IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS.JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.1038/2019 BETWEEN:
1. Smt. B.M.Ramadevi, Aged about 55 years, W/o. Late S.A. Babu Reddy, 2. B. Sathish Kumar, Aged about 34 years, S /o. Late S.A. Babu Reddy, 3. Smt. S.M.Mamatha, Aged about 36 years, D/o. Late S.A. Babu Reddy, W/o/ Umesh Muni Reddy, 4. Smt. B. Divya, Aged about 32 years, D/o. Late S.A. Babu Reddy, W/o. Abhishek Reddy, All are residing at No.7, 7th Cross, 35th Main, Behind Central Silk Board, BTM Layout, 2nd stage, Bengaluru – 560 068.
(Appellants 1, 3 and 4 are represented by their GPA Holder – 2nd appellant) B. Sathish Kumar, Aged about 34 years, S/o. Late S.A. Babu Reddy, R/at. No.7, 7th Cross, 35th Main, Behind Central Silk Board, BTM Layout, 2nd stage, Bengaluru – 560 068.
…APPELLANTS (BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR SRI. K. SUBRAMANYAM, ADVOCATE) AND:
1. Sri. V. Suresh, Aged about 40 years, S/o. G.N. Venkatesh, R/at No.40, Garvebavi Palya, Madiwala Post, Bengaluru – 68.
2. Smt. Jalajakshi, Aged about 49 years, W/o. Sri. P.Muniswamy, R/at. No.30 /26, Behind Canara Bank, Hosur Main Road, Madiwala, Bengaluru – 68.
3. Sri. P.Muniswamy, Aged about 56 years, S/o. Pillappa, No.30/26, Behind Canara Bank, Hosur Main Road, Madiwala, Bengaluru - 68.
4. Sri. Suresh S.
Aged about 43 years, S/o. Srinivasaiah Setty, R/at No. 55, Venkateswara Nilaya, 4th Cross, Krishnamurthy Layout, D.R. College Post, Bengaluru – 560 029.
5. Sri. Pradeep Kumar Manderawa, Aged about 45 years, S/o. late Venkatesh Rao, R/at. No.150-B (1722), 30th Cross, 2nd Block, Rajajinagar, Bengaluru – 560 002.
6. Kumari Sharada, Aged about 32 years, D/o. T.Banappa, R/at. No. 745, 2nd Cross, 13th Main, 7th Cross, BTM Layout, 2nd Stage, Bengaluru – 560 076.
7. Smt. P.Vishalakshi, Aged about 43 years, W/o. P. Shankar, R/at. No.L-42, Rathnamanikya Nilayam, 2nd Floor, B-Flat, 15th Cross, 2nd ‘A’ Main, HSR 6th Sector, Bengaluru – 560 102.
8. Smt. Nagalakshmi, Aged about 45 years, W/o. G.K. Murthy, R/at. No. 126/5, 3rd Cross, Opp. To Lake Hosapalya, Bengaluru – 560 068.
9. Sri. Lokesh Reddy P. Aged about 46 years, S/o. Papi Reddy, R/at Channappa Reddy Layout, Rupena Agrahara village, Bengaluru – 560 068.
10.Kum. Shyla B., Aged about 30 years, D/o. Byya Reddy, R/at. No.14 & 15, Bank Colony, Begur Main Road, Near Canara Bank, Bengaluru – 560 068.
11.Sabu Varkey, Aged about 43 years, S/o. C.T.Varkey, R/at. No.21, 8th cross, Maruthinagar, Madiwala, Bengaluru – 560 068.
12.Sri. Chendrasekhar, Aged about 53 years, S/o. Ranganatham.
13.Smt.Sujatha, Aged about 41 years, W/o. Chendrasekhar, Respondents 12 and 13 are Residing at 8th Block, Koramangala, Bengaluru – 560 095.
... RESPONDENTS (BY SRI. S.Y. KUMBAR, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 21.01.2019 PASSED ON I.A.NO.2 IN O.S.NO. 3415/2018 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU (SCCH-28), REJECTING I.A.NO.II FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appellants filed O.S.No.3415/2018 against the respondents for permanent injunction in respect of lands bearing Sy.No.15 measuring 2 acres 4 guntas and Sy.No.68/1 measuring 34 guntas situated at Parappana agrahara, Begur Hobli, Bengaluru South Taluk.
2. Sy.Nos.15 and 68/1 were in all measuring 2 acres 18 guntas and 2 acres 19 guntas respectively. Those lands belonged to one Abbaiah Reddy. Muni Reddy and Anand Reddy are sons of Abbaiah Reddy.
They entered into an agreement of sale with one Babu Reddy on 05.12.1993 regarding 2 acres 4 guntas in Sy.No.15 and 34 guntas in Sy.No.68/1.
3. On 10.03.2004, Babu Reddy filed O.S.No.1748/2004 against the said vendors and others (defendants 1 to 9). Whereas Nagaveni and Ramaswamy Reddy got themselves impleaded as defendants 10 and 11 claiming that they have certain interest in the property.
4. Defendants 1 to 9 therein did not contest the suit. Defendant Nos.10 and 11 contended that before the agreement of sale set up by Babu Reddy, out of those lands vendors sold them four sites. Ultimately, Babu Reddy entered into a compromise with them and gave up the claim against them. Suit came to be decreed on 01.10.2011 against defendants 1 to 9.
5. Babu Reddy filed Ex.No.2903/2011.
Respondents 5 to 9 filed applications under Order XXI Rule 97 read with 101 CPC in Ex.No.2903/2011 claiming that they have independent interest in the property. Those applications came to be allowed on 22.04.2014. Babu Reddy challenged the said order before this Court in W.P.No.27137/2014. This Court by order dated 07.10.2015 allowed the said writ petition dismissing the applications of respondents 5 to 9.
6. Respondents 5 to 9 challenged the said order in SLP.No.35529/2015. On their request, vide order dated 22.01.2016, the Hon’ble Supreme Court permitted them to withdraw the said SLP with liberty to them to take recourse to appropriate proceedings available as per law.
7. Thereafter, they filed O.S.1643/2016, O.S.8485/2016, O.S.3701/2016, O.S.3737/2016, O.S.5695/2016, O.S.3736/2016 and O.S.3748/2016 for declaration of their title to the properties mentioned therein and that the decree passed in O.S.No.1748/2004 does not bind them and for permanent injunction.
8. Babu Reddy died on 25.07.2017. The appellants, who are the legal representatives of Babu Reddy, filed O.S.No.3415/2018 before the Trial Court claiming that respondents herein who have no interest in the property are obstructing their peaceful possession and sought decree of permanent injunction against them. They also filed I.A.2 for grant of exparte temporary injunction. Initially temporary injunction was granted.
9. On appearance of the respondents, the Trial Court heard I.A.2 and by the impugned order, rejected the said application of the appellants on the following grounds:
1. since the appellants have obtained decree for specific performance, if at all there is any obstruction by the respondents, their remedy is to proceed under Order XXI Rule 32 CPC;
2. the appellants suppressed the material fact of the respondents filing several suits in the year 2016;
3. the documents produced by the defendants show that the suit for injunction filed by them decreed in respect of the very same subject matter.
10. Smt.Susheela, learned Senior Counsel appearing for Sri.K.Subramanyam, advocate on record for the appellants seeks to assail the impugned order on the following grounds:
(i) that defendants in O.S.No.3415/2018 were not parties to O.S.No.1748/2004. Therefore, observation of the Trial Court that plaintiffs should proceed only under Order XXI Rule 32 CPC is erroneous;
(ii) summons in the suits filed by the respondents were served on the appellants only after they filing O.S.No.3415/2018 and therefore, they were not aware of the pendency of those suits. Therefore, there was no occasion for them to disclose that fact in their suit;
(iii) there is difference between suppression of material fact and suppression of material particulars; since the appellants were unaware of pendency of respondents’ suits of the year 2016, no malafides could be attributed for not divulging the same in their plaint and in their application for injunction.
11. In support of her contentions, she relies upon the following judgments:
(i) HARKIRAT SINGH Vs. AMARINDER SINGH - AIR 2006 SC 713;
(ii) NTI HOUSING CO-OPERATIVE SOCIETY LIMITED Vs. V.RAJANNA - MFA.1673/2014 DATED 28.03.2014;
(iii) MAHARWAL KHEWAJI TRUST (REGD.), FARIDKOT Vs. BALDEV DASS - AIR 2005 SC 104.
12. Per contra, learned counsel for the respondents seeks to justify the impugned order on the following grounds:
(i) the agreement of sale set up by the plaintiffs was dated 05.12.1993 and even before that there was partition between the sons of Abbaiah Reddy, they had formed layout on the land allotted to their respective shares and defendants have purchased different sites of different dimensions from them commencing from 1987 till 2004 on different dates and in some sites, they have put up construction and they are in actual possession of sites purchased by them respectively;
(ii) having sold the properties, defendants 1 to 9 in O.S.No.1748/2004 did not contest the said suit and the decree in favour of Babu Reddy in that suit was the outcome of collusion between him and defendants 1 to 9 and that does not bind them;
(iii) respondents 1 to 9, after withdrawing the SLP, filed suits individually in respect of properties purchased by them before the City Civil Court, Bengaluru and in those suits, interim orders were passed against Babu Reddy against alienation of the suit schedule properties and in some cases to maintain status-quo;
(iv) pending those suits, the present suit was filed and in view of the interim orders in the suits filed by respondents 1 to 9, the Trial Court has rightly rejected the injunction application.
13. Having regard to the rival contentions, the question that arises for consideration of this Court is:
Whether the Trial Court was right in refusing the injunction order to the appellants?
14. The factors required to be considered by the Court in the application filed seeking temporary injunction are :
(i) Whether the applicant has made out a prima facie case of his lawful possession of the property as on the date of the suit?
(ii) Whether rejection of the order of injunction causes irreparable injury to the plaintiffs?
(iii) In whose favour balance of convenience lies?
15. In the case on hand, there is no dispute about the property belonging to Abbaiah Reddy and his sons initially. There is also no dispute that on suit being filed by Babu Reddy against his vendors, a decree for specific performance was granted and that attained finality since the defendants therein did not challenge the same.
16. It was brought on record of the Trial Court that even prior to the agreement of sale in favour of Babu Reddy, Muni Reddy and Anand Reddy, who were defendants 1 and 9 in O.S.No.1748/2004, and their brother Raghuram Reddy (who was not a party to the agreement of sale dated 05.12.1993), themselves and in several cases through their General Power of Attorney holder, sold several sites to the respondents herein under several registered sale deeds.
17. Respondents claim that the sites so sold to them fall within the land which is the subject matter of O.S.No.1748/2004. Whereas the appellants claim that the sites so sold to respondents herein do not fall in the said lands, as the layout plan or other documents produced by the respondents clearly state those sites do not fall within the property which is the subject matter of O.S.No.1748/2004.
18. Admittedly, the respondents after withdrawal of SLP filed by them, filed several suits against Babu Reddy and their vendors claiming that the judgment and decree passed in O.S.No.1748/2004 was collusive one and that does not bind their interest and also for declaration of their title and permanent injunction.
After the death of Babu Reddy, the present appellants were brought on record as his legal representatives in those suits. Temporary injunction orders were passed in those suits against Babu Reddy or anybody claiming under him. The said orders are still in operation.
19. It is submitted that those suits were assigned to two different City Civil Judges, therefore, the appellants filed Misc.No.1/2019 under Section 24 CPC before the Principal City Civil Judge, Bengaluru, for withdrawal of those suits from different courts and to assign them to single court for consolidation of those suits and for disposal.
20. Coming to the aspect of prima facie case of right of the parties, on one hand, the appellants have a judgment and decree passed in their favour which is so far not set aside by any Court. On the other hand, respondents have registered Sale Deeds executed by the very same vendors and their brother Raghuram Reddy in their favour and temporary injunction orders passed in those suits against the appellants.
21. Respondents claim that they purchased vacant sites. Now the suits filed by the respondents before the competent court challenging the validity of the decree are pending for adjudication. The identity of the properties is also in dispute. So far as the vacant land, the legal proposition is that the title follows possession.
22. Since the respondents were not parties to O.S.No.1748/2004 and Ex.No.2903/2011 and since their obstruction application was rejected, the Trial Court committed an apparent error in holding that remedy of the appellants was to proceed under Order XXI Rule 32 CPC. The complicated issue of title of the parties was involved in the present case. Under such circumstances, the Trial Court was not right in outrightly rejecting the application for temporary injunction.
23. The appellants claim that respondents are trying to dispossess them. Respondents claim that appellants are trying to put up construction on the sites sold to them thereby altering the nature of the properties. Therefore, either rejection of the injunction in its entirety or granting of injunction overlooking the order of injunction passed against the appellants in the suits filed by the respondents cause irreparable injury to both the parties and that imbalances the convenience of both the parties. The proper course the Trial Court could have followed is directing both the parties to maintain status-quo, in the sense that they should not alter the nature of the properties to the extent of the claim of the respondents. Therefore, the appeal is partly allowed.
24. The impugned order dated 21.01.2019 passed by the XIV Additional City Civil Judge, Bengaluru, on I.A.2 in O.S.No.3415/2018 is hereby modified as follows:
(i) I.A.2 filed by the plaintiffs under Order XXXIX Rules 1 & 2 CPC is hereby partly allowed.
(ii) Both the parties shall not alter the nature of the sites said to have been purchased by the defendants /respondents, till the disposal of the suit.
(iv) Both the parties shall co-operate for getting the concerned suits transferred to one court and for disposal of the same as early as possible.
In view of disposal of the appeal, I.A.1/2019 filed seeking temporary injunction also stood disposed of.
Sd/- JUDGE PKS