHALLI,
YELAHANKA HOBLI,
SHAKARANAGAR POST,
BANGALORE - 560 092.
8. MR. N. SUBRAMANI,
AGED ABOUT 53 YEARS,
S/O V. NAGARAJAPPA,
R/AT NO.5, VENKATESHWARA GRAMA,
JAKKUR POST, YELAHANKA HOBLI,
BANGALORE - 560 064.
...RESPONDENTS
[BY SRI MANJUNATHA, ADVOCATE FOR R1 & R3 (AB);
SRI K.S.MAHADEVAN, ADVOCATE FOR R8 (AB);
NOTICE SERVED TO R2, R4 R5 R6 & R7]
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE ORDER DATED 01.09.2023 PASSED IN O.S.NO.8354/2022 ON
THE FILE OF THE XVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU
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MFA No. 619 of 2024
CITY, DISMISSING I.A.NO.3 FILED U/O.39 RULE 1 AND 2 R/W
SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 01.09.2023 passed by XVIII
Addl. City Civil Judge, Bengaluru in O.S.no.8354/2022 on
I.A.no.3 filed under Order XXXIX Rules 1 and 2 read with
Section 151 of Code of Civil Procedure, 1908 ('CPC' for short),
this appeal is filed.
2. Smt.Adinatha Narde, learned counsel for appellants
submitted that appeal is by plaintiffs in suit filed for specific
performance of contract. It was submitted, plaintiffs had
originally filed Com.O.S.no.16/2022 before Commercial Court,
Bengaluru. In said suit, they filed I.A.no.1 under Order XXXIX
Rules 1 and 2 of CPC for temporary injunction restraining
defendants etc. from alienating or encumbering suit schedule
properties. However, Commercial Court by order dated
16.09.2022 was pleased to reject application apparently on
ground that plaintiffs had failed to establish its financial status
for readiness and willingness. It was submitted, subsequently
suit was held not to be commercial suit and was registered as
O.S.no.8354/2022. Thereafter, plaintiffs had filed I.A.no.3 for
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order of temporary injunction restraining defendants from
alienating suit schedule properties.
3. It was submitted, though in affidavit filed in support
of application as well as in plaint, plaintiffs had pleaded about
execution of Memorandum of Understanding ('MOU' for short)
dated 19.03.2015 and later agreement dated 18.06.2018
containing terms for joint development and produced copies.
But, learned Trial Judge after framing points for consideration
rejected application for no other reason than rejection of
I.A.no.1 by Commercial Court applying principles of res
judicata.
4. It was firstly submitted, rejection of earlier
application on ground that plaintiffs had failed to produce
documents to establish readiness and willingness and financial
capacity would be wholly untenable. It was also submitted
prayer in I.A.no.1 was against alienation and creation of charge
on suit schedule properties, at stage when
respondents/defendants were attempting to alienate suit
schedule properties. Whereas in affidavit filed in support of
I.A.no.3, it was stated that after rejection of I.A.no.1,
defendants had began construction activities by changing
nature of suit schedule properties and therefore, cause of
action for I.A.no.3 had arosen later and principles of
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res judicata and constructive res judicata could not be applied.
As it was without even examining whether both applications
were on same cause of action or under changed circumstances,
order impugned being cursory and contrary to law was
untenable and required to be set aside.
5. Though, respondents no.1, 3 and 8 have entered
appearance, none appears for them.
6. Heard learned counsel and perused impugned
order.
7. From above, point that arises for consideration is:
"Whether order impugned is untenable and calls
for interference?"
8. Perusal of order impugned would indicate that relief
sought for in I.As.no.1 and 3 are identical. Trial Court, at time
of passing order adverted to pleadings and contentions of
parties and thereafter framed proper points for consideration. It
has also passed reasoned order. However, it is on cursory
comparison of prayers sought in applications by applying
principles of res judicata.
9. As per decision of Four judges Bench of Hon'ble
Supreme Court in Mohanlal Goenka v. Benoy Kishna
Mukherjee and Ors., reported in AIR 1953 SC 65;
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Satyadhyan Ghosal and Ors. v. Sm. Deorajin Debi and
Anr., reported in AIR 1960 SC 941; Mathura Prasad Bajoo
Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy, reported in
AIR 1971 SC 2355; K.K. Modi v. K.N. Modi and Ors.,
reported in 1998 (3) SCC 573 and Erach Boman Khavar v.
Tukaram Sridhar Bhat and Ors., reported in 2013 (15) SCC
655, application for principles of res judicata, internally
between applications at different stages in suit is well settled. It
is however clarified that subsequent application would not be
barred, if, there is proof of new facts of new situations which
had subsequently emerged giving rise to separate cause of
action.
10. In instant case, there is no effort by trial Court to
verify whether subsequent application was on same cause of
action. Trial Court failed to compare affidavits filed in support of
applications merely because prayer sought were identical.
Thus, rejection of application would be untenable. For above
stated reason, point for consideration is answered partly in
affirmative.
Consequently, appeal is allowed. Impugned order dated
01.09.2023 passed by XVIII Addl. City Civil Judge, Bengaluru in
O.S.no.8354/2022 on I.A.no.3 filed under Order XXXIX Rules 1
and 2 of CPC is set aside.
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Matter is remitted 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.3 within a period
of two weeks from next date of hearing.
Until then interim order granted by this Court on
24.04.2024 shall continue.
Sd/-
JUDGE
GRD
