Karnataka High Court
Sri.Vijay vs Sri. Goutham Chand on 5 August, 2025
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MFA No. 6172 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 6172 OF 2023 (CPC)
BETWEEN:
SRI. VIJAY
S/O SHANKARAPPA GOWDA
AGED ABOUT 58 YEARS
RESIDING AT NO.41 MES RING ROAD
BAHUBALINAGAR, JALAHALLI POST
BANGALORE-560 013
...APPELLANT
(BY SRI. SATISH T.S, ADVOCATE)
AND:
1. SRI. GOUTHAM CHAND
S/O GENMAL JAIN
AGED ABOUT 56 YEARS
RESIDING AT NO.P-56, MES ROAD
BAHUBALINAGAR, JALAHALLI POST
Digitally signed by BANGALORE-560 013
ANJALI M
Location: High
Court of
Karnataka 2. SRI. MYNENI VAMSIDHAR
S/O RAVINDRA PRASAD MYNENI
AGED ABOUT 42 YEARS
RESIDING AT FLAT NO.1406
ACS APARTMENT, BSK RING ROAD
BANGALORE-560 070
...RESPONDENTS
(BY SRI. M.B. CHANDRACHOODA, ADVOCATE FOR R2;
R1 - SERVED AND UNREPRESENTED)
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MFA No. 6172 of 2023
HC-KAR
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 30.08.2023 PASSED ON
I.A.NO.1 IN OS.NO.4802/2023 ON THE FILE OF THE XI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-8, DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Misc.First Appeal under Order 43 Rule 1 (r) of
CPC, 1908 is directed against the order dated 30.08.2023
passed by the learned 11th City Civil and Sessions Judge,
Bengaluru, (CCH No.8) in Os no.4802/2023, whereby the
learned trial Court dismissed the appellant as plaintiff's
application filed under Order 39 Rule 1 and 2 of CPC
seeking temporary injunction.
2. The facts in brief are that; the appellant herein
who was the plaintiff before the trial Court instituted OS
No.4802/2023 seeking decree of permanent injunction
against defendants in respect of the suit schedule
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property. The suit schedule property comprises of a
commercial building bearing PID No.2-151-41, Site No.6,
BBMP new no. 41, measuring 5524.75 sq. ft. located at
MES Road, Bahubali Nagar, Jalahalli, Bengaluru.
3. According to the appellant, the first respondent
executed a mortgage cum lease deed dated 6.1.2018 in
his favour for a period of eight years on receiving a sum of
Rs.25 lakhs, and pursuant to the said agreement, the
appellant was put in possession of the suit properties
where he established a lodge and restaurant under the
name `B.M.Residency'. The appellant claims to have made
considerable investment in establishing the business and
to have obtained necessary licences from the food safety
and standards authority of India, GST Registration and
also paying electricity charges for the aid premises. It was
further contended, that on 21.7.2023 and 24.7.2023 the
respondents attempted to forcibly dispossess him by
disconnecting the electricity and threatening eviction
prompting the appellant to seek protection from
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jurisdictional police who advised him to seek civil
remedies.
4. On the strength of above assertions the
appellant filed an application under Order 39 rule 1 and 2
of CPC seeking an order of temporary injunction to
restrain the respondents from dispossessing from suit
schedule property during the pendency of the suit.
5. The first respondent, although he appeared
through counsel, submitted that, he has no objection to
the grant of temporary injunction. However, the second
respondent contested the suit and filed a detailed written
statement. He contended that, he was the registered GPA
holder of the first respondent and one Praveen Chand, the
co-owner of the property under a GPA dated 21.3.2018.
Relying on the said authority, the second respondent had
executed a registered sale deed dated 19.8.2021 in favour
of M/s.VRR Investments Pvt.Ltd., for a consideration of
Rs.4.5 crores pursuant to which, the possession of the suit
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property was delivered to the purchaser, khata was
transferred in the purchaser's name and taxes and
electricity bills were paid accordingly.
6. The second respondent alleged that, the
mortgage deed dated 6.1.2018 relied upon by the
appellant was a forged and fabricated document and
created in collusion with one S.S.Lokesh and that the
signatures found therein did not belong to the first
respondent. Furthermore, it was contended that, the said
document was neither registered nor sufficiently stamped
was styled as a mortgage deed, making it compulsorily
registrable under law.
7. The learned trial Court after hearing the parties
and examining the documents held that, the appellant had
failed to make out a prima facie case. The Court observed
that, the mortgage deed dated 6.1.2018 was written on
Rs.200 stamp paper was unregistered, and was
insufficiently stamped. The trial Court placed reliance on
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the judgment of Division Bench of this Court in Miss.
Sandra Lesley Anna Bartels vs Miss. P Gunavathy
reported in 2013 (1) KCCR 853 and Smt.Dyavamma
Alias Sanna Mukkamma vs Smt. Balamma W/O
Yallappa and others reported in ILR 2010 KAR 3280,
wherein it was categorically held that, insufficiently
stamped and unregistered documents cannot be acted
upon even while considering to grant or refuse interim
relief unless impounded.
8. The learned trial Court took note of the sale in
favour of M/s.VRR Investments Pvt. Ltd., through a validly
executed reg. sale deed by lawful attorney of the joint-
owners and concluded that the appellant had failed to
establish that, he was in lawful possession. Consequently,
the application for temporary injunction was dismissed.
Aggrieved by this order, the plaintiff has filed this appeal.
9. The learned counsel for the appellant in addition
to narrating the facts of the case would submit that,
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plaintiff assets that he is mortgagee in possession right
from the year 2018. The documents so relied upon by the
defendants are all concocted so as to suit their purpose
and submits that, the possession of the plaintiff has to be
protected as he is running a restaurant and invested huge
amount.
10. He relied upon a judgment of this Court in RFA
No.392/2023 decided on 30.09.2024 wherein it is held
that, no person can be evicted without following due
process of law. So also he relies upon another judgment of
the Hon'ble Apex Court Puran Singh v. State of Punjab,
reported in AIR 1975 SC 1674 and submits that, even a
trespasser in possession is entitled to protect his
possession against the true owner, unless he is evicted by
following due process of law.
11. As against this submission, learned counsel for
the respondent submits that, the learned trial Court has
rightly rejected the claim of the plaintiff observing that, he
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is in possession of the property based upon inadmissible
documents. He would submit that there is no proper
pleadings pleaded by the plaintiff in the plaint and the
plaint allegations have to be proved in accordance with
law. He submits that, when there is grant or refusal of
temporary injunction, the court has to consider three
components, prima facie case, balance of convenience and
hardship. He submits that, the principles with regard to
grant of injunction are well settled. According to him, a
person has a right to protect his possession against any
person who does not prove a better title by seeking a
prohibitory injunction. He submits that, a person in
wrongful possession is not entitled to injunction against a
rightful owner. In support of his submission, learned
counsel places reliance on a judgment of Hon'ble Apex
Court in Anathula Sudhakar v. P. Buchi Reddy,
reported in (2008) 4 SCC 594 and submits that, there is
no merit in this appeal.
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12. Having heard the learned counsel for the
appellant and perused the impugned order as well as the
material placed on record, I find that there is no merit in
this appeal. It is settled principle of law that, to grant
temporary injunction Order under Order 39 rule 1 and 2 of
CPC, the plaintiff has to establish a prima facie case,
balance of convenience and irreparable hardship if
injunction is not granted. However, in the present case,
the trial Court has rightly found that, the foundational
documents relied upon by the appellant i.e. mortgage cum
lease deed dated 6.10.2018 is neither registered nor
sufficiently stamped and is therefore, inadmissible. This
finding is in consonance with the binding precedents of
this Court. Moreover, the appellant has not disputed that,
the registered sale deed dated 19.8.2021 was executed by
the lawful GPA holder of the owners in favour of M/s.VRR
Investments Pvt.Ltd., and that the khata and tax receipts
are also in the name of purchaser. Thus, the second
respondent, being a Director of the said purchasing
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company holds better title and right over the suit schedule
property than the appellant whose claim is based on a
defective and inadmissible document.
13. It is further to be noted that, the appellants
attempt to secure temporary injunction in effect seeks to
restrain the rightful owner and purchaser from asserting
the rights which cannot be permitted by way of interim
relief. Courts have time and again held that, interim relief
cannot be granted when it amounts to granting the final
relief itself or when the parties seeking such reliefs lack
legal possession.
14. In view of the above discussion and upon
overall assessment of the factual and legal matrix, this
Court is of the considered opinion, the trial Court has
rightly exercised its discretion in refusing temporary
injunction and no interference is warranted with the
impugned order.
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15. Resultantly, the appeal is dismissed with no
order as to costs by concurring the impugned order dated
30.08.2023 passed in OS No.4802/2023 by the XI
Addl.City Civil and Sessions Judge, Bengaluru City.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
