Karnataka High Court
Shri. Narayan S/O.Omanna Gurav vs Smt. Laxmi W/O. Kallappa Gurav on 12 November, 2024
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NC: 2024:KHC-D:16530
MFA No. 100270 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100270 OF 2021 (CPC)
BETWEEN:
1. SHRI NARAYAN S/O.OMANNA GURAV,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
2. ASHOK S/O. OMANNA GURAV,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
3. SHIR RAVALU S/O. OMMANA GURAV,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
4. SMT. TULSABAI W/O. KONERI GURAV,
Digitally signed
AGE: 64 YEARS, OCC: AGRICULTURE,
by SAROJA
HANGARAKI
R/O: HALAKARNI TQ: KHANAPUR,
Location: High
Court of
DIST: BELAGAVI.
Karnataka
5. SMT. SUNDARABAI W/O. ASHOK KHANAPUR,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI HIREMATH R. M., SRI S.S.HIREMATH,
SRI S.K.NADAMANI, ADVOCATES)
AND:
1. SMT. LAXMI W/O. KALLAPPA GURAV,
AGE: 85 YEARS, OCC: HOUSEHOLD WORK,
R/O: HALAKARNI, TQ: KHANAPUR,
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NC: 2024:KHC-D:16530
MFA No. 100270 of 2021
DIST: BELAGAVI.
2. SMT. SHRIMANTHA W/O. BHIKAJI GURAV,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
3. SHRI GANAPATI S/O. KALLAPPAP GURAV,
AGE: 54 YEARS, OCC: PVT. SERVICE,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
4. SHIR DEVAPPA S/O. GANAPATI GURAV,
AGE: 79 YEARS, OCC: BUSINESS,
R/O: RAVALNATH DEV GALLI, KHANAPURI
TQ: KHANAPUR, DIST: BELAGAVI.
5. SHRI PANDURANG S/O. YESHWANT GAVADA @ PATIL,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: KIR-HALALSI, TQ: KHANAPUR,
DIST: BELAGAVI.
6. SMT. GANGU D/O. KALLAPPA GURAV,
AFTER MARRIAGE SMT. GANGA W/O. YALLARI GURAV,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEHRU NAGAR, DIST: BELAGAVI.
7. SMT. CHAYA D/O. KALLAPAP GURAV,
AFTER MARRIAGE SMT. PUSHPA
W/O. PUNDURANG PATIL,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: HALAKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
8. SMT. GEETA D/O. KALLAPPA GURAV,
AFTER MARRIAGE SMT. RAJASHREE
W/O. RAJARAM HALAGEKAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: TOPINAKATTI, TQ: KHANAPUR,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI H.M.DHARIGOND, ADVOCATE FOR C/R3;
NOTICE ISSUED TO R1, R2, R4, R5, R6(A TO E)
R7 AND R8 ARE SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 104 R/W ORDER XLIII
RULE 1(R) OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
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MFA No. 100270 of 2021
ORDER DATED 06.01.2021 PASSED IN O.S.NO.2/2016 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, KHANAPUR, ON I.A.NO.I IN O.S.NO.02/2016 AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The above appeal is filed challenging the order dated
06.01.2021 passed on I.A.No.1 in O.S.No.2/2016 by the
Senior Civil Judge & JMFC., Khanapur1.
2. The relevant facts in a nutshell are that the
appellants along with one Smt.Parwati instituted a suit in
O.S.No.2/2016 for partition and other reliefs. The said
Smt.Parwati died during pendency of the suit. The
appellants who are plaintiff Nos.2 to 6 have continued to
prosecute of the suit.
3. In the said suit, the plaintiffs filed I.A.No.1
under Order 39 Rules 1 and 2 R/w Section 151 of the Code
Hereinafter referred to as 'the Trial Court'
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of Civil Procedure2. The Trial Court by its order dated
06.01.2021 dismissed the said applications. Being
aggrieved the present appeal is filed.
4. It is forthcoming that the Trial Court while
considering I.A.No.1 has recorded the following findings:
"37. Above all, the plaintiffs conduct appears to
be not clean and fair. As stated above, it appears that
they have not included all the properties in the common
hotchpot and they have selectively targeted the landed
properties of the defendant no. 1 alone and they have
not included the properties which are standing in their
names and which are inherited from Appayya. Further,
it is pertinent to note that these defendants have taken
up the said defence as on
28-10-2016 itself when they have the written statement.
Further, almost the very same defence is taken up by
these defendants even in the earlier suit. Despite the
same, plaintiffs have not tried to amend the plaint and
say as to why they have not included all those properties
and why they are claiming share only in the properties
which are in the name of defendant no.1 that are
inherited from Sundrabai. Only during the course of
arguments, plaintiffs counsel argued that in the suit for
partition plaintiffs are defendants, and defendants are
plaintiffs, insofar as respective claims is concerned.
Hence, if the defendants want to seek share in those
properties, they could very well include those properties
in their written statement. The said argument cannot be
accepted for the reason that the plaintiffs who have come
to Court seeking equitable and discretionary relief of
temporary injunction as well as main relief of partition,
cannot say that they would file for partition only with
respect to properties they desire and let the defendants
choose to seek counter-claim, if they want share in any
other properties. That attitude and conduct of plaintiffs is
Hereinafter referred to as 'CPC'
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not a fair conduct, and one who comes to Court to seek
equitable relief has to come with clean hands and should
not hide the material facts and documents before the
Court. As such, arguments of plaintiffs counsel cannot be
accepted. Further it had come in argument of both sides
that some of the properties standing in the name of
plaintiffs and Omanna had been acquired by the
Government and compensation was paid. But the details
of the same is not averred by both the parties, as to,
which survey number was acquired and what was the
compensation was paid to Omanna's family. But the
counsel for the plaintiffs in reply arguments stated that
even with respect to said compensation amount,
defendants could seek share in it, if they are entitled. The
said arguments of both the counsels shows that, even
though the details of the same is not averred in the
pleadings of both the parties, certain land has been
acquired and compensation has been received by
plaintiffs' family and the same is not brought to the notice
of Court in the plaint. All the above factors dis-entitles the
plaintiffs from seeking equitable relief of temporary
injunction. In view of all the discussion and reasoning
given above, it is opined that plaintiffs have failed to
make out a prima facie case in their favour."
(emphasis supplied)
5. It is further relevant to note that the suit is
pending since the year 2016 and the application for
injunction was rejected by the Trial Court vide order dated
06.01.2021. No ad-interim order of injunction has been
granted by this Court in the present appeal.
6. The Trial Court has appreciated the relevant
factual matrix in the matter and exercised its discretion in
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refusing the injunction as sought for by the plaintiff. The
plaintiffs not have the benefit of an interim injunction ever
since the date of the suit.
7. The appellants have failed in demonstrating
that the discretion exercised by the Trial Court is in any
manner erroneous and liable to be interfered with by this
Court in the present appeal. Hence, the above appeal is
dismissed as being devoid of merit.
8. In view of the dismissal of the above appeal,
I.A.No.1/2021 shall also stands dismissed as not arising
for consideration.
Sd/-
(C.M. POONACHA)
JUDGE
SSP
CT-ASC
