Allowed

S Shilpa v. Sri S Muralikrishna

Karnataka HC16 Dec 2021MFA/4412/2021

Case brief

AI extract

What is this about?

The High Court set aside an order dismissing a temporary injunction application under O.39 R.1(a) CPC, holding that a defendant need not file a counter-claim. It directed maintenance of status-quo regarding alienation, transferred multiple related suits to one court, and mandated mediation.

What did the court decide?

Impugned order set aside; status-quo maintained regarding alienation; suits transferred and referred to mediation.

S Shilpa Vs Sri S Muralikrishna — Partition | Karnataka HC (2021)

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M.F.A.NO.4412/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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M.F.A. NO.4412/2021(CPC)

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BETWEEN:

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S SHILPA W/O SRI HARISH KUMAR D/O LATE R SHIVASHANKAR AGE ABOUT 35 YEARS RESIDING AT NO.403, 17^TH CROSS B.E.M.L. LAYOUT BASAVESHWARANAGAR BENGALURU-560 079

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… APPELLANT

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(BY SRI. D.L. JAGADEESH, SENIOR ADVOCATE FOR SRI. RAHAMATHULLA KOTHWAL, ADVOCATE)

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AND:

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1 . SRI S MURALIKRISHNA

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S/O LATE R SHIVASHNAKAR AGED ABOUT 36 YEARS RESIDING AT NO.403,17^TH CROSS B.E.M.L. LAYOUT, BASAVESHWARANAGAR BENGALURU-560 079

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2 . SMT LAKSHMI W/O LATE R SHIVASHANKAR AGE ABOUT 35 YEARS RESIDING AT B.E.M.L. LAYOUT BASAVESHWARANAGAR BENGALURU-560 079

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3 . SMT R MONICA

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D/O M P RAMESH AND LATE SMT NANDAKUMARI

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M.F.A.NO.4412/2021

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W/O M YESHWANTH AGE ABOUT 24 YEARS RESIDING AT NO.29 SREE ARCADE APARTMENTS 2^ND PHASE, 12^TH MAIN, RAJAJINAGAR BENGALURU-560 010

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… RESPONDENTS

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(BY SRI. Y.R. SADASIVA REDDY SENIOR, ADVOCATE FOR SRI. J.M. RAJANNA SETTY, ADVOCATE FOR C/R1, SRI. J.R. MOHAN, ADVOCATE FOR R2, SRI. K.VARAPRASAD, ADVOCATE FOR R3)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DT.05.08.2020 PASSED ON IA NO.16 IN O.S.NO.5335/2014 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-27), BENGALURU, DISMISSING IA NO.16 FILED U/O.39 RULES 1 AND 2 OF CPC.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by rejection of her application for grant of

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Temporary Injunction, Defendant No.2 in OS No.5335/2014 on the file of XII-Additional City Civil and Sessions Judge, Bengaluru (CCH-27), has preferred the above appeal.

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Respondent No.2 is the plaintiff, respondent

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No.1 is defendant No.1, appellant is defendant No.2, respondent No.3 is defendant No.3 in OS No.5335/2014, before the trial Court.

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M.F.A.NO.4412/2021

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Plaintiff is the 2^nd wife of R.Shivashankar.

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Defendant Nos.1 and 2 are the son and daughter of said Shivashankar through his first wife. Defendant No.3 is Ramaiah’s daughter's daughter. Shivashankar died on 14.01.2013. Plaintiff filed OS No.5335/2014 initially against the defendant Nos.1 and 2 for partition and separate possession of her share in the property of Shivashankar. Later defendant No.3 was impleaded in the said suit.

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Initially, only the 1st defendant appeared in the case and Defendant No.2 was placed ex-parte. Later she filed an application on 19.08.2019 to set-aside the exparte order passed against her. On 29.02.2020 that application came to be allowed. On 14.01.2015, defendant No.1 filed written statement. In the year 2017 he filed amendment application to amend the pleadings. Amendment application came to be allowed in 2020.

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The plaintiff filed IA No.5 before the trial Court

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seeking Temporary Injunction against the 1^st defendant

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M.F.A.NO.4412/2021

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from interfering with her joint possession and enjoyment of the suit schedule properties. That application came to be allowed on 16.03.2015.

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Pending the aforesaid proceedings, defendant No.2 filed OS No.5737/2019 before the XXXI Additional City Civil Court, Bengaluru (C.C.H-14) against the present plaintiff and defendant No.1 for partition and separate possession of her share in the suit schedule properties and to restrain them from alienating the suit schedule properties. In that suit, the Court had granted an ex-parte temporary injunction directing the parties to maintain Status-Quo. However that order was not extended later.

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Challenging the order of temporary injunction granted in O.S.No.5335/2014, defendant No.1 preferred MFA No.2313/2015 before this Court. This Court by order dated 04.11.2016 disposed of that appeal directing the trial Court to dispose of the suit within 12 months from the date of order and directing the parties to maintain statusquo.

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M.F.A.NO.4412/2021

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Such being the case, defendant No.2 filed IA No.16 in OS No.5335/2014 seeking temporary injunction to restrain the plaintiff and defendant No.1 from alienating the suit schedule properties. The plaintiff and defendant No.1 contested the said application.

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The trial Court on hearing the parties, by the impugned order rejected the application on the ground that Defendant No.2 has neither filed any Counter-claim nor paid court fee on the written statement, therefore, she cannot maintain such application. The other ground for rejection is that, since she has already filed OS No.5737/2019, she shall work-out her remedy for such injunction in the said suit.

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Pending O.S.No.5335/2014, some alienations were effected. Therefore, Defendant No.2 has filed OS Nos.4460/2020 and 4462/2020 against Defendant No.1 and the purchasers seeking declaration that the said sales are null and void and not binding on her. She has also filed OS No.26510/2019 against the tenants and the 1^st

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M.F.A.NO.4412/2021

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defendant regarding one of the present suit schedule properties for ejectment.

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Deceased Shivashankar's sisters have filed OS No.7256/2016 against Defendant Nos. 1 & 2 claiming that, the properties were the ancestral properties of Ramaiah, the father of Shivashakar, therefore on death of Ramaiah, they are also entitled for those properties. It is submitted that, now the said case is consolidated with OS No.5335/2014. Above facts show that though the relationship between the parties is admitted, they are fighting bitterly and entrapped in the web of multiple litigations.

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Learned counsel appearing for the parties on

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both side concede that all the above suits can be transferred to one Court and the matters can be referred to mediation, to make an attempt to resolve the disputes between the parties amicably.

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So far as the legality of the impugned order, it is a settled position of law that in the suit for

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M.F.A.NO.4412/2021

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partition all the parties are in the array of plaintiffs. The application was for injunction against alienation of the properties, which falls under Order 39 Rule 1(a) of CPC. The said provision provides for filing such application by either of the parties i.e., the plaintiff or defendant. Therefore, the reasoning of the trial Court that, Defendant No.2 is barred from filing such application without paying Court Fee on written statement or counter claim is wholly unsustainable.

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So far as the direction to work-out remedy of Defendant No.2 in OS No.5737/2019, O.S.No.5335/2014 was an earlier suit. By the time, IA No.16 came up for hearing, the injunction order granted in OS No.5737/2019 was not in operation. Therefore, there was no impediment for the trial Court to consider IA No.16, instead of driving Defendant No.2 to another suit. Therefore, the rejection of the application on that count is also unsustainable.

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Admittedly, this Court in MFA No.2313/2015 (CPC) as long back as on 04.11.2016, has passed an order directing the parties to maintain status-quo. It was

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M.F.A.NO.4412/2021

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contended, that order applies only with regard to interfering with the possession of the plaintiff and not with regard to alienation. The status-quo means, ' the condition as is - where is' . So, it cannot be said that it would apply only with regard to the possession of the properties. In the light of the said order, in the considered opinion of this Court, there was no need for Defendant No.2 to file another application.

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In view of the observations made above, this

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appeal is disposed of. The impugned order is set aside. Both the parties are directed to maintain status-quo even with regard to alienation of the suit schedule properties, till the disposal of the suit.

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O.S.No.5737/2019, O.S.No.4460/2020, O.S.No.4462/2020 and O.S.No.26510/2019 shall be transferred to the Court of XII Additional City Civil and Sessions Judge (CCH-27), Bengaluru, for disposal along with OS No.5335/2014 and OS No.7256/2016.

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On transfer of the cases, the matter shall be referred to Bengaluru Mediation Center for exploring

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M.F.A.NO.4412/2021

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the possibility of settlement. Twelve Months’ time granted by this Court in MFA No.2313/2015, for disposal of O.S.No.5335/2014 is already elapsed. Under such circumstances, this Court hopes that the matter will be settled amicably.

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If at all the medication fails, the trial Court shall dispose of the suits as expeditiously as possible, at any rate, within one year from the date of receipt of the mediation report.

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All the pending Interlocutory Applications stood disposed of.

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Sd/JUDGE

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KGR*

S Shilpa v. Sri S Muralikrishna

Case brief

What is this about?

What did the court decide?

S Shilpa v. Sri S Muralikrishna

Case brief

What is this about?

What did the court decide?

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