IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.3762/2019(CPC) BETWEEN:
SMT.BHAGYALAKSHMI W/O SRI B JAYARAM AGED ABOUT 45 YEARS R/AT No.41/42 MARUTHI LAYOUT HANUMANTHNAGAR BILESIVALE, DODDAGUBBI POST BENGALURU – 560 049.
(BY SRI H P LEELADHAR, ADVOCATE) AND:
1.M KRISHNAPPA S/O MUNISWAMAPPA AGED ABOUT 70 YEARS.
2.K. NARAYANA S/O M KRISHNAPPA AGED ABOUT 47 YEARS.
BOTH ARE R/AT No.3 DODDAKALLASANDRA VILLAGE, KANAKAPURA MAIN ROAD, SUBRAMANYAPURA PANCHAYATH, BENGALURU SOUTH TALUK BENGALURU.
…APPELLANT 3.M/S. COMFORT BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM (R) HAVING ITS OFFICE, No.2, NORTH PARK ROAD, KUMARA PARK EAST, BENGALURU- 560 001.
4.SRI T.NARASIMHA MURTHY MAJOR IN AGE, FATHER NAME NOT KNOW TO THE APPELLANT, M/S. COMFORT BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM (R) HAVING ITS OFFICE No.2, NORTH PARK ROAD, KUMARA PARK EAST, BENGALURU-560 001.
AND ALSO OFFICE AT No.4705, 7TH FLOOR, HIGH POINT BUILDING-4 PALACE ROAD, BENGALURU-560 001.
5.SRI.GOPAL P S/O LATE PILLA ANJINAPPA, R/AT No.29, KANNAMANGALAPALYA, KANNAMANGALA POST, DEVANAHALLI TALUK BENGALURU-560 010.
6.SMT.VAJRAMMA W/O LATE BYANNA, C/O VIJAYAKUMAR B AGED ABOUT 85 YEARS No.65/6, 2ND FLOOR MARIKAMBA NILAYA, SBM ROAD, BALAJI ROAD, WARD No.184 UTTARA HALLI, BENGALURU-560 061.
7.SHANTHAKUMARI D/O BAIYYAMMA AGED ABOUT 47 YEARS R/AT No.212, LINGAYATHARA BEEDI, KENGERI, BENGALURU- 560 020.
8.RAMANJINAPPA S/O LATE VENKATASWAMAPPA AGED ABOUT 44 YEARS R/AT No.2, 3RD FLOOR, 1ST MAIN, 4TH CROSS, MUNIVEERAPPA LAYOUT, SHAMPURA, BENGALURU-560 045.
9.V DEVARAJA S/O LATE VENKATASWAMAPPA AGED ABOUT 42 YEARS R/AT No.2, 1ST FLOOR, N.NAGENAHALLI, BASAVESHWARA NAGAR, MUNIYAPPA LAYOUT, KOTHANUR POST, K.R.PURA HOBLI, BANGALORE-560 077.
10.CHANDRAKALA D/O BAIYAMMA W/O MANJUNATHA AGED ABOUT 28 YEARS R/AT No.166, KOTHANUR POST, BANGALORE-560 077.
11.SHAKUNTHALA D/O BAIYYAMMA W/O LATE SURESH AGED ABOUT 30 YEARS R/AT No.38, 6TH CROSS 1ST BLOCK, MARUTHI LAYOUT BASAVESHWARANAGAR BANGALORE-560 079.
12.SHIVAKUMAR S/O LATE VENKATASWAMAPPA AGED ABOUT 30 YEARS R/AT No.2, 1ST FLOOR N. NAGENAHALLI BASAVESHWARANAGAR KOTHNUR POST K.R.PURA HOBLI BANGALORE-560 077.
13.SHASHIKALA W/O BHASKAR R/AT No.38, 6TH CROSS 1ST BLOCK, 3RD STAGE MARUTHI LAYOUT BASAWESHWARANAGAR BANGALORE-560 060.
...RESPONDENTS (BY SRI Y.V. PRAKASH, ADVOCATE FOR SRI Y K NARAYANA SHARMA, ADVOCATE FOR CAVEATOR R-3 AND 4 SRI L VENKATARAMA REDDY, ADVOCATE FOR CAVEATOR R-1) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 15.03.2019 PASSED ON IA No.6 O.S.No.3894/2011 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH No.3), RECALLING THE STATUS QUO ORDER DATED 16.12.2015.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the plaintiff/appellant is directed against the order dated 15.03-2019 passed by the XV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.3894/2011, wherein I.A.No.6 filed by the plaintiff under order XXXIX Rules 1 and 2 read with Section 151 CPC was dismissed as not maintainable.
2. In order to avoid overlapping and confusion, parties are addressed with reference to their ranks and status held by them before the trial Court.
3. Suit was filed by the plaintiff/appellant Smt.
K.Bhagyalakshmi seeking partition of the suit schedule properties which consisted of three items of the properties on the date of filing of the suit against the defendants/respondents. However, in the later circumstances, six more properties are included and as on today, there are nine properties as submitted by the plaintiff.
4. Learned counsel for plaintiff/appellant Mr.H.P.Leeladhar would submit that without giving opportunity for presenting the case in full and ignoring the state of affairs, the learned trial Judge has rejected I.A.No.6 that was pending for grant of injunction. He would further submit that there was no default or lapses on the part of the plaintiff, but she has become the victim for no fault of her.
5. Learned counsel Sri. L.Venkatarama Reddy for 1st respondent and Sri. Y.V Prakash, for Sri. Y.K.Narayana Sharma, for 3rd and 4th respondent would submit that the application filed by the plaintiff in the form of IA No.6 for grant of injunction was in consistent with the enabling order passed by this Court in MFA No.9647/2012.
6. The matter involves two phases. One being the records and passing of the order on material procedural aspects and another is on the substantive aspect of entitlement or otherwise of the interlocutory order.
7. The suit was filed on 03-06-2011 for partition and separate possession along with the application for injunction. The learned trial Judge granted exparte order of status quo on 04.06.2011. However, on appearance, the same was challenged by the defendants. The trial Judge by order dated 24.9.2011, dismissed IA.1. Thereafter, plaintiff preferred an Miscellaneous First Appeal before this Court in MFA No.9647/2011 which came to be disposed of on 20-07- 2012 ending the appeal by recording the submission of the appellant dismissing the appeal, however, reserving liberty to the plaintiff/appellant to file a fresh application for injunction after all joint family properties are included and after all necessary parties are impleaded.
8. It appears that the plaintiff had not impleaded all the necessary parties and included the properties, hence, the appeal was dismissed and the liberty that was given to the plaintiff was a conditional one. Thereafter, plaintiff filed an application for impleading the left out necessary parties, i.e., to implead defendants 3 and 4 and filed application on 18.8.2014 defendants 5 to 13. Incidentally, plaintiff filed a memo for not pressing the application filed for impleading defendants 5 to 13 and the same was allowed. Application to include the left out properties was made on 10.01.2012 and it is numbered as IA No.2/2012. Thus, the above applications were pending before the trial Court for consideration. Meanwhile, it is necessary to note the fact that the applications filed to implead defendants 5 to 13 under order 1 Rule 10 CPC in IA No.2 were supposed to have been filed by the plaintiff in order to make subsequent application for grant of injunction order. The learned trial Judge disposed of the applications and passed the order on 15.3.2019. The operative portion of the said order reveals the following:
“IA No.2 filed by the plaintiff under order 39 rule 1 and 2 read with Section 151 of CPC is dismissed as not maintainable. IA No.1/18 and IA No.2/18 filed by the defendant No.1 and 2 under section 151 of CPC are allowed. The status quo order dated 16.12.2015 is recalled.
The parties shall bear their own costs.”
9. The consideration in substance by the learned trial Judge for dismissing the application filed for injunction under order 39 Rules 1 and 2 read with Section 22(1) CPC marked as IA NO.6 is without fulfilling or complying the mandate issued by this Court in order dated 20.7.2012 passed in MFA No. 9647/2012.
10. The learned counsel for respondents would submit that the orders were passed on three applications i.e. IA No.6, IA No.1/2018 filed to recall the status quo order and IA 2/2018 filed by the defendants to dismiss I.A.NO.6 as not maintainable.
11. Learned counsel Sri.L Venkatarama Reddy for defendant No.1 would submit that on the date of filing of the application for temporary injunction subsequent to the order passed by this Court in MFA No.9647/2012, the plaintiff was duty bound to comply with the requirements that the left out properties and parties ought to have been brought on record. However, this did not happen and hence, the application deserves to be rejected and accordingly, the trial Judge has rejected the same being violative of conditions imposed by this Court.
12. Meanwhile, it is also necessary to observe that plaintiff, who had filed applications for impleading defendants 3 and 4 and defendants 5 to 13 and also filed a memo on 04.12.2016 to dismiss the suit against defendants 5 to 13 by averring of settlement between those defendants and plaintiff which was allowed. However, the said defendants 5 to 13 chose to come voluntarily to the proceedings by making an application. In the circumstances, the procedural irregularity of the plaintiff is that, she made an application, but belatedly. Regard being had to the fact that the said applications were pending for disposal on 15.03.2019. However, application for amendment of the plaint for including the left out properties was disposed of on the same day itself in the common order. Insofar as impleading applications are concerned, the parties are already come on record. With this in the background, learned trial Judge dismissed the application filed under order 39 Rules 1 and 2 as not maintainable as it is premature. At page No.12 of the order, the observation of the trial Judge is as under:
“Hence, the filling of the application for injunction by the plaintiff prior to disposal of the I.A No.2, is violation of the order of the Hon’ble High Court. As such, the application is not maintainable has contended by the defendant Nos.1 and 2 is IA’s1/18 and 2/18. Since I.A.No.6 is not maintainable, the order of status quo order on 16.12.2015 has to be recalled.”
In the same para, regarding IA No.2, it is stated as under:
“But, I.A.No.2 which is filed to include some more properties is pending and it is not yet disposed. It is posted for order today along with this order. As such, the application is not yet disposed off and all the joint family properties are not yet included in this case.”
13. The trial Judge was bound to look into the cumulative effect of the order. Thus, it was the duty of the Court to dispose of the application filed under order 39 Rules 1 and 2 CPC filed for grant of injunction.
14. Learned counsel Sri.L Venkatarama Reddy for 1st defendant would submit that though three orders are passed on 15.3.2019, plaintiff has challenged the orders passed on IA No.6 and not the rest. In substance, it does not make any difference as the cumulative effect of IA No.6 and IA No.2 are literally same. Regard being had to the fact that IA filed under Order 39 Rules 1 and 2 is for injunction. In the overall circumstances of the case, the judicious mind should have prevailed on the trial Judge to consider the merits of the application on record and dispose of the same on merits, whether to allow it or to reject in his wisdom. Without resorting to such practice, dismissing the application as not maintainable is neither proper nor fair. The approach of the trial Judge appears to be hurried one, wherein the primary objective is forgotten in the wake of disposing of the two applications. However, the order in its present shape i.e. on maintainability alone is irregular and is liable to be set aside. However, deciding of the application is the domain of the court by considering the status of the case by virtue of the disposal of IA No. 2 and the left out parties being the present in the suit as defendants 3 to 15 and 4th defendant being purchaser. Thus being equipped with full fledged material on the left out properties and the parties as defendants, the application deserves to be adjudicated by the trial Judge as per law.
15. In the result, the appeal is allowed. The order dated 15th March 2019 passed on I.A.No.6 in O.S.No.38954/2011 is set aside.
16. The matter is remanded to the trial Court with a direction that the application to be disposed of considering the materials with reference to the defendant Nos.1 to 13 and the schedule properties that were included.
Considering the passage of time already occurred and the error happened in the previous phase, it is desirable that IA No.6 be disposed of as expeditiously as possible, however, within an outer limit of two months from the date of receipt of the copy of this order.
tsn* Sd/- JUDGE