Karnataka High Court
Sri Peddaraju vs Smt Doddakka on 28 May, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 1833 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.1833 OF 2024(CPC)
BETWEEN:
SRI. PEDDARAJU,
S/O HANUMAIAH,
AGED ABOUT 55 YEARS,
AGRICULTURIST,
BUSINESS,
R/O. MADHAVANAGRA EXTENSION,
SIRA,
TUMKUR DISTRICT.
...APPELLANT
(BY SRI. REVANNA BELLARY, ADVOCATE)
AND:
1. SMT. DODDAKKA,
W/O K. LINGAPPA,
AGED ABOUT 68 YEARS,
Digitally signed by LAND LADY,
MOHANKUMAR M R/O KALLUKOTE,
Location: High KASABA HOBLI,
Court of Karnataka
SIRA,
TUMKUR DISTRICT.
2. JAYALAKSHAMMA,
D/O K. LINGAPPA,
W/O NARASHIHMA MURTHY,
AGED ABOUT 48 YEARS,
AGRICULTURIST,
R/O NEAR CHURCH,
DEVANUR EXTENSION,
DEVANUR ROAD,
TUMKUR.
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MFA No. 1833 of 2024
3. M. VENKATESHA,
S/O. LATE MUNITHIMMAIAH,
AGED ABOUT 66 YEARS,
AGRICULTURIST,
R/O. KOLAGANAHALLI,
LAKSHMIPURA POST,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK
AND DISTRICT.
...RESPONDENTS
(BY SRI. S. RAJENDRA, ADVOCATE FOR CAVEAT R1 TO 3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 13.02.2024 PASSED ON I.A.NO.1
IN O.S.NO.48/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C., SIRA, REJECTING I.A.NO.1 FILED UNDER ORDER
39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging order dated
13.02.2024 passed by Senior Civil Judge and JMFC., Sira
on I.A.No.1 in O.S.No.48/2023.
2. Sri. Revanna Bellary, learned counsel for appellant
submitted that appeal is by plaintiff in O.S.No.48/2023
filed for specific performance of agreement of sale deed
dated 19.01.2023. In said suit, I.A.No.1 was filed under
Order XXXIX Rule 1 and 2 of CPC for order of Temporary
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Injunction restraining defendants from alienating suit
property during pendency of suit. It was submitted, suit
property was agricultural land measuring 1 Acre 20 Guntas
comprised in old Sy.no.107/2 new Sy.no.107/7 totally
measuring 3 Acres 20 Guntas, situated at Kallukote
Village, Kasaba Hobli, Sira Taluk, Tumkur District.
3. It was submitted, on 19.01.2013, defendant nos.1
and 2 executed an agreement of sale agreeing to sell suit
property for total sale consideration of Rs.50,50,000/- by
receiving advance of Rs.10,00,000/- and agreeing to
execute registered sale deed within six months after
conversion of suit property by receiving balance sale
consideration.
4. It was submitted, subsequent to execution of
agreement, plaintiff paid further sale consideration on
various dates, totaling to Rs.21,60,000/-. However, it was
learnt by plaintiff that, defendant nos.1 and 2 were
colluding with defendant no.3 and were claiming to have
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executed an agreement of sale with defendant no.3,
prompting plaintiff to file a suit. It was submitted that
though in affidavit filed in support of application, plaintiff
had narrated above facts and also specifically stated that
defendant nos.1 and 2 were likely to execute absolute sale
deed in favour of defendant no.3 and frustrate suit, Trial
Court under impugned order had proceeded to reject
application.
5. It was submitted that plaintiff had produced copy
of agreement of sale dated 19.01.2020 and also receipts
to substantiate payment of earnest money. Even though
said receipts would disclose that substantial amount of
sale consideration had passed, Trial Court on ground that
transaction was indicative of a loan transaction refused to
grant temporary injunction, which observation called for
interference.
6. It was submitted, plaintiff had prima facie case
and refusal to grant temporary injunction would lead to
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multiplicity of proceedings and relying upon decision of
this Court in Chinnamma and others vs. N. Nagaraj and
others1. It was submitted, unless impugned order though
discretionary in nature was passed by exercising discretion
correctly, it could not be sustained. It was submitted that
since discretion was not exercised properly, order called
for interference.
7. On the other hand Sri. S. Rajendra, learned
counsel for respondent nos.1 to 3 opposed appeal. It was
at outset submitted, suit for specific performance was filed
in year 2023 in respect of an agreement of sale dated
19.01.2013. It was submitted even as per agreement, sale
deed was to be executed within six months. But there was
no explanation for filing suit after eleven years. Further,
even according to plaintiff, notice issued prior to filing of
suit was on 11.07.2017, whereas suit was filed on
08.02.2023 which would be prima facie beyond period of
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limitation. Under such circumstances, refusal to grant
injunction was justified.
8. In so far as averments in paragraph Nos.4(a) to
(n) of plaint, it was submitted, no documents were
produced before Trial Court, whereas receipts produced
along with appeal were not referred in plaint. Therefore,
plaintiff was trying to improvise. It was submitted,
defendants have denied execution of agreement of sale, as
there was a loan transaction between defendant nos.1 and
2 and plaintiffs wherein as a security, defendants have
executed blank signed papers which were later utilized by
plaintiff for creating alleged agreement of sale. It was
submitted that defendant nos.1 and 2 had entered into
registered joint development agreement executed on
10.08.2016 with one Afzal Shariff in presence of plaintiff.
As there were no proper progress on said agreement,
defendant nos.1 and 2 have taken steps for cancellation
and subsequently entered into agreement of sale with
defendant no.3.
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9. It was submitted, while passing impugned order,
Trial Court had taken note of averments, pleadings and
documents produced and after taking note of same,
arrived at conclusion that transaction between plaintiff and
defendant nos.1 and 2 was in nature of loan transaction
and on said ground, refused order of temporary injunction.
It was submitted, order was passed after framing proper
points of consideration by assigning reasons and therefore,
no interference was called for. It was submitted that
belated filing of suit was one of factor, was taken note of
by Trial Court while observing that plaintiff had not come
with clean hands.
10. Heard learned counsel and perused impugned
order.
11. It is not in dispute that order impugned is passed
on an application filed under Order XXXIX Rule 1 and 2 of
CPC., which is discretional in nature. Hon'ble Supreme
Court in Mohd. Mehtab Ibrahim Khan vs. Khushnuma
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Ibrahim Khan has defined 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 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
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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
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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 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
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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.
12. Therefore, it is imperative for this Court to
examine whether any case of intenability or perversity in
observations/findings of orders exist for interference.
While passing impugned order, Trial Court has framed
necessary points for consideration.
13. While assigning reasons, Trial Court had referred
to plaint averments, written statement averments as well
as assertions in affidavits filed in support of application. It
has also referred to documents made available. It is not
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contention of appellant that documents were not referred
to. Specific contention of learned counsel for appellant is
that from these documents existence of a loan transaction
cannot be deduced.
14. As per plaintiff, agreement is executed on
19.01.2013. Perusal of copy of agreement would indicate
that there is a condition for execution of registered Sale
Deed within six months from date of obtaining conversion
of land by paying balance.
15. Prima facie there are no averments about steps
for conversion or its progress. On other hand, plaintiff
claims to have made further payments on various dates
between 15.04.2015 and 03.06.2016. Impugned order
refers to these receipts and based on reasons mentioned
therein i.e., for treatment, for marriage and for personal
reasons etc., Trial Court has concluded prima facie about
indication of loan transaction between parties. It was also
seen that there was no proper explanation for belated
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approach. Indeed, it would also appear that in so far as
other signatories on agreement, there is no explanation in
plaint. In light of above, observation by Trial Court cannot
be held to be without any basis or perverse.
16. Hon'ble Supreme Court has stated that even if
conclusion reached by Trial Court is one of possible
conclusions based on material, there cannot be
interference. It is also seen that plaintiff's interest would
be sufficiently protected by principle of 'lis pendens'.
17. Hence, I do not find good grounds to interfere
with impugned order. However, it is clarified that
observations in order passed by Trial Court as well as this
Court are confined to interim stage. Appeal stands
dismissed.
At this stage, both counsel submit that they would
co-operate for early conclusion of suit. Said submission is
placed on record.
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Trial Court is directed to expedite disposal of suit
without granting unnecessary adjournments.
Sd/-
JUDGE
BN
