Allowed

Sri Kiran C v. Smt. Manasa S Kumara

Karnataka HC7 Mar 2023MFA/4889/2022

Case brief

AI extract

What is this about?

Appeal against trial court order granting temporary injunction restraining construction. High Court set aside the injunction, finding the trial court did not properly examine prima facie case, placed undue burden on defendants, and the plaintiff's conduct was disentitling due to forum shopping and non-disclosure.

What did the court decide?

The impugned order dated 28.06.2022 in O.S.No.1222/2022 on I.A.No.1 was set aside, and I.A.No.1 was dismissed. However, construction put up by defendants would be subject to the result of the suit, an

Sri Kiran C Vs Smt. Manasa S Kumara — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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M. F.A NO.4889 OF 2022 (CPC)

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BETWEEN:

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SRI KIRAN C S/O T.V.CHANDRASHEKARA REDDY, AGED ABOUT 30 YEARS, R/A NO.14, SRI VENKATESHWARA NILAYA, 9^TH MAIN, 2^ND CROSS, SRINIVASA REDDY LAYOUT, NEAR RELIANCE TOWER, RAMAMURTHY NAGARA, DOORAVANINAGARA POST, BENGALURU-560 016.

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…APPELLANT

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[BY SRI S.SHAKER SHETTY, ADVOCATE ]

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AND:

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SMT. MANASA S. KUMARA D/O M.R.SHIVAKUMARASWAMY, AGED ABOUT 27 YEARS, R/A MEDIHALLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. SURESH V., S/O LATE VENKATARAMAIAH, AGED ABOUT 52 YEARS, R/A MEDIHALLI, VIRGONAGAR POST, BIDIHARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. SHAMAIAH

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S/O LATE VENKATARAMAIAH, AGED ABOUT 47 YEARS, R/AT MEDIHALLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. NAGARATHNAMMA D/O LATE VENKATARAMAIAH, AGED ABOUT 45 YEARS, R/A MEDIHALLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. MUNIRAJU V., S/O LATE VENKATARAMAIAH, AGED ABOUT 43 YEARS, R/A MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. MUNENDRA V., S/O LATE VENKATARAMAIAH, AGED ABOUT 39 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. MAJULA V., D/O LATE VENKATARAMAIAH, AGED ABOUT 39 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. MAHADEVAPPA V., S/O LATE VENKATARAMAIAH, AGED ABOUT 49 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. VENKATAMMA S/O M.B.KRISHNAPPA, AGED ABOUT 66 YEARS, R/AT PARVATHINAGAR, MEDIHALLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. JAYAMMA W/O LATE RAMESH, AGED ABOUT 52 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. SHANTHAMMA S/O SRI. RAMESH, AGED ABOUT 50 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. CHANDRAMMA W/O SRI. MALLAPPA AGED ABOUT 52 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. VIJAYAMMA W/O LATE SUBRAMANI, AGED ABOUT 44 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. SIDDESH, S/O LATE KRISHNAPPA, AGED ABOUT 52 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SMT. ROOPA W/O SRI. ASHWATH, AGED ABOUT 37 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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STM. NAGARATHNA W/O SRI. MANJUNATH, AGED ABOUT 38 YEARS, R/AT MEDIHALLI HOBLI, VIRGONAGAR POST, BIDARIHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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M/s. V.B.INFRA PROPERTIES A REGISTERED PARTNESHIP FRIM REP. BY THE MANAGING PARTNERS, R/AT A NO.108, 1^ST FLOOR, D.R.DEFENCE COLONY, PHASE-2, CHEEMASANDRA, VIRGONAGAR POST, BIDARIHALLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. G.N.PAVAN KUMAR S/O SRI. G.V.NARAYANASWAMY R/AT A NO.38, 1^ST FLOOR D.R.DEFENCE COLONY, PHASE-2, CHEEMASANDRA, VIRGONAGAR POST, BIDARIHALLI, BENGALURU EAST TALUK, BENGALURU-560 049.

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SRI. DODDALA KIRAN KUMAR S/O SRI. NAIDU DADDALSUBRAMANYAN R/AT A NO.38, 1^ST FLOOR, D.R.DEFENCE COLONY, PHASE-2, CHEEMASANDRA, VIRGONAGAR POST, BIDARIHALLI, BENGALURU EAST TALUK, BENGALURU-560 049. …RESPONDENTS

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[BY SRI. RAVIVARMA KUMAR, SR. COUNSEL FOR SRI. KEMPARAJU, ADVOCATE FOR R1; SRI. K.B.S. MANIAN, ADVOCATE FOR R17 & R18 ; NOTICE IS DISPENSED WITH TO R2 TO R16 & R19]

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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 28.06.2022 PASSED IN O.S.NO.1222/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.10.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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Challenging impugned order dated 28.06.2022 passed by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.no.1222/2022, allowing I.A.no.1 passed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (referred to as 'CPC' for short), this appeal is filed.

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Appellant herein was defendant no.16, while respondent no.1 herein was plaintiff no.1 and respondents no.2 to 16 herein were defendants no.1 to 15 and respondents no.17 to 19 herein were defendants no.17 to 19 respectively in suit and will be referred to as such herein.

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O.S.no.1222/2022 is filed by plaintiff seeking for

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declaration that she is absolute owner in respect of site no.72, old property no.17, thereafter changed as property no.17/1A, 17/1B,

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Khatha no.17/1A/72 situated at Medahalli, Bidarahalli hobli, Bengaluru East Taluk, presently within jurisdiction of BBMP, to direct defendants no.16 to 19 to handover physical possession of schedule property to plaintiff; to grant permanent injunction restraining defendants no.16 to 19 from interfering with peaceful possession and enjoyment of schedule property; for mandatory injunction directing defendants no.16 to 19 to remove illegal structure/wall at their cost in suit property; to declare sale deed dated 06.10.2020 executed by defendants no. 1 to 1 in favour of defendant no.16 as not binding and to declare Joint Development Agreement (for short ' JDA ') and General Power of Attorney (for short ' GPA ') dated 07.04.2022 executed by defendant no.16 in favor of defendants no.17 to 19 as not binding on her etc.

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In said suit, I.A.no.1 was filed under Order XXXIX Rules 1 and 2 of CPC for ad-interim ex-parte temporary injunction restraining defendants no.16 to 19 not to put up construction and not to interfere with plaintiff's peaceful possession and enjoyment of schedule property till disposal of suit. In affidavit filed in support of said application, it was stated that on 22.01.2001,

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Smt.Parushamma, Sri. Venkataramaiah, Smt. Venkatamma, Sri. Suresh, Sri. Mahadeva, Sri. Shyamaiah, Smt. Nagarathna, Sri. Muniraja and Sri. Munindra executed registered sale deed in favour of Smt.Malini in respect of Sy.no.17/1A, measuring 05 guntas out of 39 guntas situated at Medahalli. It was further stated that from date of sale, purchaser was in peaceful possession of schedule property. Thereafter, on 22.10.2020 Smt.Malini - plaintiff's mother and partner in Karnasree Developer executed registered gift deed in respect of site no.72, old property no.17 carved out of Sy.nos.17/1A and 17/1B to plaintiff and on same day delivered physical possession. Thereafter, plaintiff was in possession and enjoyment of schedule property and got Khatha in her name and was paying property tax regularly. As such, she was in settled possession over schedule property. Therefore, subsequent JDA and GPA dated 07.04.2022 executed by defendant no.16 in favour of defendants no.17 to 19 was illegal and not binding on plaintiff. Defendants no.16 to 19 being well aware of fact that property belonged to plaintiff, had hatched criminal conspiracy to knock-off valuable property from plaintiff. It was asserted that defendant herein was a complete stranger without any right, title or interest

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over schedule property was trying to interfere with plaintiff's possession, using rowdy elements. Therefore, plaintiff had filed suit against Smt. Venkatamma. However, same was got dismissed as withdrawn due to technical defect. In said suit, defendant no.16 had filed written statement mentioning about execution of JDA and GPA on 07.04.2022 in favour of defendants no.17 to 19. It was stated that since defendants were putting up construction hastily and plaintiff being a lady, could not resist same, she filed application for temporary injunction.

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It was stated that plaintiff is having good case on merits

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and balance of convenience lie in her favour and if injunction were not granted, she would suffer grave hardship.

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Application was opposed by filing objections, wherein defendant no.16 contended that suit was not maintainable, false, frivolous and speculative and suffered from non-joinder and misjoinder of necessary parties and also hit by provisions of Order II Rule 2 of CPC. Suppression of material facts was also alleged. It was specifically asserted that defendant no.16 was absolute owner of property bearing site no.10, khata no.17/1A/10, formed in

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property no.17/1A, measuring east - west 40 ft. north - south 60 ft., totally measuring 2,400 sq. fts. situated at Medahalli, purchased under registered sale deed dated 06.10.2020 from Sri. Venkataramaiah. After purchase, BBMP issued khata in his name. Subsequently with intention to develop said property, he executed registered JDA and GPA dated 07.04.2022 in favour of defendants no.17 to 19. On strength of said documents, defendants no.17 to 19 had obtained building permission from BBMP as well as electricity connection. It was also stated that Smt. Parushamma, mother of defendant no.1 and grandmother of defendants no.2 to 8 was sole and absolute owner of Sy.no.17/1A, having purchased it under registered sale deed dated 31.03.1948. After death of Smt. Parushamma on 11.03.2015, Sri. Venkataramaiah, father of defendants no.2 to 8 died on 09.02.2021. Execution of GPA by Smt.Parushamma along with defendants no.1 to 16 in favour of Sri.Shivakumar was denied and sale deeds stated to have been executed in favour of plaintiff, being after death of Smt. Parushamma and Sri. Venkataramaiah would not convey any valid title. It was further stated that defendants no.17 to 19 were constructing building which had reached 2^nd floor by borrowing and

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investing heavy amount and interim injunction would subject them to great hardship.

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Failure to produce plaint and written statement in O.S.no.910/2021, which was filed and withdrawn was alleged to be not bonafide and sought for rejection of application.

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Defendants no.17 to 19, also opposed application on same grounds.

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Based on objections, trial Court framed following points

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for consideration:

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i) Whether plaintiff proves that he has made out prima facie case? ii) In whose favour balance of convenience lies? and iii) Who would be put to hardship, if temporary injunction is granted or refused?

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On consideration, trial Court answered points no.1 to 3

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in favour of plaintiff and allowed I.A.no.1 restraining defendants no.16 to 19 from putting up further construction over suit schedule property (stage of building as per photograph: ground + first floor

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built pending construction of walls for four corners, cement plastering and paint), till disposal of suit.

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Assailing said order, defendant no.16 has preferred this appeal under Order XLIII Rule 1 of CPC.

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Sri.Shekar Shetty, learned counsel for appellant - defendant no.16 submitted that impugned order was contrary to settled legal principles governing injunctions. It was submitted that restraining defendant from proceeding with construction when it was mid-way even when identity of plaintiff's property itself was in doubt, would be wholly unsustainable calling for interference.

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It was submitted that plaintiff's case was that she acquired site no.72, old property no.17 and thereafter changed as property no.17/1A, 17/1B, khata no.17/1A/12 situated at Medahalli, under registered gift deed dated 22.10.2020 from Smt.Malini. Plaintiff further claimed that her mother had acquired 05 guntas of land out of total 39 guntas in old Sy.no.17, present Sy.no.17/1A of Medahalli under registered sale deed dated 22.01.2001. Further Smt. Parushamma had executed irrevocable GPA on 22.01.2001 in

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favour of Sri.M.R. Shivakumaraswamy to extent of 34 guntas in Sy.no.17/1A along with affidavit affirming receipt of full sale consideration and Sri.M.R.Shivakumaraswamy was in actual possession of said land. It was also pleaded that said property was self-acquired property of Smt.Parushamma, who died on 11.03.2015 and none of her legal heirs had questioned GPA, affidavit and assignment. It was further pleaded that Smt.Malini and Sri. M.R. Shivakumaraswamy have formed layout in property and sold sites to various people, when defendants caused interference. Plaintiff had further stated that O.S.no.910/2021 filed on earlier occasion was withdrawn on 23.12.2022 and O.S.no.668/2022 was filed for permanent and mandatory injunction. In said suit, interim injunction was vacated at instance of defendant no.16. Even said suit was subsequently withdrawn.

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It was submitted that though, Smt.Malini had purchased only 05 guntas of land, she had executed as many as 10 sale deeds selling much larger extent of land than she had right over. Apart from sale deeds, she also executed gift deeds in respect of site no.41, 42 and 43 in old property no.17, later changed as

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17/1A and 17/2, measuring 5390 sq.fts. Thus, identity, title as well as extent of land was uncertain. Even measurements and boundaries did not tally and documents relied upon by plaintiff appears to be created only to usurp defendant.

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It was submitted that defendant no.16 was absolute owner of site no.10, khata no.17/1A/10 formed in property bearing no.17/1A acquired under registered sale deed dated 06.10.2020. Thereafter khata of property was also transferred in their name. Under such circumstances, no injunction could have been granted.

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It was submitted that though trial Court took note of fact that there was suppression about dismissal of earlier suit as withdrawn, without grant of liberty, it's observation that as reliefs sought therein were simpliciter, while in present suit relief sought for comprehensive, would be wholly illegal and untenable. Dismissal of earlier suit as withdrawn without grant of liberty was a material fact and plaintiff being well aware of same, deliberately failed to disclose it in present suit. Therefore, plaintiff was guilty of suppression of material fact which required to be taken note of seriously. Relying upon decision of Hon'ble Supreme Court in

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S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath

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(dead) by Lrs & Ors.¹ it was submitted that suppression of material fact would amount to fraud.

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Relying upon decision in Kashi Math Samstham & Ors. Vs. Shrimad Sudhindra Threertha Swamy & Ors.² , it was submitted that when plaintiff failed to establish prima facie case, no injunction can be granted even if balance of convenience and irreparable loss and injury were to be established. On above grounds, learned counsel sought for allowing appeal and to set aside impugned order of injunction.

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On other hand, Sri Ravivarma Kumar, learned Senior counsel appearing for Sri Kemparaju, learned advocate for respondent no.1, at outset submitted that defendant no.16 and defendants no.17 to 19 were not entitled for being heard in matter as their conduct was contumacious. It was submitted that learned trial Judge was pleased to grant temporary injunction after hearing defendants. Despite same, defendants had continued construction in willful and glaring disobedience thereof. Said fact was also

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1 AIR 1994 SC 853 ,

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2 AIR 2010 SC 296

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brought to notice of learned trial Judge by filing memo along with photographs on 02.07.2022 and also on 01.10.2022. Thereafter, plaintiff’s application under Section 151 of CPC to direct SHO, Avalahalli Police Station to stop further construction over plaint schedule property, same was allowed on 01.10.2022. Subsequently, plaintiff filed police complaint with Avalahalli Police on 10.10.2022. It was submitted that this would indicate continuation of construction in violation of interim injunction. Relying upon decision of Hon’ble Supreme Court in case of Prestige Lights Ltd. v/s State Bank of India ,³ it was submitted that any order passed by competent Court whether interim or final, has to be obeyed without any reservation. If a party disobeyed or not complied with order, Court may refuse to hear him unless he had purged himself of such contumacious conduct. It was submitted that since plaintiff by continuing construction, had violated interim injunction granted by trial Court and therefore was not entitled for being heard. Therefore, appeal was liable to dismiss in limine .

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3 2007 (8) SCC 449

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Without prejudice to said contention, even on merits, it was submitted that plaintiff’s mother Smt.Malini had purchased 05 guntas out of total 39 guntas on 22.01.2001 under sale deed executed by Smt.Parushamma, Sri.Venkataramaiah and defendants no.3 to 6 and on same day, another extent of 34 guntas was transferred in favour of plaintiff’s father Sri.M.R.Shivakumaraswamy by executing irrevocable GPA, full sale settlement receipt, affidavit and indemnity bond.

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It was submitted that very same executants were alleged to have executed registered Power of Attorney in favour of one Sri B.P.N.Murthy in respect of 36 guntas in Sy.no.17/1B of Medahalli. Thereafter, defendant no.16 claims to have purchased site no.10 i.e. suit property on 06.10.2020.

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On other hand, Smt.K.Malini, who was none other than plaintiff’s mother and partner of Karnasree Developers gifted site no.72, old property no.17 carved out of Sy.nos.17/1A and 17/1B in favour of plaintiff. On same day, donee accepted possession, got Khata changed in her name and was paying taxes to BBMP till date. Therefore, real issue before trial Court was – whether after

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execution of sale deed in favour of plaintiff’s mother on 22.01.2001, sellers had any subsisting title in respect of suit property for executing sale deed in favour of defendant no.16. It was submitted that earlier suits were filed without knowledge of these developments. After defendants entered appearance and raised such contention, suit was withdrawn.

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Second suit was filed for bare injunction. In said suit, defendant no.16 had filed written statement contending that suit for bare injunction would not be appropriate, as property was in possession of M/s. V.B.Infra Properties in view of JDA. Further, while passing orders on I.A.no.1 for temporary injunction, trial Court had observed that plaintiff was in possession of 39 guntas in Sy.no.17/1A. However, while passing impugned order reason assigned by trial Court was that on perusal of photographs and pleadings, defendants were in possession. It was submitted that both plaintiff and defendant no.16 were claiming right in respect of sites no.72 and 10, wherein both parties were claiming to be in possession of suit property. It was further submitted that plaintiff had specifically averred about earlier suits and rejection of

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application for temporary injunction. Therefore, there was no suppression.

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Learned Senior Counsel further pointed out that in paragraphs no.2 and 3 of order dated 06.06.2022, objection of defendant for withdrawal of suit was duly taken note of while granting liberty to file fresh suit on same cause of action. Since defendants had consented for withdrawal of suit at that point of time, they could not be permitted now to object present suit.

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It was further submitted that there were necessary pleadings to establish possession. It was submitted that since withdrawal of earlier suit was with permission, ratio in Ajay Mohan’s case (supra) would not apply. Relying upon decision of learned Single Judge of this Court in Bhimangouda vs. Sangappa Irappa Patil and Others⁴ , it was submitted that as previous suit was not decided on merits and withdrawal of earlier suit was with liberty to file fresh suit, it would not be barred by res judicata. Further, in view of grant of permission to file fresh suit, even reliefs abandoned in earlier suit could be reclaimed.

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4 AIR 1960 Mys. 178

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It was submitted that plea of res judicata could be considered only after recording evidence after examining all documentary material necessary to decide issue. Therefore plea of res judicata cannot form basis for passing grant of temporary injunction, relying upon decision of Hon'ble Supreme Court in case of Jamia Masjid Vs. K.V Rudrappa reported 2022 (9) SCC 225.

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It was further submitted that prayer sought in earlier suit was for restraining defendants from interfering with plaintiff’s possession, whereas in instant case, it was for restraining defendants no.16 to 19 from putting up further construction. Since interim injunction was granted only restraining further construction, after considering prima facie case, balance of convenience and irreparable loss and injury, no interference was called for.

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Sri K.B.S.Manian, learned counsel appearing for respondents no.17 and 18 submitted that admittedly plaintiff had earlier filed two suits. While withdrawing first suit, no liberty was sought for filing fresh suit and no such liberty was either reserved or granted. It was submitted that though second suit was

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withdrawn with liberty to file fresh suit, same was after rejection of application for temporary injunction. It was submitted that while considering application for grant of discretionary relief, trial Court was required to take note of conduct of plaintiff and where it was not found to be above board and bonafide, it was bound to reject application. In support of his submission, learned counsel relied upon decision of Hon’ble Supreme Court in case of Ajay Mohan v/s H.N.Rai ,⁵ to contend that internal res judicata would apply even in respect of two different stages of suit. It was submitted that Hon’ble Supreme Court in case of Kamini Jaiswal v/s Union of India and Anr. ,⁶ had deprecated practice of approaching different Courts for same relief by making minor change in relief clause as forum shopping. Referring to decision of Hon’ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Anr. ,⁷ it was submitted that assignment of title by executing irrevocable GPA prior to date of said decision were saved. Therefore, there was valid transfer of title in favour of plaintiff and, there was sufficient justification for grant of injunction.

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5 2008 (2) SCC 507

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6 2018 (1) SCC 156

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7 2012 (1) SCC 656

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In reply, learned counsel for defendant no.16 submitted that entries in revenue records attracted presumption that legal representatives were in possession. It was sought to be emphasized that when Smt.Malini acquired title only in respect of 05 guntas, whether she could claim to have acquired title in respect of more than 40 sites. It was submitted that filing or pendency of application for initiating contempt proceedings would be separate proceedings than application for grant/vacating interim injunction. Therefore, mere pendency of application filed by plaintiff under Order XXXIX Rule 2-A of CPC, would not result in barring appeal against order of injunction.

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Head learned counsel, perused impugned order and record.

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From above submission, point that would arise for consideration is:

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“Whether impugned order passed by trial Court on I.A.no.I filed under Order XXXIX Rule 1 and 2 of CPC, would call for interference?”

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From above narration and as noted by trial Court, main issue between parties is about identification of suit property. Insofar as prima facie case, it is observed by trial Court that neither plaintiff nor defendant no.16 produced any documents about formation of layout. According to it while plaintiff claimed right in respect of site no.72, defendant no.16 was claiming right in respect of site no.10. Trial Court concluded that documents produced by plaintiff prevailed over those produced by defendants no.16 to 19. Insofar as earlier suits filed by plaintiff, it observed that earlier suits were filed seeking simpliciter reliefs, while present suit was comprehensive. It’s reference to caveat emptor principle would cast burden on defendant no.16 to have purchased suit property after verification of title, which according to it, he failed. Therefore, it concluded that subsequent JDA under which construction was being proceeded with, could not be allowed.

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Insofar as balance of convenience and irreparable loss and injury, it observed that since plaintiff had established prima facie case and defendants no.16 to 19 were allowed to continue construction, they would not handover possession to plaintiff even if

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he succeeds in suit. It further observed that defendants having failed to verify title before beginning construction, could not be permitted to continue construction. As a measure of balancing equities, fixation of early date for disposal was adopted.

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Hon’ble Supreme Court time and again has clarified that while considering application for temporary injunction, trial Court would be required to consider whether plaintiff established prima facie case to examine balance of convenience and irreparable loss and injury between parties.

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Indeed, trial Court has framed proper points for consideration. However, while arriving at conclusion regarding prima facie case, after enumerating documents produced by respective parties, it has chosen to lean in favour of plaintiff on ground that documents of plaintiff were earlier in time than those of defendants no.16 to 19. Though legality of such procedure would be questionable, considering fact that trial Court was exercising discretionary jurisdiction and limits to judicial review over such orders in appeal, as set by Hon’ble Supreme Court, I desist from examining impugned order on said aspect.

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Even casting burden of establishing prima facie title in respect of property purchased by defendant no.16 upon said defendant at stage of consideration of interim injunction application would also be highly questionable and contrary to point framed for consideration.

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It is settled law that exercise of discretionary jurisdiction has to be based on well recognized judicial principles subject to various restrictions evolved. Conduct of parties is one such well recognized factor. Admittedly, prior to filing present suit, plaintiff had earlier filed O.S.no.910/2021 on 04.10.2021 before Civil Judge (Jr.Dn.) Bangalore Rural District, against defendants no.2 to 9. In said suit, defendants therein filed written statement stating that purchaser of suit property therein was constructing a building thereon in terms of JDA entered into.

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On 23.05.2022, plaintiff filed memo for withdrawal of suit on ground that suit was filed against wrong person. In view of said memo, suit came to be dismissed as not pressed . It would be

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relevant to note that, no liberty was reserved even though sought for.

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Thereafter on 25.05.2022, plaintiff filed suit for bare injunction and mandatory injunction in O.S.no.668/2022 before Civil Judge (Jr.Dn.) Bangalore Rural District, against Sri Kiran C. (defendant no.16 herein). On entering appearance, said defendant filed written statement stating that on strength of documents referred to, M/s. V.B.Infra Properties were in peaceful possession and enjoyment of suit property and they had obtained plan from BBMP and also electricity connection for construction of building thereon.

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Admittedly, in said suit, plaintiff had filed application for temporary injunction against defendant. Taking note of defendants contentions, trial Court proceeded to reject plaintiff’s application for temporary injunction by order dated 03.06.2022. Immediately thereafter, application under Order XXIII Rule 1 of CPC was filed by plaintiff contending that suit suffered from defect and seeking for its dismissal with liberty to file fresh suit. Said application was allowed on 06.06.2022 and present suit was filed on 08.06.2022. Though

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referring to ratio in Bhimanagouda's case (supra), it is contended that grant of liberty to file fresh suit would enable plaintiff to claim reliefs not sought for or given up in earlier suit, said ratio would be in respect of main relief. Likewise, though in Jamia Masjid 's case (supra), it is held that plea of res judicata would have to be considered only after trial and recording evidence, same would be in context of main relief sought and insofar as temporary injunction, there would be no bar for taking same into account in context of examining conduct of parties.

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Averments in plaint insofar as disclosure of earlier suit,

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there is no reference to rejection of plaintiff’s application for temporary injunction. Even in affidavit filed in support of I.A.no.I, there is no such disclosure. As rightly pointed out by learned counsel for defendants no.17 to 19 referring to Kamini Jaiswal’s case (supra), conduct of plaintiff filing earlier suit before Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore, failing in securing interim injunction and thereafter filing suit before Senior Civil Judge, although seeking comprehensive relief and which even if sought in same suit, would not have been maintainable before said

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Court. Insofar as interim relief, same would amount to forum shopping if not reflect upon conduct of plaintiff in not making clear disclosure while establishing bonafide.

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Hon’ble Supreme Court in case of Gujarat Bottling Co., Ltd., vs. Coco Cola Co., Ltd., AIR 1995 SC 2372 , has held that lack of bonafide conduct on part of applicant for temporary injunction would disentitle him from relief.

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In view of above discussion, impugned order calls for interference on several grounds. Firstly, as there is no detailed examination/discussion about how plaintiff established prima facie case; secondly, on ground of casting burden on defendants to establish their title over property purchased by them; thirdly, on ground that trial Court had noted that there was serious dispute about identity of suit property; fourthly, on ground that defendants putting up construction would indicate they being in possession and lastly, on ground of conduct of plaintiff in not disclosing rejection of plaintiff’s application for temporary injunction against defendant no.16 and attempt to reinvent same relief in form of filing

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comprehensive suit with minor change in nature of relief sought. Point for consideration is answered in affirmative.

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43. Consequently, following:

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O R D E R

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i. Appeal is allowed.

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ii. Impugned order dated 28.06.2022 passed by

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II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.no.1222/2022, on I.A.no.I filed under Order XXXIX Rule 1 and 2 of CPC is set aside, said I.A.no.I is dismissed.

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iii. However, construction put up by defendants would be subject to result of suit and both parties are directed to co-operate for early disposal and trial Court is directed to expedite disposal without granting unnecessary adjournments.

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iv. It is clarified that observations made in course of this order would be only prima facie and would not come in way of trial Court arriving at it's independent conclusion at time of final judgment by referring to evidence led by parties.

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Sd/JUDGE

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GRD

Sri Kiran C v. Smt. Manasa S Kumara

Case brief

What is this about?

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Sri Kiran C v. Smt. Manasa S Kumara

Case brief

What is this about?

What did the court decide?

What the court decided

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