Dismissed

Sri B Rajendra Prasad @ Rajendra Reddy v. Sri T K Sadashiva Reddy @

Karnataka HC23 Jun 2022MFA/874/2022

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal by a plaintiff challenging the rejection of his temporary injunction application under Order XXXIX CPC. The High Court upheld the lower court's decision, noting the plaintiff's significant delay in relying on occupancy rights and failure to adduce material facts. Consequently, the Court found no error in denying the injunction.

What did the court decide?

Application for temporary injunction rejected; appeal dismissed; petition disposed of accordingly.

Sri B Rajendra Prasad @ Rajendra Reddy Vs Sri T K… — Specific Performance | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 23^RD DAY OF JUNE, 2022

¶4

BEFORE

¶5

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

¶6

MISCELLANEOUS FIRST APPEAL NO.874/2022 (CPC)

¶7

BETWEEN:

¶8

SRI B RAJENDRA PRASAD @ RAJENDRA REDDY S/O. LATE. BUDDAPPA, AGED ABOUT 59 YEARS R/AT NO. 222, TOP BAKERY ROAD, TUBARAHALLI, VARTHUR HOBLI, BENGALURUL EAST TALUK,

¶9

... APPELLANT

¶10

(BY SRI. S.KALYAN BASAVARAJ, ADVOCATE)

¶11

AND:

¶12

SRI T K SADASHIVA REDDY @ MUNICHOWDA REDDY, S/O. LATE. M. KRISHNA REDDY, AGED ABOUT 46 YEARS

¶13

¶14

SRI. K SRINIVASA REDDY @ MUNI REDDY S/O. LATE. M. KRISHNA REDDY, AGED ABOUT 48 YEARS

¶15

BOTH ARE R/AT HEBBAGODI VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BENGALURU URBAN DISTRICT

¶16

SRI. CHETHAN REDDY S S/O. LATE. T K SAMPANGI REDDY @ SAMPAIAH REDDY, AGED ABOUT 21 YEARS

¶17

NO. 163, TOP BAKERY ROAD, BEHIND TOP BAKERY, THUBARAHALLI (VILLAGE), RAMAGONDANAHALLI POST, BENGALURU NORTH, BENGALURU 560066

¶18

SMT. CHANDRAKALAVATHI D/O. SRI. G NAGAMALLAIAH, R/AT NO. 974, BMP, HAL 3RD STAGE, THIPPASANDRA POST, BENGALURU 560075

¶19

SRI. GANGADHAR R/AT VILLA NO. 40, AKSHAYA REDSTONE, OPP. SHELL PETROL BUNK, SEEGEHALLI, KADUGODI, BENGALURU 560067

¶20

¶21

M/S. UNITED INFRASTRUCTURES A REGISTERED PARTNERSHIP FIRM, HAVING REGISTERED OFFICE AT NO. 06, ITPL MAIN ROAD, ABOVE UDUPI PARK, MAHADEVAPURA, BENGALURU 560048. REP BY ITS PARTNER, SRI. RAGHAVENDRA REDDY, S/O. R. THIMMA REDDY, AGED 47 YEARS,

¶22

... RESPONDENTS

¶23

(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE FOR SRI. VIJETHA R. NAIK, ADVOCATE FOR C/R5 AND R6)

¶24

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,1908 AGAINST THE ORDER DATED 21.1.2022 PASSED ON I.A. NO. IV IN O.S.NO. 1966/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, REJECTING I.A. NO.4 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

¶25

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

¶26

¶27

JUDGMENT

¶28

The plaintiff, who is unsuccessful in the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure 1908 (for short, 'the CPC' ) in O.S.No.1966/2021 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (for short, ' the civil Court' ), has called in question the civil Court's order dated 21.01.2022. The civil Court by this common order dated 21.01.2022, while considering other applications such as an application (I.A. No. V) for amendment of the plaint under Order VI Rule 17 of CPC, has rejected the petitioner's application (I.A. No. IV) under Order XXXIX Rule 1 and 2 of CPC.

¶29

The appellant - plaintiff's application (I.A. No. IV) is for temporary injunction against alienation of the land measuring 1 acre 22 guntas in Sy.No.326 of Amani

¶30

¶31

Bellandur Khane, Varthur Hobli, Bengaluru East Taluk. This property is referred to as ' the subject property', and the parties are referred to as they are arrayed before the civil Court.

¶32

The plaintiff has tested his claim over the subject property in the earlier suit in O.S.No.5083/2005 which is decided on 05.11.2012, and he is unsuccessful inasmuch as this suit for declaration and possession is dismissed. The plaintiff’s appeal in R.F.A.No.46/2013 as against this judgment dated 05.11.2012 is dismissed for default. The plaintiff has filed the present suit again for declaration that he is the absolute owner of the subject property and for further declaration that the sale deed dated 02.07.2005 executed by the first to third respondents in favor of the fourth respondent is null and void and for delivery of possession. The plaintiff has filed this suit initially only against the first and fourth respondents, but

¶33

¶34

the fifth and sixth respondents are impleaded on their application without the plaintiff contesting the application.

¶35

The plaintiff has asserted in this suit that in the earlier proceedings in O.S No. 5083/2005 he had relied upon testamentary disposition by his grandfather, Sri. Munishamaiah, to assert title to the subject property. Then he could not have known that his mother, Smt. Kenchamma, is granted occupancy rights for the subject property on 09.09.1988 in L.R.F.No.5374:1979-89, but she is granted such occupancy rights, and on her demise, he has succeeded to the subject property. The deceased Sri. Krishna Reddy has played fraud in bringing about a partition deed within his family members on 11.11.1999, and in terms of this partition, the first to third defendants are allotted the subject property. These defendants have in turn transferred the subject property in favor of the fourth respondent on 02.07.2005. The first to fourth respondents, who cannot deny the grant of

¶36

¶37

occupancy rights, cannot claim any title under this partition or the subsequent sale deeds. His title to the subject property, because of his mother's title and the devolvement in his favour, must prevail notwithstanding the decision in the earlier proceedings in O.S.No.5083/2005.

¶38

The fourth to fifth defendants [the contesting

¶39

defendants], who are yet to file their written statement, have contested the plaintiff's application for temporary injunction relying upon not only on the decision in O.S.No.5083/2005 but also on the sale deed executed by the plaintiff on 02.07.2005¹ . The contesting defendants assert that the plaintiff's maternal grandfather - Sri. Patel Munishamaiah - the undisputed owner of the subject property - has transferred this property in favor of Sri. Krishna Reddy under a gift deed. The plaintiff's maternal grandmother, Smt. Pillamma, has filed a suit in

¶40

1 This sale deed is for another parcel of land

¶41

¶42

O.S.No.3241/1980 for declaration of title to the subject property and for possession challenging such Gift Deed. On her demise, her daughter (the plaintiff's mother - Smt. Kenchamma) is brought on record. Neither Smt. Pillamma nor Smt. Kenchamma have relied upon the application allegedly filed for grant of occupancy rights to the subject property or the grant of such occupancy rights. The plaintiff has also not mentioned the grant in his earlier suit in O.S.No.5083/2005. The plaintiff cannot succeed in the application filed in the year 2021 because of these circumstances.

¶43

It is undisputed that the contesting defendants have commenced construction of a multi storied residential apartment building in the subject property and they have constructed more than 200 of such units. When queried, it is stated on behalf of the contesting defendants that they have either executed sale deeds or sale agreements for most

¶44

¶45

of the apartments, and only 8 residential apartments are free from encumbrance.

¶46

The civil Court has primarily rejected the plaintiff's application for temporary injunction for the reasons that the plaintiff has concealed material facts; his present suit and application for temporary injunction are three decades from the date of the alleged grant of occupancy rights; his interest is protected under Section 52 of the Transfer of Property Act, 1882. The civil Court has observed that though the plaintiff has disputed the sale deed dated 02.07.2005, he has not challenged the partition deed dated 11.11.1999 or such sale deed.

¶47

Sri. S. Kalyan Basavaraj, the learned counsel for the plaintiff, submits that the civil Court while considering the respondents' application for rejection of the plaint under Order VII Rule 11 of CPC has found that the suit cannot be dismissed at the threshold either on the ground

¶48

10 -

¶49

of limitation or res judicata . The plaintiff can also demonstrate that the suit is not barred by limitation. If the suit is not barred by limitation, and if the plaint cannot be rejected under Order VII Rule 11 of CPC, the plaintiff's request for temporary injunction against creation of thirdparty rights in the subject property cannot be rejected on the ground of delay.

¶50

Sri. S. Kalyan Basavaraj next argues that the civil Court has also opined that, in the circumstances of the case, the provisions of Section 52 of the Transfer of Property Act 1882 afford requisite protection to the plaintiff in the event he succeeds. But the doctrine of Lis Pendens incorporated in Section 52 of the Transfer of Property Act 1882 cannot protect the plaintiff’s interest. He relies upon the Division Bench decision of the Bombay High Court in

¶51

Prakash Gobindram Ahuja Vs. Ganesh Pandharinath

¶52

11 -

¶53

Dhonde & Ors² in support of his submission in this regard. He submits that, in any event in the facts and circumstances of the case, this Court must call upon the contesting defendants to include in the Deeds that they may execute in favor of any third parties, a stipulation that the plaintiff's claim over the subject property is sub judice in the present proceedings and the same shall be subject to the ultimate decision in the suit. In this regard he relies upon the decision of the Hon'ble Supreme Court in Mandali Ranganna and Others Vs. T. Ramachandra and Others³ .

¶54

Per contra , Sri. Ravi B. Naik, the learned Senior counsel for the contesting defendants, submits that the plaintiff cannot deny that neither his grandmother nor his mother relied upon the grant of occupancy rights in the proceedings in O.S No. 3241/1980, and the plaintiff has

¶55

2 2013 SCC Online Bom 1788

¶56

3 (2008) 11 SCC 1

¶57

12 -

¶58

also not referred to the grant in his earlier suit in O.S No. 5083/2005. This creates serious doubts about the genuineness of the plaintiff's claim to the subject property based on the occupancy rights. Even otherwise, the plaintiff who has asserted title to the subject property in the earlier proceedings based on a testamentary dispossession by his maternal grandfather, cannot after all these years, assert any right based on the grant of occupancy rights. The learned Senior counsel emphasizes that the plaintiff's failure to prosecute the appeal in R.F.A.No.46/2013 as against the judgment in O.S.No.5083/2005 and his conduct in initiating the present suit relying upon the alleged grant of Occupancy Rights for the first time after three decades from the date of such grant must be considered in deciding on whether the civil Court has erred in its exercise of discretion in rejecting the plaintiff's application. In the circumstances of the case,

¶59

13 -

¶60

the civil Court has rightly rejected the plaintiff's

¶61

application.

¶62

It is settled that an appellate does not substitute its own discretion with the original Court’s discretion in deciding the application under Order XXXIX Rule 1 and 2 of CPC unless exercise of such discretion is contrary to the settled law or is perverse or irregular⁴ . Therefore, the question for consideration is:

¶63

Whether the civil Court’s exercise of discretion in rejecting the plaintiff’s application for temporary injunction is either arbitrary or perverse or contrary to law.

¶64

The plaintiff cannot deny, and in fact he does not, that he staked a claim to the ownership of the subject property based on a testamentary dispossession in O.S No. 5083/2005 and did not mention the grant of occupancy

¶65

4 A useful reference can be made to the decision of the of the Hon’ble Supreme Court in Wander Ltd. V. Antox India (P) Ltd., reported in 1990 Supp SCC 727.

¶66

14 -

¶67

rights to the subject property in favor of his mother or assert rights under such grant in his favor after his mother's demise. The plaintiff, with the dismissal of the suit, has preferred an appeal [RFA No. 46/2013] and this appeal is dismissed for default. The plaintiff cannot, and does not, dispute that neither his grandmother,

¶68

Smt. Pillamma, nor his mother,

¶69

Smt. Kenchamma, who commenced and prosecuted the suit in OS No. 3241/1980⁵ , relied upon the grant of occupancy rights.

¶70

It is not even argued that in either in O.S No. 3241/1980 or in the subsequent suit in O.S.No.5083/2005 [a suit commenced by the plaintiff for declaration of title and for possession], there was any order

¶71

restraining Sri. Krishna Reddy or the first to third defendants who claim under him or any other member of

¶72

5 This suit is admittedly for declaration and possession and is commenced against the plaintiff's grandfather, which is dismissed on 30.09.1991 .

¶73

- 15 -

¶74

his family. These persons have been in possession even according to the undisputed facts for over three decades. The plaintiff has filed this suit three years after the dismissal of appeal in RFA No.46/2013, and for the firsttime after three decades of the grant of occupancy rights suit is filed essentially contending that he was ignorant of the grant for over three decades.

¶75

Perhaps, the grant of Occupancy rights in favor of Smt. Kechamma is true, and this will be known after trial. However, the aforementioned circumstances indicate an undeniable delay, and this delay will be significant in the context of decisions in O.S.No.3241/1980 and O.S.No.5083/2005 and the undisputed fact that the defendants have already constructed multi storied residential building. The first to third defendants have executed sale deed in favor of the fourth respondent in the month of November 2018. The plaintiff has neither impleaded the contesting defendants nor referred to such

¶76

16 -

¶77

transfer, and this is despite contending that he has done his due diligence to ascertain the transfer of the subject property before filing the present suit in the 2021.

¶78

The delay in commencement of the suit and the conduct which is not equitable cannot be ignored in deciding on the merits of an application for temporary injunction. Prima facie , these circumstances render themselves to a reasonable inference that all the materials are not brought on record. It is salient that a plaintiff, to be entitled to the equitable relief of temporary injunction must come to the Court with clean hands and even if the plaintiff satisfies the other requirements of establishing a prima facie case, balance of convenience and irreparable injury, but fails on this requirement, the Courts will not grant the relief of temporary injunction. Therefore, no exception can be taken with the civil Court opining that the plaintiff has suppressed material facts.

¶79

17 -

¶80

For the foregoing, this Court is not persuaded to opine that the civil Court has erred in exercise of its discretion in rejecting the plaintiff's application. The petition stands disposed of accordingly.

¶81

SD/JUDGE

¶82

Sri B Rajendra Prasad @ Rajendra Reddy v. Sri T K Sadashiva Reddy @

Case brief

What is this about?

What did the court decide?

Sri B Rajendra Prasad @ Rajendra Reddy v. Sri T K Sadashiva Reddy @

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri T C Udaya Kumar Vs M/S Santhosh Shelters Pvt. Ltd.

Sapna Shetty Vs Sudhakara Shetty

Ms. Payal Sandhu Khurana Vs Alabama Design Consultants LLP

Dr Aruna Mohan Vs M/S Sm Visions

Chabbras Associates Vs the Superintending Engineer

Smt Indira Ananthanarayana Vs Nil