IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.3622 OF 2019 (CPC) BETWEEN Subash Jinagouda, S/o. Late Parshwanath Jinagouda, Aged about 66 years, R/at “Ashirwad Building”, No.73, 2nd Stage, Ashtagrama Layout, Magadi Main Road, Bengaluru-560079.
(By Sri. Freud Richardson, Advocate) AND 1. Sri. Siddharth S/o. Subhash Jinagouda, Aged about 36 years, 2. Sri. Sumanth, S/o. Subhash Jinagouda, Aged about 30 years, Both residing at No.1313, MRHB Colony, Magadi Road, Bengaluru-560079.
3. Smt. Chandrika, D/o. Sir. V.C.Brahamarayappa, Aged about 55 years, R/at “Ashirwad Building”, …Appellant 2nd Stage, Ashtagrama Layout, Magadi Main Road, Bengaluru-560079.
4. Smt. Jyothi, W/o. M.Prakash, Aged about 47 years, R/at 382, 3rd Main, 10th Cross, RHCS Layout, Annapurneshwarinagar, Bengaluru-560091.
5. Sri. G.Rupesh Kumar, S/o. Sri. G.Raghuram Naidu, Aged about 37 years, 6. Smt. J Divya, W/o. Sri. G.Rupesh Kumar, Aged about 31 years, Both Residing at No.475, 9th Cross, BSK, 3rd Stage, Bengaluru-560085.
…Respondents This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 02.04.2019 passed on I.A.No.6 in O.S.No.25900/2017, on the file of the Prl. City Civil and Sessions Judge, Bengaluru, disposing the I.A.No.VI filed under Order 39 Rule 4 of CPC This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT Heard the appellant’s counsel.
2. The appellant is defendant no.1 in the suit O.S.25900/2017 on the file of Addl. City Civil and Sessions Judge, Bengaluru. The respondents 1 and 2 are the plaintiffs in the said suit for partition. The plaintiffs made an application under Order 39 Rules 1 and 2 CPC for granting an order of temporary injunction to restrain the defendants 1 and 2 from alienating or encumbering the plaint schedule ‘A’ and ‘B’ properties. In the first instance an exparte order of temporary injunction had been granted. The 1st defendant, after appearing before the court, made an application, I.A.2 under Order 39 Rule 4 CPC for vacating the exparte order. The trial court after hearing both sides passed an order restraining the 1st defendant from alienating or creating any charge over Items 1 to 5 of plaint ‘A’ schedule properties and plaint ‘B’ schedule properties. By the same order the trial court vacated the exparte order of temporary injunction in respect of items 6 to 8 of plaint ‘A’ schedule properties.
3. The only grievance of the appellant/defendant no.1 is that in the trial court he has filed another application under Section 52 of Transfer of Property Act seeking permission to continue the developmental work undertaken by him in item 1 and 2 of ‘A’ schedule properties. Because of the impugned order the trial court did not consider his application and therefore the trial court be directed to consider the application filed under Section 52 of the Transfer of Property Act.
4. In this regard, it is to be made clear that Order 39 Rule 4 of CPC provides for modification of the interim order granted after hearing both sides. If such modification or variation is necessitated by the circumstances. In this view there is no impediment for the trial court to consider the application filed under Section 52 of the Transfer of Property Act. The trial court can decide that application based on its merits. With these observations this appeal is disposed of.
Sd/- JUDGE sd