IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR MFA.No.7043/2012 (CPC) BETWEEN:
SRI M G SRINIVAS S/O GONAPPA AGED ABOUT 35 YEARS R/A MADIWALA VILLAGE MARSOOR POST KASABA HOBLI ANEKAL TALUK BENGALURU DIST.-562106 ... APPELLANT (BY SRI H P LEELADHAR, ADV.) AND:
1. SMT. YELLAMMA W/O LATE GOPALAPPA @ MUNIYAPPA AGED ABOUT 70 YEARS 2. SMT. RAJAMMA W/O LATE RAMASWAMY D/O LATE GOPALAPPA @ MUNIYAPPA AGED ABOUT 41 YEARS 3. SRI M VENKATASWAMY S/O LATE GOPALAPPA @ MUNIYAPPA AGED ABOUT 38 YEARS 4. SMT. V KANAKA W/O VENKATASWAMY AGED ABOUT 32 YEARS 5. KUM. V MANASAVANNY D/O M VENKATASWAMY AGED ABOUT 14 YEARS 6. MASTER V CHUDESH VANNY D/O M VENKATASWAMY AGED ABOUT 11 YEARS RESPONDENTS NO.5 & 6 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. V KANAKA THE RESPONDENT NO.4 RESPONDENTS NO.1 TO 6 ARE R/A YEDAVANAHALLI VILLAGE AND POST, ATTIBELE HOBLI ANEKAL TALUK BENGALURUR DISTRICT-562107 7. SRI S NARASARAJU SINCE DEAD BY HIS LRS.
7(a) SMT.KANTHA W/O LATE NARAPPA REDDY MAJOR IN AGE 7(b) SRI.S.N.V.L. NARASIMHARAJU S/O NARASARAJU MAJOR IN AGE 7(c) SMT. TRIVENI D/O LATE NARASARAJU MAJOR IN AGE 7(d) SMT.S.SHAKUNTHALA D/O LATE NARASARAJU MAJOR IN AGE, ALL ARE R/A NO.40 30TH MAIN, 10TH CROSS IST PHASE, J P NAGARA BENGALURU-560078.
... RESPONDENTS (BY SRI CHANDRASHEKAR S, ADV. FOR M/S. HOLLA & HOLLA, CAVEATOR FOR R-7(a) TO (d) ) THIS MFA FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 27.06.2012 PASSED ON I.A.NO.2 IN O.S.NO.135/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, ANEKAL, DISMISSING I.A.NO.2 FILED U/O 39 RULE 1 & 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT This appeal is preferred by the appellant against the impugned order dated 27.06.2012 passed on I.A.No.2 filed under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC in O.S.No.135/2012 on the file of Senior Civil Judge, and JMFC, Anekal, seeking an order of injunction restraining the defendant No.7, his agents, servants and supporters from putting up any kind of construction in and over the suit schedule property.
2. The plaintiff has filed a suit against the defendants for specific performance of the contract basing on an unregistered agreement of sale dated 23.01.2009. Defendant Nos.1 to 3 are absolute owners in exclusive possession of the suit schedule property depicted therein through contract of sale agreeing to sell the suit schedule property for sale consideration in a sum of Rs.47,28,000/- and executed unregistered agreement of sale deed dated 23.01.2009 in favour of the plaintiff. As per the agreement entered into between the parties defendants 1 to 3 have received a sum of Rs.7,00,000/- as advance in the presence of the witnesses, who have subscribed their signature. The time stipulated between the parties was eleven months to execute a registered sale deed by receiving balance sale consideration of Rs.40,28,000/-. It is stated that defendants 1 to 3 again approached the plaintiff to pay further amount of Rs.6,00,000/-. In continuation of unregistered agreement of sale dated 23.01.2009, another sum of Rs.6,00,000/- was paid through another registered agreement of sale dated 05.12.2011. The plaintiff was ready and willing to perform his part of the contract as entered into between them, but the defendants went on postponing the matter on one pretext or the other. When the agreement of sale entered into between the plaintiff and defendants had not been performed, the plaintiff has filed the suit in O.S.No.135/2012 against the defendants in respect of the suit schedule property as depicted therein.
3. In that suit I.A.No.2 was filed by the plaintiff under Order XXXIX Rules 1 and 2 R/W Section 151 of CPC, seeking an order of injunction against the defendant No.7. Against the application filed by the plaintiff, the respondents/defendants have filed objection in detail. Subsequently the trial Court heard the arguments advanced by learned counsel for both the parties to see whether the plaintiff has established the case relating to the terms of the agreement entered into between them for seeking an ad interim injunction and also to establish whether the balance of convenience lies in favour of the plaintiff and if any, interim order as sought by the plaintiff in I.A.No.2/2012 is not granted, whether any hardship would be caused to the plaintiff. Learned Senior Civil Judge and JMFC, Anekal, on considering the application filed for seeking temporary injunction order and also contention as taken by the defendants/respondents by making objection in detail and so also ratio laid down in the decision in ILR 1992 KAR 3772 wherein it is held that under Order XXXIX Rules 1 and 2 of CPC prima facie case includes nature of suit and maintainability, no temporary injunction, if suit is not maintainable, this was also observed in the impugned order, which was made by the plaintiff apart from that reliance was also placed on the decision in ILR 1996 KAR 1905 wherein first of all it is argued that no suit is maintainable under Order II Rule 2 of CPC. On considering all these aspects, the learned Senior Civil Judge and JMFC, Anekal, had come to the conclusion that the plaintiff/applicant did not establish his case for seeking ad interim temporary injunction. Consequently the application came to be dismissed assigning the above reasons. Aggrieved by the impugned order the plaintiff is before this Court in this appeal.
4. Learned counsel for the appellant submits that the suit schedule property relates to Survey Number 20/1 to an extent of 1 acre 4 guntas. The suit is filed by the plaintiff against the defendants. Whereas the plaintiff and defendants entered into an unregistered agreement of sale. But the defendants have not performed their part of the duty. Therefore, the plaintiff has filed the suit against the defendants seeking the relief as sought for. Defendant Nos.1 to 6 depicted therein are the owners of the suit schedule properties, but they did not execute sale deed according to the agreement of sale entered into between the plaintiff and defendants. All these grounds are urged seeking intervention against the impugned order dated 27.06.2012 passed by Court below dismissing I.A.No.2 in O.S.No.135/2012. The learned counsel for the appellant has emphatically submitted pending disposal of O.S.No.135/2012 is seeking to allow the present appeal by setting aside the impugned order passed by the learned Senior Civil Judge and JMFC, Anekal, dismissing the application filed under Order XXXIX Rules 1 and 2 R/w Section 151 of CPC.
5. Counter to the arguments made by the learned counsel for the appellant, respondents’ counsel has taken me through the suit filed by the plaintiff in respect of the suit schedule property depicted therein. The dispute relates to only Sy.No.20/1 to an extent of 1 acre 4 guntas. The property includes other survey numbers also, but there is no dispute relating to the other suit schedule properties. It is further submitted that defendant Nos.1 to 6 have already sold the property to defendant No.7. Defendant No.7, who had purchased the property from them subsequently has put up construction relating to Medical College and Research Centre. In support of this contention learned counsel for the respondent/defendant No.7, has produced photographs. It is further contended by learned counsel for respondent No.7/defendant No.7 that defendant Nos.1 to 6 have sold the schedule properties depicted therein and other owners in all to an extent of 26 acres, said to be purchased by original defendant No.7, who has put up construction of Medical College and Research Centre. Therefore, learned counsel submits that at this stage, it does not warrant interference by this Court. Learned counsel for the respondents in this appeal further submits that the defendants have filed an application under Order VII Rule 11 of CPC for rejection of the plaint and that application is pending consideration in O.S.No.135/2012. On that ground learned counsel for the respondents seeks to dismiss the present appeal, as there is no substance in the contention raised by the plaintiff for intervention by this Court with regard to the dismissal of the application I.A.No.2 filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC.
6. As already stated above, the suit is by the plaintiff against the defendants for specific performance of the agreement in respect of Sy.No.20/1 to an extent of 1 acre 4 guntas, which is depicted in the suit schedule properties. Whereas the learned counsel for the appellant has stated that when the suit was filed before the Court below ex-parte temporary injunction was granted on 15.02.2012. Thereafter the suit has been transferred to the Court having jurisdiction to deal with the matter, thus it was transferred to the file of Senior Civil Judge and JMFC, Anekal. The plaintiff had filed I.A.No.2/2012 under Order XXXIX Rule 1 and 2 of CPC seeking an order of injunction. Written statement was filed by the defendants resisting the plaint averments. I.A.No.2/2012 is dismissed by the Court of Senior Civil Judge and JMFC, Anekal, wherein the defendants established the balance of convenience in respect of the suit schedule property. The same has been challenged in this appeal urging various grounds. However, the defendant Nos.1 to 6 have executed the sale deed and the same has been admitted in the appeal and also in the application filed under Order XXXIX Rules 1 and 2 R/w Section 151 of CPC for ad interim temporary injunction. But the learned counsel for the defendants/ respondents herein have taken me through the application I.A.No.2/2012 filed by the plaintiff/applicant under Order XXXIX Rule 1 and 2 of CPC. But the suit for specific performance is filed in the year 2012. Learned counsel for the appellant as well as the respondents submits that the dispute relates to suit schedule property with regard to Sy.No.20/1 to an extent of 1 acre 4 guntas of land. However, the defendant No.7, who purchased the suit schedule property has constructed the building and is running Medical College and Research Centre. Thus it is deemed proper to dispose of this appeal by granting certain period in respect of the suit schedule property for disposal of the case expeditiously within a period of six months.
7. Taking into consideration the submissions made by learned counsel for the appellant as well as respondents, it is hereby directed that the suit in O.S.No.135/2012 which is pending on the file of Senior Civil Judge and JMFC, Anekal, shall be disposed of within six months by giving an opportunity to both the sides to adduce evidence and for production of documents. The trial Court shall not be influenced by any of the observations made during the course of this order, for disposal of the suit.
Accordingly, the appeal is disposed of.
SD/- JUDGE NG* Ct.BMS