Karnataka High Court
N. Sundar vs N. Natesha Murthy on 22 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2510 OF 2018 (CPC)
C/W
WRIT PETITION NO. 12648 OF 2018 (GM-CPC)
IN MFA No. 2510/2018:
BETWEEN:
1. N. SUNDAR
S/O. LATE SRI. M.NATESHA MUDALIAR,
AGED ABOUT 52 YEARS,
R/AT NO.168,
SEPPINGS ROAD,
BENGALURU-560 001.
...APPELLANT
(BY SRI. S.G. BHAGAVAN, ADVOCATE)
AND:
Digitally signed
by DEVIKA M
Location: HIGH 1. N. NATESHA MURTHY
COURT OF S/O. LATE SRI. NATESH MUDALIAR,
KARNATAKA AGED ABOUT 63 YEARS,
NO.3C004,
ISRO APARTMENTS, DOMLUR,
BENGALURU-560 071.
2. N. RAJASHEKARAN
S/O. LATE SRI. M.NATESHA MUDALIAR,
AGED ABOUT 53 YEARS,
168, SEPPINGS ROAD,
BENGALURU-560 001.
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
3. N. INDRANI
D/O. LATE SRI. M.NATESHA MUDALIAR,
AGED ABOUT 61 YEARS,
168, SEPPINGS ROAD,
BENGALURU-560 001.
4. N. SHANMUGAM
S/O. LATE SRI. M.NATESHA MUDALIAR,
AGED ABOUT 58 YEARS,
NO. 10, HUTCHINS ROAD,
FRAZER TOWN,
BENGALURU-560 005.
SINCE DECEASED BY HIS LRS
4(a) SMT. ARCHANA
W/O LATE N.SHANMUGAM
AGED ABOUT 57 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
4(b) S. KARTHIKAYAN
S/O LATE N.SHANMUGAM
AGED ABOUT 38 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
4(c) S. ASHWINI
D/O LATE N.SHANMUGAM
AGED ABOUT 38 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
4(d) S. KISHAN KUMAR
W/O LATE N.SHANMUGAM
AGED ABOUT 32 YEARS
NO.10, HUTCHINS ROAD
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
POTTERY TOWN
BENGALURU-560 005.
(AMENDED VIDE COURT ORDER 19.12.2024)
...RESPONDENTS
(BY SRI. N. NATESHA MURTHY, (PARTY-IN-PERSON) FOR R1;
SRI HANUMANTHARAYAPPA K., ADVOCATE FOR R2 & R4;
VIDE ORDER DATED 16.12.2024,
NOTICE TO R3 HELD SUFFICIENT;
SRI C. VIJAYA KUMAR, ADVOCATE FOR R4[a to d])
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 06.03.2018 PASSED IN I.A.
NO.XII ON O.S.NO.15734/2003 ON THE FILE OF THE 4TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MYOHALL
UNIT, BENGALURU, ALLOWING IA XII FILED UNDER ORDER 39
RULES 1 AND 2 R/W SECTION 151 OF CPC.
IN WP NO. 12648/2018:
BETWEEN:
1. N. SUNDAR
S/O LATE SRI. M.NATESHA MUDALIAR
AGED ABOUT 52 YEARS
NO.168, SEPPINGS ROAD
BENGALURU-560 001.
...PETITIONER
(BY SRI. S.G.BHAGAVAN, ADVOCATE)
AND:
1. N. NATESHA MURTHY
S/O LATE SRI. NATESH MUDALIAR
AGED ABOUT 63 YEARS,
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
NO.3C004, ISRO APARTMENTS, DOMLUR,
BENGALURU-560071.
2. N. RAJASHEKARAN
S/O LATE SRI. M.NATESHA MUDALIAR
AGED ABOUT 53 YEARS
NO.168, SEPPINGS ROAD
BENGALURU-560 001.
3. N. INDRANI
D/O LATE SRI. M.NATESHA MUDALIAR
AGED ABOUT 61 YEARS
NO.168, SEPPINGS ROAD
BENGALURU-560 001.
4. N. SHANMUGAM
S/O LATE SRI. M. NATESHA MUDALIAR
AGED ABOUT 58 YEARS,
NO.10, HUTCHINS ROAD
FRAZER TOWN
BENGALURU-560 005
SINCE DECEASED BY HIS LRS
4(a) SMT. ARCHANA
W/O LATE N.SHANMUGAM
AGED ABOUT 57 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
4(b) S. KARTHIKAYAN
S/O LATE N.SHANMUGAM
AGED ABOUT 38 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
4(c) S. ASHWINI
D/O LATE N.SHANMUGAM
AGED ABOUT 38 YEARS
NO.10, HUTCHINS ROAD
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
POTTERY TOWN
BENGALURU-560 005.
4(d) S. KISHAN KUMAR
W/O LATE N.SHANMUGAM
AGED ABOUT 32 YEARS
NO.10, HUTCHINS ROAD
POTTERY TOWN
BENGALURU-560 005.
(AMENDED VIDE COURT ORDER 19.12.2024)
...RESPONDENTS
(BY SRI. VIVEKANANDA, ADVOCATE FOR R1;
SRI. K. HANUMANTHARAYAPPA, ADVOCATE FOR R3 AND
LRS OF R4; SRI. P. DHANANJAYA, ADVOCATE FOR R2 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 06.03.2018 PASSED BY THE
COURT OF THE IV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU [CCH-21] ON
I.A.NO.XIII FILED UNDER ORDER 20 RULE 12 READ WITH
SECTION 151 OF THE CODE OF CIVIL PROCEDURE, IN
O.S.NO.15734 OF 2003 AND DIRECTING THE PETITIONER
TO "DEPOSIT THE RENT OF RS.1,09,80,000/- FOR THE LAST
17 YEARS WITHIN THREE MONTHS FROM THE DATE OF THIS
ORDER AMOUNTING TO RS.1,09,80,000/- AS PER
ANNEXURE-E.
THIS MFA AND WRIT PETITION COMING ON FOR
ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
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MFA No. 2510 of 2018
C/W WP No. 12648 of 2018
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
JUDGMENT
Heard learned counsel for the appellant in
M.F.A.No.2510/2018 and learned counsel for the petitioner in
W.P.No.12648/2018 and learned counsel for the respondents in
both the matters.
2. M.F.A.No.2510/2018 is filed against the order
passed by the Trial Court on I.A.No.XII, wherein the Trial Court
has passed a restraint order against the appellant restraining
him from collecting rent from the suit schedule property, until
appointment of a receiver to receive rents. W.P.No.2510/2018
is filed against the order passed on I.A.No.XIII allowing the
application directing the petitioner to deposit the rent of
Rs.1,09,80,000/- for the last 17 years within three months
from the date of this order.
3. The factual matrix of the case of the
plaintiffs/respondents, who are the sons of Late Natesh
Mudaliyar is that they have sought for the relief of partition
claiming their respective share as mutually agreed upon the
plaintiffs and defendants commensurate with the nature of the
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suit. While seeking such relief, mentioned in paragraph Nos.3
and 4 of the plaint with regard to 'A' and 'B' schedule properties
which have been morefully described in the schedule. It is also
contended that they mutually agreed to share the property
among themselves amicably and to arrive at a family
settlement without any kind of misunderstanding among
themselves and to avoid expensive litigations. The plaintiffs
have obtained consent to take schedule 'A' property and the
defendants have decided to take schedule 'B' property and
mutual consent of plaintiffs and defendants are accorded herein
and have no objection whatsoever to have the same and
become absolute owners of schedule 'A' and schedule 'B'
properties accordingly. In view of these circumstances, the
plaintiffs are now constrained to bring the suit for partition and
separate possession and to realize their share of schedule 'A'
property and to give the defendants in settlement of schedule
'B' property herein which is their ancestral property.
4. When such relief is sought in the plaint, inter alia
they also sought for the relief of temporary injunction in terms
of I.A.No.XII for a restraint order to restrain the appellant
herein from collecting rent and also to deposit the rent in the
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Court. Learned counsel appearing for the appellant would
contend that the Trial Court committed an error in passing such
an order entraining the application I.A.No.XII and ought not to
have passed a restraint order when the suit is filed for the relief
of partition. Learned counsel also would vehemently contend
that such an order ought not to have been passed, when no
application is filed before the Trial Court and till the
appointment of receiver, the Trial Court ought not to have
passed such an order.
5. Per contra, the respondent No.1, who is party-in-
person in M.F.A.No.2510/2018 would contend that receiver
application is pending before the Trial Court and the same is
not yet taken up for consideration and the same pending before
the Trial Court. He also would contend that there is no need to
seek for permanent injunction in a suit filed for partition and
only an intermediate arrangement is made and having
considered the grounds urged in the application, the Trial Court
passed a restraint order.
6. Learned counsel for respondent No.1 in
W.P.No.12648/2018 would vehemently contend that writ
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petition is filed against the order passed on I.A.No.XIII,
wherein a direction was given to deposit the rent and the
petitioner also not denies the fact that he is collecting the rent
and also not deposited the said amount. Hence, when the suit
is filed for partition, the parties are entitled for the relief of
partition by metes and bounds. Therefore, well reasoned order
is passed and this Court cannot exercise writ jurisdiction and
quash the order on I.A.No.XIII.
7. Learned counsel for the respondent No.2 in
M.F.A.No.2510/2018 would vehemently contend that in a suit
filed for the relief of permanent injunction, inter alia sought for
the relief of partition. Learned counsel would contend that there
is no dispute with regard to the fact that the appellant was
collecting rent and he is enjoying the fruits of the property
without sharing the same and there was internal arrangement
between the parties to avoid litigation, but consequent upon
conduct of the appellant, the parties are made to approach the
Court. Hence, learned counsel would contend that appellant
cannot find fault with the order passed by the Trial Court giving
such a direction and restraint order has been passed.
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8. Learned counsel for the legal representatives of
respondent No.4 in his argument would vehemently contend
that at each and every stage, the appellant is coming in the
way of disposal of the suit and earlier also filed Miscellaneous
Petition No.552/2014 invoking Section 24 CPC to transfer the
suit and the same was dismissed with exemplary cost of
Rs.20,000/- and it is categorically observed that this appellant
is coming in the way of disposal of the suit. Learned counsel
also would vehemently contend that suit was filed in 2003 and
till date, the same is not disposed of and even with regard to
the conduct of the appellant is concerned, an observation is
made while dismissing Miscellaneous Petition No.552/2014.
The respondent No.1, party-in-person in his argument brought
to notice of this Court that earlier dispute was disposed in civil
revision petition when application was filed under Order VII
Rule 11(a) CPC. In the said petition, this Court also made an
observation that suit was filed in 2003 and application was filed
in 2018 and no doubt, that application can be filed before
disposal of the suit, but also taken note of the conduct of the
appellant and also observation is made that the affidavit filed in
support of an application under Order VII Rule 11(a) CPC is
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silent about the grounds which have been urged before this
Court and nothing is stated in the affidavit with regard to the
new contention except stating that an affidavit under Order VII
Rule 1(e) CPC mandates that the plaint shall contain the facts
constituting the cause of action when it arose. It is also
contended that the suit was filed in 2003 and the present
application is filed in 2018 i.e., after lapse of 16 years and in
the beginning he has not taken any such plea and the Court
has to look into only the plaint averments and not the defence
of the defendants while considering the application filed under
Order VII Rule 11 CPC.
9. Having heard learned counsel for the appellant,
learned counsel for the petitioner and learned counsel for the
respondents in both the matters, the points that would arise for
consideration of this Court are:
(i) Whether the Trial Court committed an error
in allowing I.A.No.XII passing restraint order
against the appellant for collection of rent?
(ii) Whether the Trial Court committed an error
in allowing I.A.No.XIII, wherein direction is
given to deposit the rent before the Trial
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Court within a period of three months and
whether it requires interference of this Court?
(iii) What order?
Point Nos.(i) and (ii)
10. Having heard both the learned counsel for the
appellant and learned counsel for the petitioner as well as the
learned counsel for the respondents, it is not in dispute that
suit is filed for the relief of partition and in the suit, it is
specifically pleaded with regard to 'A' schedule and 'B' schedule
properties in paragraph Nos.3 and 4 of the plaint. Apart from
that, there are several pleadings in the plaint with regard to the
fact that the parties have mutually agreed to take their
respective schedule properties. It has to be noted that there is
no dispute with regard to the relationship between the parties
and also no dispute with regard to the properties i.e., 'A' and
'B' schedules are concerned. The main contention of the
learned counsel for the appellant is that in the said suit, no
relief is sought for permanent injunction, when such relief is not
sought, the question of granting such interim order does not
arise. The said contention of the learned counsel for the
appellant cannot be accepted and in a suit for partition, the
partition should be metes and bounds. When such being the
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case, a restraint order can be passed in the interest of parties,
who seek relief before the Court. Hence, the contention cannot
be accepted.
11. The other contention of the learned counsel for the
appellant is that no application is filed before the Trial Court for
appointment of receiver and in the absence of such application,
the Trial Court ought not to have passed such a restraint order,
till appointment of the receiver. The party-in-person i.e.,
respondent No.1 submits that an application is filed and the
same is pending consideration. It has to be noted that when
an order has been passed to restrain the appellant from
collecting the rent and it is the case of the parties also that the
appellant is collecting the rent and the appellant is also not
disputing the fact that he collecting the rent and whether such
application is filed or not is immaterial and the order passed by
the Trial Court is in the interest of the parties or otherwise, the
party, who succeeds in the partition will not get the fruits of the
decree, if rents are collected. Though no such application is
filed before the Trial Court, the appellant cannot find fault with
the same and the said order is passed to safeguard the interest
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of the parties. Hence, the said contention also cannot be
accepted.
12. Learned counsel for the respondents also contend
that the appellant is also not disputing the fact that he is
collecting the rent. Learned counsel appearing for the appellant
also in his argument not disputed the same and he meticulously
submits that the dispute is interse between the brothers and if
properties are sold by mutual consent and settlement is arrived
between them, there will be an end to the litigation and such
submission is made in 2025 and the appeal and writ petition is
filed long back in the year 2018, as against the order passed by
the Trial Court. From 2018 to 2025, no such effort was put in
to settle the issue, though it is interse between the brothers,
but when the matter is taken up for consideration, even though
the matters were heard in part earlier, said submission was not
made and hence, the same cannot be accepted. Even if such
attempt is made during the pendency of the suit also, this
Court while considering the civil revision petition, even directed
the Trial Court to dispose of the matter within six months. The
Court has to take note of the pendency of the matter and the
suit is more than two decades old.
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13. The counsel appearing for the respondent No.4
brought to the notice of this Court that miscellaneous petition
also filed was also dismissed with the cost of Rs.20,000/- and
also Court has to take note of conduct of the appellant in
seeking such a relief and already filed an application under
Order 7 Rule 11 of CPC after 16 years and also filed the petition
before the Trial Court for transfer of the suit also and Court has
to take note of such conduct and the appellant is collecting the
rent and enjoying the fruits of the property without giving any
share to the respondents and having taken note of all these
factors into consideration, the Trial Court passed an order not
to collect the rent as well as whatever rent he has collected has
to be deposited before the Court within the time frame. When
such orders are passed, I do not find any error committed by
the Trial Court in passing such a restraint order not to collect
rent and also directing the appellant to deposit the rent he has
collected within the time bound period and the said order is
passed only in the interest of the parties of the suit, since suit
is filed for the relief of partition. The appellant also not dispute
the fact that property belongs to their family, but only
contention is that it can be sorted out among themselves, but
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no such efforts are made from the year 2003 till 2025. Hence
no grounds are made out to set-aside the order passed on
I.A.No.XII and I.A.No.XIII. Hence, there is no merit in the
appeal as well as in the writ petition.
Point No.(iii)
14. In view of the discussion made above, I pass the
following:
ORDER
i) The M.F.A.No.2510/2018 and W.P.No.12648/2018
filed against the order on I.A.No.XII and I.A.No.XIII
respectively are dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST, RHS
