IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.7414/2016 (CPC) BETWEEN:
1. SMT. S. SHOBHA, D/O SMT. NARAYANAMMA, AGED ABOUT 46 YEARS 2. SRI RAJATH, S/O SMT. S. SHOBHA, AGED ABOUT 26 YEARS, BOTH ARE R/AT DOOR NO.7, KHB QUARTERS, 2ND BLOCK 1ST BLOCK, JAYANAGAR, BANGALORE-560 011. ... APPELLANTS (BY SRI G. VEERENDRA BABU, ADVOCATE) AND:
SRI CHINNAPPA @ RAJU, AGED ABOUT 42 YEARS, S/O VENKATAPPA, R/AT NO.169, 1ST CROSS, NEAR ANJANEYA SWAMY TEMPLE, MARATHAHALLI, BANGALORE-560 037. ... RESPONDENT ...
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED:29.08.2016 PASSED ON I.A. 1 IN O.S. NO.25853/2015 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, DISMISSING I.A.NO.1 FILED U/O 39 RULE 1 & 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is the plaintiffs’ Miscellaneous First Appeal against the order dated 29.8.2016 passed on I.A.I in O.S.No. 25853/2015 on the file of the XXVIII Additional City Civil Judge, Mayo Hall, Bangalore dismissing the application for temporary injunction.
2. The present appellants, who are the plaintiffs before the trial Court have filed a suit for permanent injunction against the defendant contending that they are the owners of the suit schedule property having been purchased under a registered sale deed dated 23.3.2015 and they are in possession and enjoyment of the same. The plaintiffs have not sold the property to anybody, but the defendant without any manner of right or interest in the suit property is trying to interfere with the plaintiffs’ possession. Therefore, they filed the suit.
3. The defendant filed his written statement denying the entire plaint averments and contended that Smt. S. Vanitha, who is the owner of the suit schedule property, had executed an agreement of sale on 7.6.2013 in his favour for a valuable sale consideration of Rs.20 lakhs, but he had paid only Rs.1 lakhs to her as on the date of the agreement as advance and the sale deed was not executed in his favour. Therefore, he was constrained to file O.S.No.25939/2014 against Smt. S. Vanitha and others, which is still pending for adjudication. He had also filed an application for temporary injunction in the said suit under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 restraining Smt. S. Vanitha and others from creating any charge over the suit schedule property or transferring, alienating or selling the same. The trial Court on 28.6.2014 granted an order of injunction. The present plaintiffs-appellants colluding with Smt. S. Vanitha and others created a sale deed dated 23.3.2015 during the subsistence of the injunction passed by the trial Court. Hence he contended that the plaintiffs are not the owners or the bonafide purchasers and they are not entitled for injunction. Therefore, he sought for dismissal of the suit.
4. During the pendency of the suit, the plaintiffs filed an application for temporary injunction restraining the defendant from interfering with their possession reiterating the plaint averments. The defendant filed objections to the said application reiterating the averments made in the written statement. The trial Court considering the entire material on record, by the impugned order, dated 29.8.2016 dismissed the application for temporary injunction filed by the plaintiffs. Hence, the present appeal is filed.
5. I have heard the learned Counsel for the appellants.
6. Sri G. Veerendra Babu, learned Counsel for the appellants vehemently contended that the impugned order passed by the trial Court rejecting the application for temporary injunction is erroneous and contrary to law. He also contended that the appellants are the owners of the suit schedule property by virtue of the registered sale deed dated 23.3.2015 and hence, they are in possession of the same, but the said material aspect has not been considered by the trial Court. Therefore, he sought to set aside the impugned order passed by the trial Court.
7. In view of the aforesaid arguments advanced by the learned Counsel for the appellants, the only point that arises for consideration in the present appeal is:
Whether the impugned order passed by the trial Court rejecting the application filed by the plaintiffs for temporary injunction is just and proper in the facts and circumstances of the present case?
8. It is the specific case of the plaintiffs-appellants that they are the owner by virtue of the registered sale deed dated 23.3.2015 and they are put in possession of the suit schedule property. It is the specific case of the defendant that he entered into the agreement of sale Vendor of the present plaintiffs – Smt. S. Vanitha on 7.6.2013 for a sale consideration of Rs.20 lakhs and he had also paid an advance amount of Rs.1 lakh as on the date of the agreement. Inspite of request for execution of the agreement, they have failed to execute the document. Therefore, the defendant filed O.S.No. 25939/2014 against Smt. S. Vanitha and others. It is also not in dispute that in the said suit the trial Court granted an injunction in favour of defendant on 28.6.2014 restraining the defendants therein i.e., Smt.
S. Vanitha and others from creating any charge or transferring or alienating or selling the suit schedule property. It is also not disputed by the learned Counsel for the appellants that the said suit is still pending adjudication between defendant and the vendors of the plaintiffs-Smt. S. Vanitha.
9. It is clear from the material on record that during the pendency of the earlier suit, when injunction was operating against the vendor of the present plaintiffs-appellants, the sale deed came to be executed in favour of the present plaintiffs on 23.3.2015 in utter violation of the temporary injunction granted by the trial Court in O.S. No.25939/2014. Therefore, considering the said material on record, the trial Court was of the considered opinion that, the plaintiffs-appellants have purchased the suit schedule property when the said injunction was in force.
10. The main dispute is that the defendant is not allowing the appellants-plaintiffs to collect the rents. The plaintiffs-appellants can take necessary steps to recover the rents, if the rents are not paid to them. It is not necessary that they should go personally to the premises to collect the rents. The rents can be deposited to the bank account. Therefore, there is no balance of convenience in favour of the plaintiff- appellants in granting an order of temporary injunction and no irrepairable injury would be caused to the plaintiffs-appellants, if an order of injunctions is not granted in their favour . Accordingly, the application for temporary injunction is rejected. The same is in accordance with law and hence, the point raised in this appeal is answered in the affirmative.
11. The appellants have not made out any ground to interfere with the impugned order passed by the trial Court in exercise of the appellate jurisdiction under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908. Accordingly, Miscellaneous First Appeal is dismissed.
Nsu/-
Sd/- Judge