IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.1281/2017 (CPC) BETWEEN:
1. SMT. JAGADHEESHWARI W/O ANNAPPA D HUGAR AGED ABOUT 55 YEARS (FORMERLY R/A SRI. MARUTHI MANDIRA, NO.15/8-1 LAKSHMAIAH ROAD HALASURU BENGALURU – 560 008) PRESENTLY AT R/A NO.23, ‘A’ 1ST STREET MILKMAN STREET, ULSOOR BENGALURU – 560 008 2. SRI.VITTAL KAMATH H S/O H.D. RAO AGED ABOUT 53 YEARS R/A NO.86, 13TH ‘A’ MAIN H.A.L. 2ND STAGE BENGALURU – 560 008 ... APPELLANTS (BY SRI.RAJESWARA P.N., ADV.) AND:
1. SMT. V.SUSHEELA W/O LATE VISHWNATHAN AGED ABOUT 62 YEARS R/A NO.17-A, G1 KHIVIRAJ MANASAROVAR LAKSHMIPURAM, CHROMPET CHENNAI – 600 044 ALSO AT NO.73, G STREET JOGPALYA, HALASURU BENGALURU – 560 008 2. SRI. N NANDEESH S/O LATE VISHWANATHA AGED ABOUT 38 YEARS R/A NO.18/8TH MAIN ORCHID – II APARTMENTS NANJAPPA LAYOUT YELACHEYANALLI KANAKAPURA ROAD BENGALURU – 560 078 … RESPONDENTS (BY SRI. G.PAPI REDDY, ADV., FOR R2;
SMT. NIVEDITHA PREM, ADV., FOR C/R2; R1 IS SERVED & UNREPRESENTED) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 30.01.2017 PASSED ON I.A.NO.3, 4 & 6 IN O.S.NO.26250/2013 ON THE FILE OF THE IV ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, ALLOWING I.A.NO.3, 4 & 6 FILED U/O 39 RULE 1 & 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The present appeal is filed by the defendants against the order dated 30.01.2017 passed on IA Nos. 3, 4 and 6 of 2015 made in O.S.No.26250/2013 filed by the plaintiff granting temporary injunction restraining the defendants from alienating or creating third party interest and also from inducting third parties/tenants/lessees and also starting a bar or restaurant in the suit schedule property and further directing the defendant Nos. 2 and 3 temporarily starting the business of the bar and restaurant in the suit schedule property.
2. The second respondent who is the plaintiff before the trial court filed the suit for partition and separate possession in respect of the suit schedule property contending that the suit schedule property is the joint family property and plaintiff is entitled for his share. The defendant Nos. 2 and 3 filed written statements denied the plaint averments and contended that the first defendant who was the mother of the plaintiff has already sold the suit schedule property in favour of the second defendant on 03.05.1997 for valuable consideration. Therefore, sought for dismissal of the suit.
3. During the pendency of the proceedings, the plaintiff filed IA No.3/2015 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure (for short ‘CPC’) to restrain the defendants from alienating or creating any third party interest, IA No.4/2015 under Order XXXIX Rules 1 and 2 for restraining the defendants from inducting third parties/tenants/lessees and IA No.6/2015 filed against defendant Nos. 2 and 3 under Order XXXIX Rules 1 and 2 of CPC praying not to start the business of the bar and restaurant in the suit schedule property. Reiterating the averments made in the plaint, the same was opposed by the defendant Nos. 2 and 3 by filing objections.
4. The trial court considering all the three applications and the objections, by the impugned order dated 30.01.2017 allowed the applications and granted temporary injunction as sought for. Hence the present appeal is filed.
5. When the matter came up for admission on 08.08.2017, Sri. Rajeswara, learned counsel for the appellants submitted that even before granting the interim order of temporary injunction by trial court on 30.01.2017, the defendants have already constructed a building and third parties are already inducted. The same was disputed by the learned counsel for the plaintiff-respondent No.2 Sri. G. Papireddy and submits that as on the date of interim order, there was no induction of any person and construction was not at all taken place. Therefore, this court directed the appellant to file an affidavit to that effect.
6. Accordingly, the appellant filed an affidavit on 16.08.2017 and specifically stated on oath that as on date of the temporary injunction granted, they had completed the construction in the year 2013 itself and inaugural function took place on 12.08.2013. It is to be noted that only after being invited for the inaugural function, the suit was filed on 07.08.2013 and inducted the Krishna Enterprises, a Partnership firm in which the appellant is also one of the partners issued CL-7 License by the State Excise Department on 24.09.2015 and same was renewed on 29.06.2016 for the year 2016-17 and the katha was also made in the name of the of the first appellant and M/s. Krishna Enterprises jointly for the total built up area. The said affidavit filed by the appellant is not disputed by the learned counsel for the defendant- respondents.
subsequent development as per the affidavit, the plaintiff will confine only to IA No.3/2015 which is filed under XXXIX Rules 1 and 2 restraining the defendants from alienating or creating any third party interest in respect of the suit schedule property.
The said submission is placed on record.
8. Accordingly, IA Nos.4 and 6 which are field by the plaintiff is disposed off as not pressed.
9. At this stage, Sri. Rajeswara learned counsel for the appellants submit that the appellants will not alienate the suit schedule property till the disposal of the suit pending adjudication between the parties or create any third party interest to that effect and he will file necessary affidavit before this court.
The said fair submission is also placed on record.
10. In view of the aforesaid submission made by the learned counsel for the parties, without adverting to the merits and demerits of the appeal or the suit pending adjudication between the parties, it is suffice to restrain the appellants to alienate or create any third party interest over the suit schedule property till the disposal of the suit and the trial court is directed to expedite the trial and the suit subject to cooperation of the parties to the lis.
11. Accordingly, the impugned order passed by the trial court is modified.
The order passed by the trial court granting injunction in favour of the plaintiff restraining the appellants/defendants from alienating or creating any third party interest over the suit schedule property is affirmed.
The Registry is directed to send back the LCRs forthwith.
Sd/- JUDGE Bsv