Partly allowed

Sri Sudarshan Karle v. Smt. T Philomena

Karnataka HC7 Jul 2022MFA/2665/2022

Case brief

AI extract

What is this about?

Appeals challenging interim status quo orders were disposed of. The High Court directed the trial Court to decide the pending application for temporary injunction within four weeks, noting the lower order did not restrict property use. Appeals are allowed with contentions left open.

What did the court decide?

Trial Court directed to decide pending application for temporary injunction within four weeks from the date of first hearing.

Sri Sudarshan Karle Vs Smt. T Philomena — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD

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MISCELLANEOUS FIRST APPEAL NO.2665/2022

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C/W

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MISCELLANEOUS FIRST APPEAL NO.2222/2022 (CPC)

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IN MFA NO. 2665/2022

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BETWEEN:

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SRI SUDARSHAN KARLE S/O LATE L T KARLE AGED ABOUT 66 YEARS R/A NO.101, 7^TH CROSS 2^ND MAIN, I BLOCK RMV II STAGE BANGALORE - 560 094.

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SRI MAHENDRA KARLE S/O LATE L T KARLE AGED ABOUT 64 YEARS R/A NO.21, ADITHI 1^ST MAIN RMV II STAGE BANGALORE - 560 094.

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... APPELLANTS

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(BY SRI. MANMOHAN P N, ADVOCATE)

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AND:

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SMT. T PHILOMENA D/O LATE SRI THOMASAPPA SINCE DEAD BY LRS,

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SRI G VINCENT THOMAS S/O LATE GABRIEL A ALIAS GABRIEL REDDY AGED ABOUT 54 YEARS R/A NO.91, M M REDDY ROAD MARIYANNAPALYA H A FARM POST BENGALURU - 560 024.

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SRI ROMARIO VINCENT THOMAS S/O SRI G VINCENT THOMAS AGED ABOUT 24 YEARS R/A NO.91, M M REDDY ROAD MARIYANNAPALYA H A FARM POST BENGALURU-560 024.

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... RESPONDENTS (BY SRI.RID'SA, ADVOCATE FOR R1 & R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 04.03.2020 PASSED ON I.A.NO.2/2020 IN OS.NO.1629/2020 ON THE FILE OF THE COURT OF XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ISSUING SUIT SUMMONS NOTICE ON I.A.NO.2 UNDER ORDER 39 RULE 3 OF CPC.

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IN MFA NO.2222/2022

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BETWEEN:

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SMT C JETHRUTHA W/O. LATE. SRI. T CHINNASWAMY REDDY, AGED ABOUT 67 YEARS R/AT NO. 42, CHURCH MAIN ROAD, ERANNA PALYA,

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ARABIC COLLEGE POST, BENGALURU - 560 045.

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SRI. C ALBERT DAVID S/O. LATE. SRI. T CHINNASWAMY REDDY, R/AT NO. 42, CHURCH MAIN ROAD, ERANNA PALYA, ARABIC COLLEGE POST, BENGALURU - 560 045.

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SRI. PRAKASH PAUL C S/O. LATE. SRI. T CHINNASWAMY REDDY, AGED ABOUT 49 YEARS R/AT NO. 42, CHURCH MAIN ROAD, ERANNA PALYA, ARABIC COLLEGE POST, BENGALURU 560 045.

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SMT. C SUNITHA D/O. LATE. SRI. T CHINNASWAMY REDDY, AGED ABOUT 49 YEARS R/AT NO. 42, CHURCH MAIN ROAD, ERANNA PALYA, ARABIC COLLEGE POST, BENGALURU 560045.

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SRI. T CHOWRI REDDY ALIAS CHOWREDDY S/O. LATE. SRI. THOMASAPPA, SINCE DEAD REP BY APPELLANT NO. 2 TO 4 VIDE REGISTERED WILL DATED 03.07.2020. ... APPELLANTS (BY SRI. MANMOHAN P N, ADVOCATE)

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AND:

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SMT T PHILOMENA D/O. LATE. SRI. THOMASAPPA,

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SINCE DEAD BY LRS,

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SRI. G VINCENT THOMAS S/O. LATE. GABRIEL A ALIAS, GABRIEL REDDY, AGED ABOUT 54 YEARS R/AT NO. 91, MM REDDY ROAD, MARIYANNAPALYA, HA FARM POST, BENGALURU 560 024.

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SRI. ROMARIO VINCENT THOMAS S/O. SRI. G VINCENT THOMAS, AGED ABOUT 24 YEARS R/AT NO. 91, MM REDDY ROAD, MARIYANNAPALYA, HA FARM POST, BENGALURU - 560 024.

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... RESPONDENTS (BY SRI.RID'SA, ADVOCATE FOR R1 & R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 04.03.2020 PASSED ON I.A. NO.2/2020 IN O.S.NO. 1629/2020 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ISSUING SUIT SUMMONS NOTICE OF I.A.2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are by different defendants in O.S.No.1629/2020 on the file of the XL Additional City Civil

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and Sessions Judge, Bengaluru (for short, ' the civil Court ') calling in question the civil Court’s ex-parte order directing the parties to the suit to maintain status quo regarding the schedule properties . If the appeal in M.F.A.No.2222/2022 is by the family members of the original plaintiff [some of the defendants], the other appeal in M.F.A.No.2665/2022 is by the purchaser of one of the Suit Schedule Properties.

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Mr. P. N. Manmohan, the learned counsel for

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the appellants, submits that the application for temporary injunction under Section XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (for short, 'the CPC' ) is yet to be decided by the civil Court but the appellants' appeals are well founded in law because the application, notwithstanding the pleadings being complete, is not

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decided within the timelines permitted by the provisions of Order XXXIX Rule 3 of CPC.

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On merits, Mr. P.N. Manmohan submits that the undisputed facts are that Mr. Thomasappa and Mrs. Theresamma, who have died on 26.09.1978 and 27.02.2019 respectively, had 5 sons and 2 daughters. The original plaintiff - Mrs. Philomena - is one of the daughters, and most of the defendants are the other children/their legal representatives and purchasers of certain properties. Mr. Thomasappa has executed unregistered Partition Deed dated 24.05.1972 partitioning the different properties and after this partition, some of the family members have entered into other transactions, including the Partition Deed dated 23.06.2000 by the family of one of the sons of Mr. Thomasappa. The original plaintiff, notwithstanding the lapse of time, has filed the suit for partition.

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- 7 -

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Mr. P.N. Manmohan argues that the civil Court, without assigning any reason, has granted ex-parte orders directing parties to maintain status quo . The civil Court has not clarified the nature of the status quo . Therefore, this Court must intervene on the ground of delay in deciding the application and because the impugned order is not backed by reasons and is uncertain. When queried, Sri. P.N. Manmohan submits that the appellants’ grievance is because the impugned order could be interpreted to mean that the parties cannot even undertake construction, and this would prejudice the concerned of the appellants [defendants] because in some of properties an educational institution is housed.

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Mr. R.I. D’sa, the learned counsel for the legal heirs of the original plaintiff, is categorical in his submission that the impugned order has not been construed by the original plaintiff or her legal heirs as constraining any of the defendants, including the

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appellants, from using the subject properties. Mr. R.I. D’sa also submits that the appeals could be disposed of calling upon the civil Court to decide the application on the merits within a certain time frame. In rejoinder, Mr. P.N. Manmohan is rather empathetic against the continuation of the interim order.

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With the application for temporary injunction still to be considered by the civil Court, this Court is of the opinion that the appeals must be disposed of taking on record Mr. R.I.D'sa's submission that the impugned order cannot be construed as restricting in any manner the use and enjoyment of the subject properties [ including the right to put up construction] and calling upon the civil Court to decide the pending application under Order XXXIX Rule 1 and 2 of CPC within a period of four [4] weeks from the date of first hearing after this order. It would be needless to observe that all contentions are left open to be decided and

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the parties shall co-operate with the civil Court in such expeditious disposal.

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The appeals stand disposed of accordingly.

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Sd/JUDGE

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Sri Sudarshan Karle v. Smt. T Philomena

Case brief

What is this about?

What did the court decide?

Sri Sudarshan Karle v. Smt. T Philomena

Case brief

What is this about?

What did the court decide?

What the court decided

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