IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos. 26600/2018 & 27869-870/2018(GM-CPC) BETWEEN:
SMT. REKHA @ REKHACHANDAN, W/O LATE CHANDAN KUMAR, AGED ABOUT 41 YEARS, D/O SRI.RAMESH CHAND GUPTA, C/O A.K.GUPTA, STREET NO.1, #6, GRATER GREEN PARK, BARELLIY (U.P)-243006. ... PETITIONER (BY SRI. SHARATH S GOGI, ADV.) AND:
1. SMT SUSHILA W/O LATE P BETTEGOWDA, AGED ABOUT 60 YEARS, R/AT NO.G-4, "FLOURISH GURUSHRI" APARTMENTS, ITI LAYOUT, 80 FEET ROAD, ITI LAYOUT, ANNAPURNESHWARI NAGAR, MALLATHALLI, BANGALORE-560056.
2. KUM TAMANA D/O MS. TANIYA, AGED ABOUT 5 YEARS, SINCE MINOR REPRESENTED BY MOTHER AND NATURAL GUARDIAN MS. TANIYA, 3. MS TANIYA AGED ABOUT 29 YEARS, R1 to 3 ARE R/AT NO.G-4, "FLOURISH GURUSHRI" APARTMENTS, ITI LAYOUT, 80 FEET ROAD, ANNAPURNESHWARI NAGAR, MALLATHALLI, BANGALORE-560056.
4. MR K R ANANDA MURTHY S/O LATE R RANOJI RAO, AGED ABOUT 56 YEARS, R/AT NO.582/A, T-1, BALAJIHIGHTS FOUR, 6TH CROSS, 2ND STAGE, II BLOCK, VINAYAKA LAYOUT, NAGARBHAVI, BENGALURU-560072.
5. B G PROPERTIES INDIA PRIVATE LIMITED A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT 1956, SITUATED AT NO.108/07, FIRST FLOOR, ‘NANDANA’, I MAIN, WEDIALAYOUT, CHANDRA LAYOUT, VIJAY NAGAR-560040 REPRESENTED BY ITS DIRECTOR, SRI GANESH RAMALINGU, S/O SRI RAMALINGU, NO.149, HUDCO HOUSE, SUEZDE FARM ROAD, VIDYARANYAPURAM, MYSORE-570008.
6. SRI SURESH K G S/O GANGADHARGOWDA, AGED ABOUT 42 YEARS, # 133, 3RD BLOCK, ULLAL MAIN ROAD, BENGALURU-560056.
7. SRI CHANDRASHEKAR N S/O R D NINGE GOWDA, AGED ABOUT 38 YEARS, R/AT NO.31, LAKSHMI NILAYA, 6TH MAIN, 4TH CROSS, GNANAJYOTHI NAGAR, BANGALORE-560056. …RESPONDENTS (BY SRI. CHANDRAKANTH PATIL.K, ADV. FOR R1, R3, R6 AND R7, SRI. B KESHAVA MURTHY, ADV. FOR R-4, R5 IS SD & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.6.2018 PASSED BY THE LEARNED III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.4111/2018 (ANNEXURE ZB) AND ETC., THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The plaintiff has filed these writ petitions against the order dated 13.06.2018 passed in O.S.No.4111/2018 issuing notices on I.As.1 and 2 and suit summons to all the defendants returnable by 12.07.2018.
2. The plaintiff filed the suit for partition and separate possession in respect of ‘A’ and ‘B’ schedule properties and other reliefs contending that the plaintiff and defendants are the members of joint family and they are entitled to equal share in the suit schedule properties. While filing the suit, she has also filed application for temporary injunction restraining the defendants from alienating or creating any third party interest in respect of suit schedule properties reiterating the averments made in the plaint. The trial court considering the pleadings and the documents produced was of the considered opinion that it is not a fit case to grant ex-parte temporary injunction and therefore, issued emergent notice and suit summons to all the defendants on I.As.1 and 2 by the impugned order dated 13.06.2018. Aggrieved by the same, the present writ petitions are filed.
3. I have heard the learned counsel for the parties.
4. Learned counsel for the petitioner contended that the trial court erred in issuing emergent notice on I.A.s 1 and 2 and suit summons to the defendants without considering the urgency pleaded in I.As 1 and 2 that the defendants are trying to alienate the suit schedule properties. The impugned order is nothing but refusal of temporary injunction sought. He would further contended that when the plaintiff filed the suit for partition and separate possession, the defendants were tried to alienate the suit properties and if the injunction order was not granted it would lead to multiplicity of proceedings and therefore, the trial court ought to have granted temporary injunction sought for by the plaintiff and therefore, he prayed for allowing the writ petitions.
5. Per contra, learned counsel for Respondents 4, 6 and 7 sought to justify the impugned order and contended that the trial court based on the pleadings and documents produced was of the considered opinion that the plaintiff has not made out the case to grant ex- parte Temporary injunction. Therefore, passed the impugned order and the very writ petitions are filed against the issuance of notice and summons are not maintainable and therefore, sought for dismissal of the writ petitions.
6. Having heard the learned counsels for the parties, the undisputed fact that the plaintiff filed the suit for possession in respect of the suit schedule properties contending that the plaintiff and defendants are the members of joint family and the suit properties are the joint family properties and there was no partition and separate possession and she is entitled to share. Along with the suit, she filed the application for grant of temporary injunction apprehending that the defendants are trying to alienate the suit properties and therefore, sought for injunction from alienating the suit schedule properties. The trial court considering the averments and documents produced by the plaintiff, by the impugned order was of the considered opinion that the plaintiff has not made out prima-facie case to grant ex-parte Temporary injunction. The impugned order was passed on 13.06.2018. Even today, the defendants have neither filed objections nor filed written statement.
Once the notice is issued on I.As 1 and 2, it is the duty of the trial court to ensure objections to be filed by the defendants and to dispose of the applications within the time as contemplated under Order 39 Rule 3(A) of Code of Civil Procedure.
7. It is also not in dispute that this Court while issuing emergent notice to the defendants on 02.07.2018, granted temporary injunction restraining the defendants 1, 4 to 7 from alienating the suit schedule properties for a period of eight weeks. In the interest of justice, it is appropriate to direct the defendants to file objection if any within a period of six weeks from today. The trial court shall consider the I.As and objections and pass orders in accordance with law. Till filing of such objections and consideration made by the trial court, the interim order granted by this Court will enure to the benefit of the plaintiff restraining the defendants 1, 4 to 7 are restraining from alienating suit schedule properties and the trial court shall pass appropriate orders in accordance with law independently.
8. With these observations, the writ petitions are disposed of.
Sd/- JUDGE Srl.