Partly allowed

Muralidhar v. Vs Smt.Maya H

Karnataka HC11 Jul 2022MFA/3998/2022

Case brief

AI extract

What is this about?

The High Court allowed miscellaneous first appeals filed by defendants in two suits for permanent injunction. The court set aside impugned orders granting temporary injunctions and restored the applications for reconsideration, directing parties to maintain the status of properties until a final decision after due hearing.

What did the court decide?

Impugned orders dated 21.03.2022 and 22.04.2022 set aside; applications restored for reconsideration with due opportunity; status quo maintained.

Muralidhar v Vs Smt.Maya H — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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.3998/2022

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C/W.

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MISCELLANEOUS FIRST APPEAL NOS.4448/2022, 4457/2022,

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4458/2022, 4460/2022 (CPC)

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IN MFA NO. 3998/2022

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BETWEEN:

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MURALIDHAR V

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S/O SRI VENKATARAJU SRINIVASALU AGED ABOUT 51 YEARS MEMBER NTI HOUSING CO OPERATIVE SOCIETY LTD R/A NO.15, MEENAKSHI KOIL STREET SHIVAJI NAGAR BENGALURU-560 051.

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... APPELLANT

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(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI. NARASIMHARAJU, ADVOCATE)

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AND:

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SMT.MAYA H W/O HARICHAND B AGED ABOUT 74 YEARS R/A NO.4, WEST PARK ROAD KUMARA PARK EAST EXTENSION BENGALURU-560 001.

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SRI PRATHAP CHAND P RATHOD AGED ABOUT 52 YEARS SECRETARY NTI HOUSING CO OPERATIVE SOCIETY LTD NO.84, 1^ST FLOOR, 8^TH CROSS 'SUNSMILE', SERPENTINE ROAD BENGALURU - 560 020. 3. SRI N MANJUNATH AGED ABOUT 62 YEARS PRESIDENT NTI HOUSING CO OPERATIVE SOCIETY LTD NO.84, 1^ST FLOOR 8^TH CROSS, 'SUNSMILE', SERPENTINE ROAD BENGALURU - 560 020. 4. SRI RAMAKRISHNA REDDY AGED ABOUT 59 YEARS VICE PRESIDENT NTI HOUSING CO OPERATIVE SOCIETY LTD NO.84, 1^ST FLOOR 8^TH CROSS, SUNSMILE, SERPENTINE ROAD BENGALURU - 560 020. 5. NTI HOUSING CO OPERATIVE SOCIETY LTD NO.84, 1^ST FLOOR 8^TH CROSS, SUNSMILE, SERPENTINE ROAD BENGALURU - 560 020 REPRESENTED BY ITS SECRETARY. ... RESPONDENTS (BY SMT.B.V. VIDYULATHA, ADVOCATE FOR R1; NOTICE TO R2 TO R5 ARE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER 43 RULE 1(A) OF CPC, AGAINST THE ORDER DATED 22.04.2022 PASSED ON IA NO.6 AND 8 IN O.S.NO.1297/2022 ON THE FILE OF THE XI ADDITIONAL

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CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-8), ALLOWING IA NO.6 AND IA NO.8 FILED U/O.39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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IN MFA NO. 4448/2022

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BETWEEN:

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PRATAPCHAND P RATHOD S/O LATE PEERAPPA AGED ABOUT 53 YEARS SECRETARY / CHIEF EXECUTIVE M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD, NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002.

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RAMAKRISHNA REDDY S/O LATE NARAYANAPPA AGED ABOUT 62 YEARS VICE PRESIDENT M/S NTI HOUSING CO OPERATIVE SOCIETY LTD., NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002.

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M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD, NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE SERPENTINE ROAD, KUMARA PARK WEST BANGALORE - 560 002 REPRESENTED BY ITS SECRETARY/ CHIEF EXECUTIVE PRATAPCHAND RATHOD. ... APPELLANTS

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(BY SRI. JAYAPRAKASH R. V, ADVOCATE)

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AND:

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SRI. SANJAY HARICHAND S/O HARICHAND B AGED ABOUT 52 YEARS RESIDING AT NO 3 AND 4 KAPILA RESIDENCE WEST PARK ROAD KUMARA PARK EAST EXTENSION BANGALORE - 560 001.

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N. MANJUNATH S/O LATE NARASIHMAIAH AGED ABOUT 62 YEARS NOW R/AT NO 277 GANGABHAVANI ROAD KODIGEHALLI SAHAKARANAGAR POST YELAHANKA HOBLI BENGALURU - 560 092.

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... RESPONDENTS (BY SMT.B.V. VIDYULATHA, ADVOCATE FOR C/R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 21.03.2022 PASSED ON I.A. NO. 1 IN O.S.NO. 1298/2022 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-8), ALLOWING I.A. NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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IN MFA NO. 4457/2022

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BETWEEN:

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PRATAPCHAND P RATHOD S/O LATE PEERAPPA AGED ABOUT 53 YEARS SECRETARY / CHIEF EXECUTIVE

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M/S NTI HOUSING CO OPERATIVE SOCIETY LTD, NO 84, 1^ST FLOOR, 8^TH CROSS SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002. 2. RAMAKRISHNA REDDY S/O LATE NARAYANAPPA AGED ABOUT 62 YEARS VICE PRESIDENT M/S NTI HOUSING CO OPERATIVE SOCIETY LTD, NO 84 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002.

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M/S NTI HOUSING CO OPERATIVE SOCIETY LTD NO 84, 1^ST FLOOR, 8^TH CROSS SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560002 REPRESENTED BY ITS SECRETARY / CHIEF EXECUTIVE PRATAPCHAND RATHOD. ... APPELLANTS (BY SRI. JAYAPRAKASH R V, ADVOCATE)

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AND:

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SMT. MAYA. H W/O HARICHAND B AGED ABOUT 74 YEARS RESIDING AT NO 4 WEST PARK ROAD KUMARA PARK EAST EXTENSION BANGALORE -560001.

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N. MANJUNATH S/O LATE NARASIHMAIAH AGED ABOUT 62 YEARS NOW R/AT NO 277 GANGABHAVANI ROAD KODIGEHALLI SAHAKARANAGAR POST YELAHANKA HOBLI BENGALURU - 560 092.

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... RESPONDENTS

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(BY SMT. B.V. VIDYULATHA, ADVOCATE FOR C/R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 21.03.2022 PASSED ON I.A. NO. 2 IN O.S.NO. 1297/2022 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-8), ALLOWING I.A. NO.2 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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IN MFA NO. 4458/2022

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BETWEEN:

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PRATAPCHAND P RATHOD S/O LATE PEERAPPA AGED ABOUT 53 YEARS SECRETARY / CHIEF EXECUTIVE M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD, NO. 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002.

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RAMAKRISHNA REDDY S/O LATE NARAYANAPPA AGED ABOUT 62 YEARS VICE PRESIDENT M/S NTI HOUSING

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CO OPERATIVE SOCIETY LTD NO. 84, 1^ST FLOOR, 8^TH CROSS SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST BANGALORE - 560 002. 3. M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD., NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST, BANGALORE - 560 002 REPRESENTED BY ITS SECRETARY/CHIEF EXECUTIVE PRATAPCHAND RATHOD. ... APPELLANTS (BY SRI. JAYAPRAKASH R V, ADVOCATE) AND:

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SRI. SANJAY HARICHAND S/O HARICHAND B AGED ABOUT 52 YEARS RESIDING AT NO 3 AND 4 KAPILA RESIDENCE WEST PARK ROAD KUMARA PARK EAST EXTENSION BANGALORE - 560 001. 2. N. MANJUNATH S/O LATE NARASIMAIAH AGED ABOUT 62 YEARS R/O NO 277, GANGABHAVANI ROAD KODIGEHALLI, SAHAKARANAGAR POST YELAHANKA HOBLI BENGALURU - 560 092. ... RESPONDENTS (BY SMT. B.V. VIDYULATHA, ADVOCATE FOR C/R1)

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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 21.03.2022 PASSED ON IA NO.2 IN O.S.NO.1298/2022 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-8), ALLOWING IA NO.2 FILED U/O.39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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IN MFA NO. 4460/2022

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BETWEEN:

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PRATAPCHAND P RATHOD S/O LATE PEERAPPA AGED ABOUT 53 YEARS SECRETARY / CHIEF EXECUTIVE M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD., NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST, BANGALORE - 560 002.

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RAMAKRISHNA REDDY S/O LATE NARAYANAPPA AGED ABOUT 62 YEARS VICE PRESIDENT M/S NTI HOUSING CO-OPERATIVE SOCIETY LTD, NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST, BANGALORE - 560 002.

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M/S NTI HOUSING CO OPERATIVE SOCIETY LTD, NO 84, 1^ST FLOOR, 8^TH CROSS, SUN SMILE, SERPENTINE ROAD KUMARA PARK WEST, BANGALORE - 560 002 REPRESENTED BY ITS

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SECRETARY / CHIEF EXECUTIVE PRATAPCHAND RATHOD.

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... APPELLANTS

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(BY SRI. JAYAPRAKASH R V, ADVOCATE)

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AND:

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SMT. MAYA. H W/O HARICHAND B AGED ABOUT 74 YEARS RESIDING AT NO 4 WEST PARK ROAD KUMARA PARK EAST EXTENSION BANGALORE -560 001.

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N. MANJUNATH S/O LATE NARASIMAIAH AGED ABOUT 62 YEARS R/O NO 277, GANGABHAVANI ROAD KODIGEHALLI SAHAKARANAGAR POST YELAHANKA HOBLI BENGALURU - 560 092.

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(BY SMT. B.V. VIDYLATHA, ADVOCATE FOR C/R1)

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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 21.03.2022 PASSED ON I.A.NO.1 IN OS.NO.1297/2022 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-8, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 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 the defendants in two similar but different suits for permanent injunction by the respective respondents-plaintiffs in O.S. Nos.1297/2022 and 1298/2022 on the file of the XI Additional City Civil and Sessions Judge, Bengaluru [for short, ‘ the civil Court’ ].

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The civil Court by the first set of the orders dated 21.03.2022 [which are called in question in MFA Nos.4457/2022 and 4460/2022] has allowed the corresponding plaintiffs-respondents' application [I.A. Nos.1 and 2] restraining the first, third and the fourth defendants from interfering with the possession of a residential site mentioned in the schedule appended to the plaint in O.S. No.1297/2022. The civil Court, by another order of the even date [which is called in question in MFA Nos.4448/2022 and 4458/2022], has allowed the application filed by the corresponding

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plaintiff-respondents in O.S. No.1298/2022 for

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injunction against interference with the possession and from putting up construction in another residential property described in the schedule appended in such plaint.

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The civil Court by the next order dated 22.04.2022 has restrained the fifth defendant from similarly interfering with the corresponding respondents-plaintiffs' possession of the respective property appended in the schedule to the plaint in O.S. No.1297/2022 and from changing the nature of such property. The fifth defendant has called this order dated 22.04.2022 in question in the appeal in MFA No.3998/2022.

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The parties, for convenience, are referred to as they are arrayed before the civil Court. The plaintiffs' case is that they have purchased their respective adjacent properties way back in the year 1994-95 from

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the undisputed original owners of the land in Sy. No.17 of Kodigehalli Village, Yelahanka Hobli, Bengaluru [the subject properties] and they have continued in possession of the respective sites. They also rely upon certain undertaking given by the Society viz., M/s. NTI Housing Co-operative Society [the common fourth defendant] to the Division Bench of this Court in the Writ Appeal in W.A. No.1332/2008 and the Orders of the Division Bench to contend that they cannot be dispossessed from the respective sites either by the Society or any person/s claiming under the Society without due process of law.

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On the other hand, the Society and some its office bearers, who are arrayed as first to third defendants, as also the fifth defendant, who claims title to the very same property as an 'allottee' from the Society [allotment is in the year 2021], commonly contend that neither the undertaking given in the aforesaid writ appeal nor the orders of the Division

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Bench would inure to the advantage of the plaintiffs.

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They urge different grounds in support of this contention including the ground that once the land is admittedly acquired for the purposes of the Society, neither the original owner nor the persons claiming under them can assert either possession or title.

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Significantly, the plaintiffs contend that it would not be open either to the Society or any other person, including its allottee, to raise such ground in view of the indisputable fact that the Society has commenced the suit in O.S. Nos.25533/2018 and 25535/2018 for recovery of possession admitting that the corresponding respondents-plaintiffs are in possession of the subject properties.

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For the purposes of the present disposal, apart from the afore concise statement of the rival claims, this Court must record that initially, the plaintiffs filed their corresponding suits only against the

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first to fourth defendants viz., the Society and its office bearers alleging that certain persons claiming under the Society were trying to take forcible possession of the subject properties notwithstanding the earlier suits O.S. Nos.25533/2018 and 25535/2018. They have approached this Court with the writ petition in W.P. Nos.4707/2022 and 4709/2022 for certain immediate relief because their applications for ex-parte injunction were not considered by the civil Court. These writ petitions are disposed of on 11.03.2022 calling upon the civil Court to decide the plaintiffs' application for injunction in a time bound manner.

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In the meanwhile, the plaintiffs have also filed application to implead the fifth defendant asserting that it has come to their knowledge that the fifth defendant has obtained certain building license after the sale deed from the Society in the year 2021 and the fifth defendant, acting in cohort with the other defendants is

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responsible for forcible dispossession and change in the nature of the subject properties. The plaintiffs have also filed another writ petition in W.P. No.8667/2022 impugning the sanction/building license granted by the local authorities for construction in the subject properties. This Court has granted interim order in favour of the plaintiffs.

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The civil Court, at the first instance, has decided the plaintiffs' application as against the original defendants [the first to fourth defendants] on 21.03.2022. The plaintiffs have filed the application to implead the fifth defendant in both the suits on 01.04.2022 and the fifth defendant has filed objections to such application on 11.04.2022. On the very same day, the plaintiffs have filed separate applications in the respective suits for temporary injunction against the fifth defendant. The impleading application is allowed on 18.04.2022. The fifth defendant has filed application

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under Order VII Rule 11 of CPC. On 21.04.2022, the learned counsel for the plaintiffs and the fifth defendant are heard on the applications for temporary injunction and the application for rejection of plaint, and these applications are decided on 22.04.2022. The fifth defendant in MFA No.3998/2022 has impugned the Order dated 22.04.2022 granting temporary injunction.

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Sri. Ashok Haranahalli, the learned Senior Counsel for the fifth defendant, and Sri. R.V. Jayaprakash, the learned counsel for the other defendants, have addressed this Court on different grounds in support of their respective appeals and they also urge common ground that with the plaintiffs admitting acquisition of the land in Sy. No.17 of Kodigehalli Village, the suit would not be maintainable in view of the decision of the Hon'ble Supreme Court in

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'COMMISSIONER, BANGALORE DEVELOPMENT

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AUTHORITY AND ANOTHER v. BRIJESH REDDY AND

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ANOTHER'¹ . They also assert that even if the plaintiffs could assert that they are in possession of the subject properties, in the light of their admission of acquisition proceedings, their possession undeniably would be illegal possession and persons who are in illegal possession cannot be granted injunction against the true owner.

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Sri. Ashok Haranahalli, apart from the aforesaid grounds, also contends that the civil Court could not have granted any injunction against the fifth defendant in the absence of specific allegations against this defendant in the plaint and a prayer for permanent injunction against this defendant. He relies upon the decision of the Hon'ble Supreme Court in 'SHEHLA

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BURNEY [DR]. AND OTHERS v. SYED ALI MOSSA RAZA [DEAD] BY LRS AND OTHERS'² .

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1 [2013] 3 SCC 66

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2 [2011] 6 SCC 529

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Smt. B.V. Vidyulatha, the learned counsel

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for the plaintiffs, rebuts each of these grounds drawing distinction between the present case and the cases before the Hon'ble Supreme Court. She submits that without the Society's undertaking and this Court's Order in the writ appeal in W.A. No.1332/2008, perhaps the defendants could have successfully argued that the plaintiffs are trespassers and are in illegal possession of the subject properties, but with the undertaking and the subsequent suits, it would not be permissible for the defendants to rely upon the decisions of the Hon'ble Supreme Court in BRIJESH REDDY's case supra .

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Smt. B.V. Vidyulatha also distinguishes the

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decision of SHEHLA BURNEY's case supra emphasizing that the present suits are in the nascent stage but the decision by the Hon'ble Supreme Court is after a decree. Even if there is lacuna in the pleadings insofar as the

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fifth defendant, it is early days, and the plaintiffs can always amend the plaint.

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Crucially, Sri. Ashok Haranahalli submits that the fifth defendant feels that the decision of the civil Court is in a rush and the fifth defendant's counsel is not given reasonable opportunity. The application for injunction is filed on 11.04.2022 along with the application for impleadment. The objections are filed on 21.04.2022 and the learned counsel for the appellants are heard on the same day and the impugned order is passed on the next date of hearing.

¶114

There could be sufficient and reasonable explanation for the civil Court to render its decision on the application against the fifth defendant on 22.04.2022 and such justification could also be found in this Court calling upon the civil Court to decide the question of temporary injunction, [though it is in the context of the original application filed against the other

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defendants], and the fact that the civil Court was called upon to hear the learned counsel for the plaintiffs and the other defendants repeatedly on earlier occasions.

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The civil Court could also be justified perhaps in its view, but this Court must opine that a party who suffers an order, must be satisfied that he or she had reasonable opportunity to put forth every aspect of his or her case. This Court in the peculiar facts and circumstances where the first set of applications is decided as against certain defendants and the other applications as against the fifth defendant is decided within a short time, is of the considered view that the civil Court will have to reconsider the merits of the rival claims once again after due opportunity and this time with the learned counsels co-operating with the civil Court without further complaining.

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At this stage, the learned Senior Counsel for the fifth defendant submits that there is order of Stay in the civil revision petition filed by them in CRP No.208/2022 but necessary submissions will be made before this Court in such petition for leave to the civil Court to hear the applications if they are now restored.

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As recorded earlier, the defendants have certain common grounds insofar as the plaintiffs' claim for injunction and if those grounds are being revisited at the instance of the fifth defendant, the orders as against the other defendants must also yield so that all the questions are reconsidered. This Court must also record at this stage that Sri. R.V. Jayaprakash, the learned counsel for the other defendants submits that though these defendants have cited the authorities, the same have not been considered. If the applications against these defendants are also considered even this grievance could be addressed.

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However, neither the fifth defendant nor the other defendants can take any advantage of the applications being restored for consideration and proceed with the construction or other activity in the subject properties. The defendants as also the plaintiffs must maintain the subject properties as it stands today without any change howsoever. This would enable a decision with reasonable opportunity and without precipitation. It would be needless to observe at this stage that the rival submissions are concisely recorded and described in the context of this Court's decision and there is no opinion expressed on the merits of any of the submissions.

¶123

For the foregoing, the appeals are allowed in part, and the impugned orders dated 21.03.2022 in O.S. Nos.1297/2022 and 1298/2022 [I.A. Nos.1 and 2 in both the suits] and the Order dated 22.04.2022 [I.A.

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Nos.6 and 8] in O.S. No.1297/2022 on the file of the XI Additional City Civil and Sessions Judge, Bengaluru, are set aside and the corresponding applications restored for reconsideration with due opportunity. The plaintiffs and the defendants are directed not to change the nature of the subject properties howsoever until the pending applications are decided by the civil Court.

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SD/JUDGE

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AN/-

Muralidhar v. Vs Smt.Maya H

Case brief

What is this about?

What did the court decide?

Muralidhar v. Vs Smt.Maya H

Case brief

What is this about?

What did the court decide?

What the court decided

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