IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.934/2016 BETWEEN:
VIDYA MANJUNATH W/O V.R.MANJUNATH AGED ABOUT 52 YEARS R/AT NO.545/85, 42ND CROSS 1ST MAIN ROAD, JAYANAGAR 8TH BLOCK, BANGALORE … APPELLANT (BY SRI R.RAVI, ADVOCATE) AND:
1. SMT.MANJULA DEVI W/O LATE K.G.HARISH AGED ABOUT 56 YEARS 2. SRI H.BHARATH KUMAR S/O LATE K.G.HARISH AGED ABOUT 28 YEARS 3. SRI DARSHAN KUMAR S/O LATE K.G.HARISH AGED ABOUT 24 YEARS R1 TO R3 ARE R/AT NO.128 (OUT HOUSE), IV CROSS 19TH MAIN, I N BLOCK RAJAJINAGAR, BANGALORE – 560 010 4. K.R.GOVINDARAJULU S/O LATE K.S.RANGAIAH SETTY AGED ABOUT 92 YEARS R/AT NO.7 AND 7/1, I FLOOR II CROSS, SIDDAPURA LALBAGH WEST GATE JAYANAGAR, BANGALORE – 560 011 5. SMT.YASHODAMMA W/O LATE K.G.GNANA PRAKASH AGED ABOUT 65 YEARS R/AT NO.128, 4TH CROSS 19TH MAIN, I N BLOCK RAJAJINAGAR, BANGALORE – 560 010 6. SMT.LEENA D/O LATE K.G.GNANA PRAKASH AGED ABOUT 41 YEARS R/AT PADMAVATHI NILAYA NO.80/1, 18TH MAIN, II BLOCK BSK I STAGE, BANGALORE – 560 050 7. SMT.SUSHMA D/O LATE K.G.GNANA PRAKASH AGED ABOUT 38 YEARS R/AT NO.128, 4TH CROSS 19TH MAIN, I N BLOCK RAJAJINAGAR, BANGALORE – 560 010 8. SMT.SWETHA D/O LATE K.G.GNANA PRAKASH AGED ABOUT 35 YEARS R/AT NO.128, 4TH CROSS 29TH MAIN, I N BLOCK RAJAJINAGAR, BANGALORE – 560 010 9. SRI K.G.SUBASH CHANDRA SINCE DECEASED REP. BY HIS LRS.
a) SMT.GEETHA W/O LATE SUBASH CHANDRA AGED ABOUT 61 YEARS b) KUMARI BHAVYA D/O LATE SUBASH CHANDRA AGED ABOUT 34 YEARS c) KUMARI RESHAMA D/O LATE SUBASH CHANDRA AGED ABOUT 32 YEARS d) SRI BALAJI S/O LATE SUBASH CHANDRA AGED ABOUT 28 YEARS R9(a) TO R9(d) ARE R/AT NO.7 AND 7/1, I FLOOR II CROSS, SIDDAPURA LALBAGH WEST GATE JAYANAGAR, BANGALORE – 560 011 10. SMT.LEELAVATHI W/O LATE K.G.VENKATESH AGED ABOUT 61 YEARS R/AT NO.7 AND 7/1, I FLOOR II CROSS, SIDDAPURA LALBAGH WEST GATE JAYANAGAR, BANGALORE – 560 011 11. SMT.SHREYA D/O LATE K.G.VENKATESH AGED ABOUT 36 YEARS R/AT NO.192, 7TH CROSS OMKAR NAGAR, AREKERE BANNERGHATTA ROAD BANGALORE – 560 076 12. SRI VINAY S/O LATE K.G.VENKATESH AGED ABOUT 34 YEARS R/AT NO.192, 7TH CROSS OMKAR NAGAR, AREKERE BANNERGHATTA ROAD BANGALORE – 560 076 13. SRI K.G.BADRINATH S/O K.R.GOVINDARAJALU AGED ABOUT 60 YEARS R/AT NO.145, SRI RAGAVENDRA NILAYA SRI RAMA ROAD, THYAGARAJA NAGAR BANGALORE – 560 028 … RESPONDENTS (BY SRI V.VISWANATH SHETTY, ADVOCATE FOR R13; R4, R9(a) TO R9(d), R10 ARE SERVED;
R1-R3, R5-R8, R11 AND R12 ARE HELD SUFFICIENT) THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 02.01.2016 PASSED BY THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE ON IA.NO.18 IN O.S.NO.5037/2009.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether the impugned order of the trial Court where under the application of the appellant for injunction was rejected suffers arbitrariness and perversity?” is the question involved in this case.
2. Appellant was defendant No.11. Respondent Nos.1 to 3 were the plaintiffs and other respondents were defendants in O.S.No.5037/2009 on the file of XLIII Additional City Civil & Sessions Judge, Bengaluru (CCH-44).
3. Plaintiff No.1 is the wife and plaintiff Nos.2 and 3 are the children of late K.G.Harish. Defendant No.1 K.R.Govindarajulu is the father of K.G.Harish. The appellant is the sister of K.G.Harish. K.G.Harish died on 01.11.2008.
4. Plaintiffs filed O.S.No.5037/2009 claiming that the plaintiffs and the defendants constituted Joint Hindu Family and the suit schedule properties were the joint family properties. They further contended that after the death of K.G.Harish, the defendants were acting detrimental to the interest of the plaintiffs in the joint family properties and were trying to deprive them of their shares. Thus sought for decree of partition and separate possession of 1/7th share in the suit schedule properties and other ancillary reliefs regarding alienation made in respect of the suit schedule properties etc.
5. Appellant-defendant No.11 claimed that the suit schedule properties were the self acquired properties of defendant No.1 and he has gifted her plaint Schedule ‘A’ properties under the registered gift deed dated 19.02.2007. She filed I.A.No.18 under Order XXXIX Rules 1 and 2 of CPC seeking injunction against the plaintiffs restraining them from interfering with her peaceful possession and enjoyment of the plaint ‘A’ Schedule properties.
6. The trial Court after hearing the parties, by the impugned order rejected the said application on the ground that except for the disputed gift deed the appellant has failed to produce any material to show prima facie her actual possession of the said property. The trial Court further observed that the suit summons in this case was served on the appellant at different address namely her matrimonial home at Jayanagar.
7. The order rejecting the injunction is being discretionary relief, this Court in exercise of its appellate jurisdiction can substitute its own opinion to that of the trial Court, only if it is shown that the impugned order suffers arbitrariness or perversity.
8. Basically maintainability of the application itself is in question, though it was not considered by the trial Court. Order XXXIX Rule 1 of the CPC reads as follows:
“1. Cases in which temporary injunction may be granted.—Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Courts thinks fit, until the disposal of the suit or until further orders.”
9. Reading of Clause (a) to (c) of Order XXXIX Rule 1 of CPC makes it clear that Order XXXIX Rule 1(a) provides for either parties namely plaintiff or defendant to seek injunction where such party alleges that the disputed property is in danger of being wasted, damaged or alienated by any party to the suit. Whereas Clauses (b) & (c) provides only for plaintiff seeking injunction where the defendant threatens or intends to remove or dispose of the property or threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to property in dispute in the suit.
10. Appellant-defendant No.11 sought injunction claiming that the plaintiffs are interfering with her peaceful possession. Therefore, the said allegations do not fall under Clause (a) of Order XXXIX Rule 1 of CPC.
11. Learned Counsel for the appellant strenuously contended that dispossessing the appellant from property or obstructing her to enjoy the property fall under the term “Damage” found in Order XXXIX Rule 1(a) of CPC.
12. By no stretch of imagination, the said contention is acceptable. The larger Bench of this Court in Smt.Shakunthalamma & Ors., vs. Smt.Kanthamma & Ors.1 on reference of the question whether the 1 ILR 2014 KAR 6025 defendant in a suit for declaration and injunction can maintain an application for injunction under Order XXXIX Rule 1(c) of the Code of Civil Procedure, 1908 held as follows:
“33. ………………………………………………………….
(ii) Insofar as relief under Order XXXIX Rule 1(b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit.
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(Emphasis supplied) 13. Apart from that except for the gift deed relied upon by the learned Counsel for the appellant, the appellant did not produce any authentic records like her voters list, aadahar card, ration card to show that she was residing in plaint ‘A’ schedule property. The trial Court also observed that suit summons was duly served on the appellant at her matrimonial home at Jayanagar.
14. In the light of the aforesaid discussions, this Court does not find any arbitrariness or perversity in the impugned order of the trial Court. Therefore, the appeal is dismissed.
Sd/- JUDGE KSR