IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.6204 OF 2014 (CPC) BETWEEN:
SRI RAMAKRISHNA, S/O LATE H.VENKATARAMANAPPA, AGED ABOUT 65 YEARS, RESIDING AT NO.62, 1ST MAIN ROAD, DODDAKALLASANDRA, KANAKAPURA ROAD, BENGALURU – 560062. …APPELLANT (BY SRI.R.B.SADASHIVAPPA, ADVOCATE) AND:
1. THE BANK OFFICERS’ AND OFFICIALS HOUSE BUILDING CO-OP. SOCIETY LTD., 2ND FLOOR, RADHA BHAVAN, 1ST MAIN ROAD, SESHADRI PURAM, BENGALURU – 560020, REPRESENTED BY ITS SECRETARY.
2. THE BANK OFFICERS’ AND OFFICIALS HOUSE BUILDING, CO-OP. SOCIETY LTD., SURVEY NO.61, OPP.KEB STATION, VAJAMAGANAHALLI VILLAGE AND POST, VARUNA HOBLI, BANNUR ROAD, MYSURU – 570028.
3. SMT.POORNIMA N SWAMY W/O K.V.NARAYANASWAMY, AGED ABOUT 59 YEARS, RESIDING AT NO.272, 17TH CROSS, SADASHIVANAGAR, BENGALURU – 560080. ...RESPONDENTS (BY SRI.K.R.KRISHNA MURTHY, ADV., FOR M/S LAWYERS INC. FOR R3, SRI PRASHANTH G AND MOHAN M.K, ADV., FOR R1, R2 SERVED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED: 20.08.2014 PASSED ON I.A.NO.1 IN O.S.NO.6278/2013 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed for setting aside the order rejecting the application I.A.1 for temporary injunction dated 20.08.2014 passed in O.S. No.6278/2013 on the file of VIII Additional City Civil Judge (CCH 15), Bengaluru.
2. The facts leading to this appeal are that the plaintiff had filed original suit for mandatory injunction directing the defendants No.1 and 2 to execute a registered conveyance deed in favour of the plaintiff and family members of Venkataramanappa in respect of the plaint schedule property at their cost and for permanent injunction against the third defendant restraining the defendant No.3 or her agents or any other person claiming under her from alienating or transferring the properties by way of sale, mortgage or creating any encumbrance over the schedule property.
3. The plaintiff appellant had filed IA 1 under Order XXXIX Rule 1 and 2 of CPC seeking interim orders to restrain the defendant No.3 or anybody claiming under her from alienating or transferring or in any way encumbering the schedule property shown in the IA. Initially there was an ex parte temporary injunction in favour of the plaintiff. On hearing both the parties the said IA 1 came to be rejected as per the order dated 20.08.2014. Being aggrieved by the said order, the plaintiff has preferred the present appeal.
4. Learned counsel for the appellant submitted that the present suit was for enforcement of the joint memo filed in W.A.No.2188/1997, but no re-conveyance has been done in pursuance of the said joint memo until this date. Though it is an admitted fact that the plaintiff had sold the property to an extent of 20 guntas in favour of defendant No.3 as a GPA holder of his father Venkataramanappa no title was held by him as there was no re-conveyance. The learned trial Court has not considered the pleadings and the submission made which has resulted in miscarriage of justice.
5. Per contra, the learned counsel for the respondent No.3 strenuously contended that the plaintiff himself had sold the property through registered sale deed as a GPA holder of his father Venkataramanappa. In addition to that the original owner Venkataramanappa himself had executed an agreement of sale in favour of defendant No.3. Under these circumstances, the plaintiff was estopped from challenging the alienation made in favour of respondent-defendant No.3. The plaintiff being in lawful possession of the suit schedule property shown in IA is entitled for enjoyment of the same. There are no valid grounds to interfere with the order passed by the trial Court. Thus, the appeal deserves to be rejected. n 6. In view of the rival contentions the only point that arises for consideration is, whether there are valid grounds to interfere with the impugned order passed on IA No.1.
7. It is pertinent to note that both the parties are admitted that as on the date of sale there was no re- conveyance of the schedule property as per the joint memo filed in the writ appeal. Thus, it is evident that the plaintiff or his father had no title to the property, but the learned counsel for the respondent submitted that since the plaintiff’s father was the original land holder of the property and in view of the cancellation of the notification regarding acquisition of the property by the society the right title and interest vested in the plaintiff’s father. Thereafter there was division of properties among the family members of Venkataramanapa. The defendant No.3 has not made any attempt either to alienate the property or to create any encumbrance of the property in favour of third parties.
8. As could be seen from the records it is an admitted fact that there was a temporary injunction in favour of the plaintiff. Thereafter the order was passed on IA 1 on 20.08.2014. Even though the MFA was preferred before the Hon’ble Court there was no interim order. Both the counsels have submitted that the case before the trial Court is at the stage of defendants’ evidence and the matter is likely to be disposed of within a short period. Under these circumstances, the Court is of the opinion that instead of giving finding on the merits of the case the matter may be remanded back to the trial Court for expeditious disposal in order to avoid the multiplicity of proceedings and to enable the parties to seek the reliefs at an earlier date. The Court is of the opinion that the entire dispute can be settled on the basis of the own and documentary evidence to be placed before the trial Court.
9. For the aforesaid reasons, this appeal is disposed of with a direction to the parties to appear before the trial Court on 21.02.2019 and to cooperate for expeditious disposal of the case. Any observation in the impugned order on the IA shall not come in the way of deciding the case on merits.
Sd/- JUDGE ykl