Allowed

Mrs. L Santhoshi v. Smt. Saramma

Karnataka HC9 Dec 2021MFA/6167/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the trial court's order vacating an interim injunction that had been in force for nearly two and a half years. The bench held that no adequate reason was assigned for vacating the injunction other than the plaintiff's absence, thereby rendering the order liable to be quashed.

What did the court decide?

The impugned order dating 22.10.2021 is set aside. The matter is remitted to the trial court to pass appropriate orders on I.A. Nos. 4 and 1. Status quo of the property is maintained pending the prono

Mrs. L Santhoshi Vs Smt. Saramma — Property and Title | Karnataka HC (2021)

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M.F.A.NO.6167/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^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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MISCELLANEOUS FIRST APPEAL NO.6167/2021(CPC)

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BETWEEN:

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MRS.L.SANTHOSHI W/O BALRAJ AGED 46 YEARS R/AT NO.26, 2^ND FLOOR, 1^ST CROSS CRISTIAN COLONY, SRIRAMPURAM BENGALURU – 560 021 … APPELLANT

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(BY SRI SANTOSH RAJ URS, ADVOCATE)

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AND:

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SMT.SARAMMA W/O SHANKARAYYA AGED 50 YEARS R/AT NO.26, GROUND FLOOR BABU BHASKAR HOUSE, 1^ST CROSS CRISTIAN COLONY, SRIRAMPURAM BENGALURU – 560 021 … RESPONDENT

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(BY SMT.SUMATHI S, ADVOCATE FOR C/R)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 22.10.2021 PASSED ON I.A.NO.4 IN O.S.NO.4427/2018 ON THE FILE OF THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE I.A.NO.4 FILED UNDER ORDER 39 RULE 4 OF CPC.

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

M.F.A.NO.6167/2021

J U D G M E N T

With the consent of both side, the matter is taken up for final disposal.

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The appellant filed O.S.No.4427/2018 before the LXVIII Addl. City Civil and Sessions Judge, Bengaluru seeking decree of permanent injunction against the respondent from alienating the suit schedule property and creating any third party interest by sale, mortgage, gift etc.

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The subject matter of the suit is the property bearing No.16/1 measuring 19ft X 10ft situated at Christian Colony, Srirampura, Bengaluru. The appellant and respondent are full sisters. Admittedly, the suit property belonged to their maternal uncle J.Samson. He died on 09.07.1991 leaving behind him his wife Jeevamma as the only surviving heir. She also died on 06.03.2013.

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The appellant claims that Jeevamma executed WILL dated 24.03.2011 bequeathing the suit Schedule Property in her favour. The respondent

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M.F.A.NO.6167/2021

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claims that Jeevamma has gifted the property to her by executing a document dated 31.08.2009.

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The appellant filed O.S.No.4427/2018 against the respondent for permanent injunction claiming that by virtue of the WILL she is in possession of the property. She further claims that the respondent on the basis of some forged documents is attempting to alienate the suit property. Along with the plaint, she filed IA No.1 seeking temporary injunction restraining the respondent from putting up construction on the suit schedule property.

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The trial Court on 25.06.2018 granted exparte temporary injunction restraining the respondent from putting up construction on the suit schedule property till the next hearing date. The said injunction was being extended from time to time.

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The respondent appeared and filed her written statement and objections to IA No.1. The trial Court framed the issues and posted the matter for the evidence of the plaintiff. On 24.02.2021 when the

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M.F.A.NO.6167/2021

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matter was listed for evidence of PW.1, respondent filed IA No.4 under Order 39 Rules 4 CPC for vacating the exparte interim injunction. Thereafter plaintiff and her counsel failed to appear before the trial Court for some hearing dates.

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Ultimately on 22.10.2021 again plaintiff and her counsel did not appear. The trial Court heard the respondent’s counsel and by the impugned order vacated the interim injunction granted. The aforesaid impugned order reads as follows:

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“Plaintiff absent.

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No representation by the plaintiff side. Counsel for Defendant present. Heard arguments of Defendant side on IA No.4. Plaintiff has not filed objections to IA.No.4 (U/o 39 Rule 4 of CPC). Hence, injunction granted by this court in favour of the plaintiff is hereby vacated. Accordingly, IA No.4 is allowed.

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For cross examination of PW1 by 03.12.2021.”

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The above said order shows that it was

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passed pending IA No.1. No orders were passed on IA No.1. The interim injunction order operated for about more than 2½ years. Except the failure of the appellant

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M.F.A.NO.6167/2021

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no other reason was assigned to vacate the interim order which was in operation for 2 ½ years. On that count itself, the order is liable to be set aside.

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The appeal is allowed.

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The impugned order dated 22.10.2021 passed by

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the trial Court is hereby set aside. The matter is remitted back to the trial Court. The parties shall appear before the trial Court on 15.12.2021 and get the matter pre-poned.

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The trial Court shall give opportunity of hearing to both side and pass orders on IA Nos.1 and 4 in accordance with law within 30 days from the date of receipt of copy of the order.

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Till then, the respondent shall maintain status quo of the property.

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Registry shall communicate the operative portion of the order to the trial Court.

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Sd/JUDGE

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akc

Mrs. L Santhoshi v. Smt. Saramma

Case brief

What is this about?

What did the court decide?

Mrs. L Santhoshi v. Smt. Saramma

Case brief

What is this about?

What did the court decide?

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