IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.30182/2019 (GM-CPC) Between Sri K.L.Anantha Padmanabhasa S/o. Late Sri K. Lakshmanasa Aged about 77 years Residing at 9, Seshadri Road Gandhinagara Bengaluru – 560 009. ... Petitioner (By Sri Abhinav Ramanand, Adv.) And 1. Smt.Chandraprabha D/o. Late Lakshmidevei W/o. H.C.Shashikanth Aged about 65 years Occ: Household & Business R/at No.16/11, BMK Layout Vittal Nagar, 2nd Main, 9th Cross Bengaluru – 560 026.
2. Smt. Swayam Prabha D/o. Late Lakshmidevi W/o. Sri D.G.Shankar Aged about 56 years Occ: Household & Business R/at No.140, 6th Cross 2nd Floor, Bapuji Layout Chandra Layout Bengaluru – 560 040.
3. Smt. Sathya Prabha D/o. Late Lakshmidevi W/o. H.S.Rajagundu Aged about 55 years Occ: Household & Business R/at No.7, NHCS Layout Kaveri Nagar, Nagarbhavi Bengaluru – 560 079.
4. Smt. Savithri D/o. Late Lakshmidevi W/o. S.S.Manjunath Aged about 51 years Occ: Household & Business R/at No.23 1st Anjaneya Temple Street Link Road, Seshadripuram Bengaluru – 560 020.
5. Sri K.L.Ramachandra SA S/o. Late K.Lakshman Sa Aged about 87 years Occ: Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009.
Sri K.L.Narayan SA S/o. Late Sri. K. Lakshman Sa Since deceased Rep. by his LRs 6. Smt. Padmavati W/o. Late K.L.Narayan Sa Aged about 78 years Occ: Household & Business KLN House, No.72/1-5 Cunningham Road Near Hoodi Apartments Bengaluru - 560 001.
7. Smt. Suvarna D/o. Late K.L.Narayan Sa W/o. Sri Krishna Aged about 65 years Occ: Household & Business R/at New No.34, Old No.27 2nd Main Road, 7th Cross N.R.Colony Bengaluru – 560 001.
8. Sri K.N.Eshwar S/o. Late Narayan Sa Aged about 61 years Occ: Business KLN House, No.72/1-5 Cunningham Road Near Hoodi Apartments Bengaluru – 560 001.
9. Sri K.N.Venkusa S/o. Late Narayan Sa Aged about 59 years Occ: Business KLN House, No.72/1-5 Cunningham Road Near Hoodi Apartments Bengaluru – 560 001.
10. Smt. Anuradha D/o. Late Narayan Sa W/o. Sri Amarnath Aged about 58 years Occ: Household & Business R/at No.30, Angadi Beedhi Near Mallikarjun Temple Basavangudi Bengaluru – 560 004.
11. Sri K.N.Madhusudhan S/o. Late Narayan Sa Aged about 61 years Occ: Business KLN House, No.72/1-5 Cunningham Road Near Hoodi Apartments Bengaluru – 560 001.
Late K.L.Shrihari S/o. Late K.L.Lakshman Sa Since deceased Rep. by his LRs 12. Smt. Rajalakshmi W/o. Late Sri K.L.Srihari Aged about 70 years Occ: Household & Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009.
13. Sri K.H.Gurunath S/o. Late Sri K.L.Srihari Aged about 57 years Occ: Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009.
14. Smt. Dhanalakshmi D/o. Late Sri K.L.Srihari W/o. Sri Kishan S. Magaji Occ: Household & Business Aged about 55 years R/at No.603, 6th ‘A’ Main 11th Cross, 3rd Phase, J.P.Nagar Bengaluru – 560 078.
15. Sri K.H.Srinivas S/o. Late Sri K.L.Srihari Aged about 54 years Occ: Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009.
16. Sri K.H.Radeshyam S/o. Late Sri K.L.Srihari Aged about 52 years Occ: Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009.
17. Smt. Hemamalini D/o. Late Sri K.L.Srihari W/o. Sri Giridhar Jithuri Aged about 42 years Occ: Household & Business R/at No.405, 10th Cross 5th Main, RMV Extension, 2nd Stage Dollars Colony, New BEL Road Bengaluru – 560 094.
18. Smt. Vijayanthimala D/o. Late Sri K.L.Srihari W/o. Sri Raghavendra Aged about 38 years Occ: Household & Business R/at No.123, RMV Extension 2nd Stage, 2nd Main Road 7th Cross, Dollars Colony New BEL Road Bengaluru – 560 094.
19. Sri K.L. Swamy S/o. Late Sri K. Lakshmanasa Aged about 71 years Occ: Business R/at No.9, Seshadri Road Gandhinagar Bengaluru – 560 009 And also R/at No.17 7th Mile, Brewery House Konanakunte, Kanakapura Road Bengaluru – 560 062.
20. Smt. Gowramma D/o. late K. Lakshmanasa W/o. Sri Chandramohan Aged about Major R/at Rangarao Road Opp: Shilpa Apartments Shankarpuram Bengaluru – 560 004.
21. Sri M.M.Ananthamurthy S/o. Late Smt.Lakshmidevi & Late Sri M.S.Mahaveerasa Aged about 62 years Occ: Household & Business R/at No.360, 1st Main, 7th Cross M.S.Ramaiah North City Thanisandra Main Road Bengaluru – 560 077.
22. Smt. Suryaprabha D/o. Late Smt. Lakshmidevi & W/o. S.D.Muniswamy Aged about 52 years Occ: Household & Business R/at No.40/1, 3rd Main, 11th Cross Lakshminarayanapura Bengaluru – 560 021.
23. Prestige Estate Projects Ltd.
A Company incorporated under the Companies Act, 1956 Having its registered office at ‘Falcon House’, No.1, Main Guard Cross Road Bengaluru – 560 001.
Rep. by its Managing Director Mr. Irfan Razack. ... Respondents (By Smt.Shobha Patil, Adv. for C/R1 to 4) This Writ Petition is filed under Article 227 of Constitution of India praying to quash Annexure-A order dated 06.07.2019 passed by learned XIV Additional City Civil & Sessions Judge at Bangalore (CCH-28) in I.A.No.3 in O.S.No.4709/2019 and etc.
This Writ Petition coming on for Preliminary Hearing this day, the court made the following:
ORDER The petitioner being defendant No.15 in a partition suit in O.S.No.4709/2019 is invoking Writ Jurisdiction of this Court for laying a challenge to the order dated 06.07.2019, a copy whereof is at Annexure-A, whereby the learned XIV Additional City Civil Judge, Bengaluru having allowed I.A.No.3 filed by the respondents/plaintiffs has granted ad-interim order interdicting the alienation or encumbering of the suit property. He also lays a challenge to the order dated 06.07.2019 whereby the Court below has extended the restraint order, further. The contesting respondents having entered caveat through their counsel, resist the Writ Petition.
2. Learned counsel for the petitioner argues that the Court below could not have straight way allowed the respondents’ application in I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC, 1908 sans notice to the petitioner and other defendants; that having been done, there was no application pending on the file and therefore, the Court below ought not to have favoured the respondents/plaintiffs with the other order elongating the restraint; he points out that all these constitute grave error apparent on face of the record, warranting indulgence of this Court for setting the same at naught.
3. Learned counsel for the contesting respondents/caveators oppose the Writ Petition contending that a Co-ordinate Bench of this Court in the case of Sri C.Shivkumar Reddy vs. ICICI Bank Ltd., 2016 SCC Online Kar 685 of identical circumstances has treated such applications filed under Order XXXIX Rules 1 and 2 of CPC, 1908 as being pending and therefore, the application which is stated to have been allowed by the impugned order may be treated as still pending for consideration; she further submits that an error of law or of facts, regardless of it’s magnitude per se is not a ground for indulgence by the Writ Court in the absence of a cognizable amount of prejudice occasioned, thereby. So contending, she seeks dismissal of the Writ Petition.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants limited indulgence in the matter because:
(a) the Court below although states that the respondents’ application in I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC, 1908 has been disposed off presumably because the order restraining alienation or encumbering of the subject property has been granted; still the justice of the case requires that the said application shall be treated to be pending for consideration afresh, and can be disposed off after hearing both the stake holders;
(b) the Apex Court in a catena of decisions has held that an error of law or of fact per se is not a ground for indulgence in the Writ jurisdiction if otherwise a just result has been brought about by the impugned order; this Court is of a considered opinion that the just result has been brought about by the impugned order, at this stage of the suit; however, the Court below shall consider the application independently disregarding this observation; and, (c) the contention that the application filed under Order XXXIX Rules 1 and 2 of CPC, 1908 having been disposed off, other application filed under Section 151 seeking extension of the restraint order earlier granted is not maintainable, now pales into insignificance in view of reason (a) above.
In the above circumstances, this Writ Petition is disposed off; the Court below shall treat the application in I.A.No.1 filed by the respondents/plaintiffs under Order XXXIX Rules 1 & 2 of CPC, 1908 as still pending and shall - 10 -
hear & dispose off the same in accordance with law, preferably in an outer limit of 30 days.
All contentions of the parties are kept open and the observations made hereinabove shall not influence the trial and disposal of the suit in any way.
No costs.
Sd/- JUDGE KA