IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA WRIT PETITION NO.226 OF 2017 (GM-CPC) BETWEEN:
SRI SHIVANANJEGOWDA S/O. LATE BOREGOWDA AGED ABOUT 60 YEARS OCC: BUSINESS NO.17, 19TH CROSS CUBBONPET BENGALURU-560 002.
(BY SRI DESHRAJ, ADV.) ... PETITIONER AND:
R. MURALIDHAR S/O. LATE C. K. RANGASWAMY AGED ABOUT 51 YEARS NO.1061, MUDDANANJAPPA COMPOUND NEAR RAILWAY STATION DODDABALLAPURA-561 203.
(BY SRI MANJUNATH G. KANDEKAR, ADV.) * * * ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, IN R.A. NO.10035 OF 2015 ON IA NO.2 AND ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is listed for consideration of interim prayer, but with the consent of the learned counsel for both sides, it is heard finally.
2. Petitioner was the plaintiff in O.S. No.245 of 2006 which was disposed of by partly decreeing the suit, by not being granted the relief of specific performance of the agreement to sell, and being directed to repay the advance sale consideration. The plaintiff has preferred R.A. No.10035 of 2015 before the First Appellate Court.
The petitioner herein filed two applications before the First Appellate Court: one, for seeking permission to deposit the balance consideration amount of Rs.7,25,000/- and second, for seeking an order restraining the respondent herein from alienating the suit schedule property. Both these applications have been dismissed by the impugned order dated 6-12-2016 (Annexure-N). Being aggrieved, this writ petition has been preferred.
3. I have heard learned counsel for the petitioner and the learned counsel for respondent, and perused the material on record.
4. It is submitted at the Bar that the petitioner herein has preferred M.F.A. No.8677 of 2016 before this Court, wherein there is an interim order of status-quo to be maintained by both the parties and therefore the respondent herein cannot alienate the suit schedule property during the pendency of that appeal. As far as permission to deposit balance sale consideration is concerned, learned counsel for the respondent submits that any deposit made would prejudice the contentions of the respondent in the appeal in as much as the trial Court has declined to grant the relief of specific performance of the agreement to sell on the premise that the plaintiff had failed to prove readiness and willingness to perform his part of the contract. Therefore, he submits that the Appellate Court was justified in dismissing the said application.
5. Having heard the learned counsel for both the parties and perusing the material on record, it is noted that, as far as order of temporary injunction is concerned, as the petitioner herein is already protected by interim order in M.F.A. No.8677 of 2016, it is not necessary to go into that aspect of the matter. In this writ petition, as far as permission to deposit the balance sale consideration of Rs.7,25,000/- is concerned, I find that such a permission could be granted to the petitioner herein, if the deposit is made. The same would not in any way prejudice the rights and contentions of the respondent in the appeal. It is clarified that despite the said deposit being made before the First Appellate Court, the petitioner herein would have to still convince the said Court with regard to seeking the relief of specific performance of the agreement to sell.
Therefore, permission being granted is subject to the aforesaid observation.
6. Writ Petition is disposed of in the aforesaid terms.
At this stage, learned counsel for the respondent submits that the First Appellate Court may be directed to dispose of the matter expeditiously. I find that it is not necessary to give such a direction as both the parties shall co-operate with the Appellate Court and the Appellate Court in its endeavor shall dispose of the appeal in an expeditious manner as this Court is informed that the appeal is at the stage of final arguments.
Sd/- JUDGE kvk