IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.4262/2017(CPC) BETWEEN:
Smt Ambika G Nayak W/o Ganesh S Nayak D/o Vasudeva Prabhu Aged about 42 years R/at House No.43B Anantha Nagar, Manipal Udupi Taluk and Distirct-576 104. .. APPELLANT (By Sri Chandrashekar, Adv.) AND:
Sri Ganesh S Nayak S/o Sundar S Nayak Aged about 46 years R/o 2-123 F/4 “Sri Lakshmi Ganesh” Kotekar Post, Kumpala Mangaluru-575 022. ..RESPONDENT (By Sri H Pavan Chandra Shetty, Adv. for C/R) This Miscellaneous First Appeal is filed under Order 43 Rule 1(r) of CPC against the order dated 05.04.2017 passed on I.A.No.III to IV in O.S.No.72/2015 on the file of the Addl. Senior Civil Judge, Udupi, allowing I.A.Nos.1 to 3 filed under Order 39 Rule 1 and 2 CPC.
This Miscellaneous First Appeal coming on for Orders this day, the Court delivered the following:
JUDGMENT The defendant has filed the present appeal against the order dated 5.4.2017 passed by the Additional Senior Civil Judge, Udupi allowing I.A.Nos.3 and 4 filed by the plaintiff in O.S.No.72/2015 and directing the defendant to hand over vacant possession of the premises other than ‘C’ schedule property where the defendant is residing, to the plaintiff forthwith and also reserved liberty to the plaintiff to take any action with regard to contempt the contentions raised during the course of arguments by the plaintiff’s counsel.
2. The plaintiff filed O.S.No.72/2015 for declaration of title in respect of plaint A, B, C, D, E and F schedule properties contending that he had purchased the same from and out of his own funds and for consequential relief of mandatory injunction directing the defendant to deliver vacant possession of the plaint A to F schedule properties to the plaintiff and for permanent injunction restraining the defendant, her men, agents and all those persons claiming through or under her from interfering with the peaceful possession and enjoyment of the plaint A to F schedule properties by the plaintiff and defendant has no manner of right, title in the suit schedule properties etc., 3. The defendant filed the written statement denying the entire plaint averments and contended that the property is purchased by both plaintiff and defendant jointly. Hence, sought for dismissal of the suit.
4. During the pendency of the proceedings, I.A.No.2 was filed by the plaintiff for injunction restraining the defendant and her agents from alienating or leasing or creating charge or changing nature of the plaint A to F schedule properties. The trial Court has granted injunction permitting the defendant only to use ‘C’ schedule premises, against which, appeal is preferred in MFA No.4263/2017, which is pending before this Court.
5. When the matter was posted for framing of issues, at that stage, the plaintiff filed I.A.No.3 under Order 39 Rule 1 and 2 of CPC for temporary injunction restraining the defendant, her men, agents, servants or any person claiming through her from leasing out any portion of the plaint A to F schedule property, reiterating the averments made in the plaint, the said application was resisted by the defendant by filing objections. The plaintiff also filed I.A.No.4 under Order 39 Rule 1 and 2 of CPC for temporary injunction restraining the defendant, her men, agents and servants claiming through her not to cause any damages to any portion of A to F schedule properties, reiterating the averments made in the plaint, it was also resisted by the defendant by filing objections.
6. The trial Court considering I.A.Nos.3 and 4, by the impugned order dated 5.4.2017 allowed I.A.Nos.3 and 4 and directed the defendant to hand over vacant possession of the premises other than ‘C’ schedule property, where the defendant is residing, to the plaintiff forthwith and also reserving liberty to the plaintiff to initiate contempt as per the contentions raised during the course of arguments. Hence, the present appeal.
7. I have heard the learned counsel for the parties to the lis.
8. Sri.Chandrashekar, learned counsel for the appellant vehemently contended that the impugned order passed by the trial Court allowing I.A.Nos.3 and 4 directing the defendant to hand over the possession of the suit schedule premises except ‘C’ schedule property is erroneous and contrary to the material on record and contrary to the relief sought in I.A.Nos.3 and 4. He further contended that when the suit itself was filed for declaration and mandatory injunction directing the defendant to deliver possession of plaint A to F schedule properties, the impugned order is nothing but decreeing the suit itself. Therefore, the trial Court was not justified in passing the impugned order. Therefore, he sought to set aside the order of the trial Court by allowing the present appeal.
9. Per-contra, Sri.H.Pavan Chandra Shetty, learned counsel for the caveator-respondent sought to justify the impugned order and strenuously contended that the trial Court considering I.A.Nos.3 and 4 and the entire material on record has passed an equitable order taking into consideration the fact that plaintiff and defendant are husband and wife and this Court sitting in appellate jurisdiction cannot interfere with the order of the trial Court. Accordingly, sought to dismiss the appeal.
10. In view of the aforesaid rival contentions urged by the learned counsel for the parties to the lis, the only point that arises for consideration in the present appeal is:
“Whether the impugned order passed by the trial Court allowing I.A.Nos.3 and 4 directing the defendant to hand over vacant possession of the premises other than ‘C’ schedule property to the plaintiff is justified in the facts and circumstances of the case?”
11. Having given my anxious consideration to the arguments advanced by the learned counsel for the parties, it is an undisputed fact that the respondent- plaintiff filed suit for declaration of title to declare that he is the absolute owner of the suit A to F schedule properties having purchased the same out of his own funds and for mandatory injunction directing the defendant to deliver vacant possession of A to F schedule properties and also for injunction restraining the defendant from interfering with his peaceful possession and enjoyment of A to F schedule properties. The same is disputed by the appellant-defendant by filing written statement contending that the schedule properties are purchased jointly and not by the plaintiff alone as alleged by him. Further, it is also not in dispute that plaintiff filed I.A.No.3 under Order 39 Rule 1 and 2 of CPC for temporary injunction restraining the defendant, her men or agents claiming through him from leasing out any portion of A to F schedule properties. Plaintiff also filed I.A.No.4 under Order 39 Rule 1 and 2 of CPC for injunction restraining the defendant, her men or agents from causing any damage to any portion of plaint schedule A to F properties or change the nature of the plaint A to F schedule properties. The trial Court proceeded to pass the impugned order directing the defendant to hand over vacant possession of the premises except ‘C’ schedule property where the defendant is residing, contrary to the very prayer sought in I.A.Nos.3 and 4. The said order passed by the trial Court is impermissible under the law.
12. The learned trial Judge while deciding I.A.Nos.3 and 4 has gone to the extent of discussing the merits of the suit and virtually has given finding on the merits of the suit, which is also impermissible. The learned Judge has failed to notice that the very suit was filed for declaration and also for mandatory injunction directing defendant to deliver vacant possession of plaint A to F schedule properties to the plaintiff. If that is so, while allowing I.A.Nos.3 and 4, if the defendant is directed to hand over possession of the premises except ‘C’ schedule property, it is virtually nothing but decreeing the suit itself, which is impermissible. The first prayer sought for by the plaintiff is to direct the defendant to deliver vacant possession of the plaint A to F schedule properties assuming that he is the owner and in possession of the property. The second prayer sought is to restrain the defendant from interfering with the possession of plaint A to F schedule properties assuming that he is in possession of the property. When the main relief itself is for declaration and for possession, the trial Court ought not to have ventured to direct the defendant to hand over possession of the premises while considering I.A.Nos.3 and 4. The impugned order passed by the trial Court is nothing but giving raise to multiplicity of proceedings between husband and wife.
13. During the course of arguments, learned counsel for the respondent-plaintiff has pointed out that in paragraph No.10 of the impugned order the trial Court has recorded a finding that prima facie the properties are of the plaintiff, if at all defendant is successful, she will be entitled only to the extent of 50%, which can be disputed by her. Therefore, the prayer made by the plaintiff is to be considered and the balance of irreparable loss is in favour of the plaintiff. Accordingly, seek order prohibiting the defendant from leasing out the properties and preventing any damages which may cause to suit A to F schedule properties. While observing so, the learned Judge ought to have maintained consistency and limited the relief only to the prayer sought in I.A.Nos.3 and 4. Unfortunately, the learned Judge has exceeded beyond the prayer sought, which is impermissible.
14. For the reasons stated above, the point raised in this appeal is to the answered in the negative holding that the trial Court is not justified in allowing I.A.Nos.3 and 4 and directing the defendant to hand over vacant possession of the premises except ‘C’ schedule property wherein the defendant is residing to the plaintiff forthwith.
15. In view of the above, the appeal is allowed.
The impugned order dated 5.4.2017 passed on I.A.Nos.3 and 4 filed in O.S.No.72/2015 on the file of the Additional Senior Civil Judge, Udupi is set aside. The Matter is remanded to the trial Court to reconsider I.A.Nos.3 and 4 only to the relief sought for in the said applications and pass orders strictly in accordance with law.
In view of disposal of the appeal, I.A.No.2/2017 filed for vacating interim order does not survive for consideration.
Sd/- JUDGE bkp