IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03rd DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.52009 of 2018 (GM-CPC) BETWEEN:
Smt. Sundari D/o late Shivappa Poojary, Aged about 61 years, R/o Thota House, Padnoor Village, Puttur Taluk, D.K. District – 574 201.
(By Sri. Hareesh Bhandary, Advocate for Sri. Vishwajith Shetty .S, Advocate) AND:
1. Sri. Chaitranarayana S.G. S/o S. Janardhana Bhat, Major, R/at Sediyapu, Padnoor Village, Puttur Taluk, D.K. District – 574 201.
2. Sri. S. Janardhana Bhat S/o Narayana Bhat, Major, R/at Sediyapu, Padnoor Village, Puttur Taluk, D.K. District – 574 201.
... Petitioner 3. Smt. Appi W/o Sanjeeva Salian, Major, R/o Kalayi in Machchina Village, Belthangady Tq, D.K – 574 201.
… Respondents This writ petition is filed under Article 227 of the Constitution of India praying to quash the order vide Annexure- A dated 13.03.2015 made on I.A .No.XII in O.S. No.111/2010 by the Court of Principal Civil Judge and JMFC, Puttur and the order Annexure-B dated 09.10.2018 made in M.A. No.11/2015 by Court of Principal Senior Civil Judge and A.C.J.M. at Puttur, D.K.
This writ petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The unsuccessful plaintiff filed the present writ petition against the order dated 09.10.2018 made in M.A. No.11/2015 on the file of Principal Senior Civil Judge and A.C.J.M. at Puttur, Dakshina Kannada dismissing the appeal filed by the plaintiff confirming the order passed by the trial Court dated 13.03.2015 on I.A. No.XII made in O.S. No.111/2010 on the file of Principal Civil Judge and JMFC, Puttur rejecting the application/I.A. No.XII filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
2. The plaintiff filed the suit for specific performance based on the agreement dated 10.12.2009. During the pendency of the suit, plaintiff has reliably learnt that defendant No.2 is proposing to borrow loan from Syndicate Bank or Corporation Bank, Puttur with a view to defeat the claim of the plaintiff, etc., Therefore, plaintiff filed I.A. No.XII under Order 39 Rules 1 and 2 of the Code of Civil Procedure restraining defendant No.2 from alienating, encumbering, creating charge over the suit property till the disposal of the suit. Resisting the averments made in the application, defendant No.2/respondent filed counter to the said I.A. and categorically contended that defendant No.2 neither approached Syndicate Bank or Corporation Bank nor any other bank for the purpose of availing loan. In order to carry out effective agricultural improvements, he has already availed agricultural loans from Bannur Raithara Seva Sahakari Bank, Bolwar, Puttur and he has no intention to avail any loans from any other banks and he has no intention to alienate the suit properties as well and sought for dismissal of the application. The trial Court after considering application and objection, by order dated 13.03.2015 rejected I.A. No.XII filed by the plaintiff for temporary injunction. On appeal filed by the plaintiff in M.A. No.11/2015 the lower appellate Court by impugned order dated 09.10.2018 dismissed the appeal confirming the order passed by the trial Court. Hence, the present writ petition is filed.
3. I have heard learned counsel appearing for the petitioner.
4. Sri. Hareesh Bhandary, learned counsel appearing on behalf of Sri. Vishwajith Shetty .S for the petitioner contended that the petitioner is an agreement holder and suit is filed for the relief of specific performance based on the sale agreement. If any alienation or encumbrance is made for the purpose of availing loan, the trial Court ought to have directed the parties to maintain status-quo till the disposal of the suit. He further contended that the lower Appellate Court at the first instance has granted interim order and subsequently dismissed the appeal without appreciating the order of status-quo granted earlier in respect of property in question. Therefore, he sought to allow the writ petition.
5. Having heard the learned counsel appearing for the petitioner, it is undisputed fact that the present petitioner has filed suit for enforcement of sale agreement dated 10.12.2009 and also filed application for temporary injunction restraining defendant No.2 from alienating encumbering creating charge over the suit property till the disposal of the suit. Defendant No.2 filed objections and in a categorical terms stated that plaintiff approached Syndicate Bank or Corporation Bank or any other bank for availing the loan and he already availed the loan from Bannur Raithara Seva Sahakari Bank, Bolwar and he has neither intention to avail any loans from any other banks nor he has any intention to alienate the suit properties. Based on the categorical statement, the trial Court rejected the application on the ground that the apprehension of alienation of the suit property except plaintiff stating generally in the I.A. and the affidavit, no specific apprehension is made out. As such, the balance of convenience lies in favour of defendant No.2. Accordingly, the application came to be rejected.
6. On re-appreciation of the entire material on record, the lower Appellate Court has held that admittedly the order passed by the trial Court in I.A. Nos.2 and 7 has reached finality. The trial Court has exercised discretion and rejected I.A. No.XII filed by the appellant and the order of the trial Court that if the respondent is restrained from availing loan for the purpose of agricultural improvement, then the respondent will be put to greater hardship than the appellant. As rightly observed by the trial Court, there is no specific apprehension of alienation of the suit property as contended by the appellant. Therefore, the appeal also came to be dismissed.
7. The petitioner has not made out any prima-facie case to interfere with the concurrent findings of fact recorded by the Courts below. Accordingly, the writ petition is dismissed.
8. However, it is needless to observe that, if any alienation or encumbrance is made during the pendency of the suit, it is always hit by the provisions of Section 52 of the Transfer of Property Act.
Sd/- JUDGE MBM