Dismissed

Maharajakumari Sri Kamakshi Deviyavaru v. M/S Ideal Jawa (India Pvt. Ltd)

Karnataka HC18 Jul 2024MFA/2909/2024

Case brief

AI extract

What is this about?

Plaintiff in a suit over Mysuru trust properties sought temporary injunction restraining defendants from alienation after trial Court vacated an ex-parte injunction. The High Court held the trial Court's reasoned order citing plaintiff's delay and accrued third-party rights was neither untenable nor perverse and dismissed the appeal.

What the court decided

AI extract

Maharajakumari Sri Kamakshi Deviyavaru Vs M/S Ideal… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:27818 MFA No. 2909 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 2909 OF 2024 (CPC)

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BETWEEN:

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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MAHARAJAKUMARI SRI KAMAKSHI DEVIYAVARU, W/O ATMANYA DEV, D/O JAYACHAMARAJA WADEYAR, AGED ABOUT 69 YEARS, R/AT NO 164, CHAMUNDESHWARI KRUPA, 5^TH MAIN ROAD, DEFENCE COLONY, INDIRANGAR, BENGALURU NORTH, BEGNALURU 560 038. REP. BY HER POWER OF ATTORNEY HOLDERS: SRI PRSANNA KUMAR J.A., S/O SRI J.B. AJJE GOWDA AGED ABOUT 65 YEARS, RA/T DOOR NO.99, 5^TH CROSS, 2^ND MAIN, GANGANAGAR, BENGALURU 560 032. SRI S. HARISH RAO, S/O SRI SUKEENDRA RAO, AGED ABOUT 43 YEARS, R/AT NO 1860, 2^ND CROSS,K BLOCK, KUKVEMPU NAGAR, MYSURU 570 023.

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…APPELLANT

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[BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR SRI S. RAJASHEKAR, ADVOCATE (PH)]

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2 - NC: 2024:KHC:27818 MFA No. 2909 of 2024

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AND:

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M/s. IDEAL JAWA (INDIA PVT. LTD.) A PRIVATE LIMITED LIABILITY COMPANY INCORPORATED UNDER THE COMANIES ACT, HAVING ITS OFFICE AT INDUSTRIAL ESTATE, YADAVAGIRI, MYSURU,

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REP. BY ITS MANAGING DIRECTOR.

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M/s. SWEETY PROPERTY DEVELOPERS (P) LTD., A PRIVATE LIMITED LIABILITY COMPANY INCORPOATED UNDER THE COMPANIES ACT HAVING ITS OFFICE AT FLAT NO.12, 3^RD FLOOR, MARIAN MANZIL, 57 REYNOLD ROAD, MUMBAI 400 008 REP BY ITS DIRECTOR AQUIL QURESHI.

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M/s. SANKALP CONSTRUCTIONS (P) LTD., A PRIVATE LIMITED LIABILITY COMPANY, INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS OFFICE AT NO.D/6A, TEMPLE ROAD, V.V. MOHALLA, MYSURU 570 002. REP. BY ITS MANAGING DIRECTOR, SRI V.K. JAGADISH BABU, AND ALSO EXECUTIVE DIRECTOR, SMT GEETHA JAGADISH.

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…RESPONDENTS

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(BY SRI S.G. BHAVAN, ADVOCATE FOR R2 & R3 (PH); NOTICE NOT YET ORDERED IN RESPECT OF R1

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.27.02.2024 PASSED ON IA NO.1 AND IA NO.2 IN O.S.NO.10/2024 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC, ALLOWING IA NO.2 FILED U/O.39 RULE 4 OF CPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:27818 MFA No. 2909 of 2024

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JUDGMENT

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Challenging order dated 27.02.2024 passed by I Addl. Senior

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Civil Judge & CJM. Mysuru, in O.S.no.10/2024 on I.As. no.1 and 2 filed under Order XXXIX Rules 1 and 2 of CPC and Order XXXIX rule 4 of CPC respectively, this appeal is filed.

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Sri Jayakumar S. Patil, learned Senior Counsel,

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appearing for Sri Rajashekar S., learned counsel for appellant submitted appeal was by plaintiff in suit filed for declaration and permanent injunction etc. In said suit, I.A. no.1 for temporary injunction restraining defendants etc. from alienating, changing nature, creating any third party interest or encumbering suit schedule 'B' properties.

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It was submitted, initially trial Court had granted ex-parte ad interim order of injunction. Upon entering appearance, defendants no.2 and 3 filed written statement/objections. I.A.no.2 was filed under Order XXXIX Rule 4 of CPC for vacating ex-parte temporary injunction.

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On consideration, trial Court allowed I.A.no.2 and rejected I.A.no.1. Aggrieved, plaintiff was in appeal. While passing impugned order, trial Court had held plaintiff failed to

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NC: 2024:KHC:27818 MFA No. 2909 of 2024

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establish prima facie case, balance of convenience and also irreparable loss and injury, which was contrary to material on record. It was submitted, in plaint as well as affidavit filed in support of I.A.no.1, plaintiff had stated, then Maharaja of Mysuru, Sri Jayachamarajendra Wodeyar and absolute owner of suit schedule properties, executed settlement deed on 18.04.1955 settling suit properties in favour of his daughters. But, at that time, plaintiff (third daughter) was minor. To manage properties till she attained age of majority, a Trust was formed with Sri H.N. Palegar, as its Secretary.

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But, said Mr.Palegar, acted beyond his powers and executed sale deed in favour of defendant no.1 in respect of schedule properties. Thereafter, defendant no.1 sold them to defendants no.2 and 3. It was submitted, since Secretary of Trust, had no powers to sell, valid title passed to defendant no.1. Consequently, title of defendants no.2 and 3 was also defective. Such being case, attempt by defendant no.2 and 3 to develop suit property by construction of Apartments etc. and conveyance of same would invariably result in creating third party rights over suit property. Therefore, grant of temporary injunction was necessary to preserve suit properties.

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NC: 2024:KHC:27818 MFA No. 2909 of 2024

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Since entire claim of defendants was based on sale

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deed executed by Sri H.N. Palegar as Secretary of Trust, title continued to vest with Trustee. Therefore, alienation was fraudulent, it could be questioned at any point of time. Consequently, reason assigned by trial Court for rejecting application namely, delay in filing suit would be contrary to law. In view of fact that title vested with plaintiff, prima facie case stood established. It was further submitted, merely on ground that defendants had obtained loan, balance of convenience could not be held against plaintiff. If defendants were not erestrained from alienating suit properties, same would lead to multiplicity of proceedings. Even, relief in suit would also be frustrated. Under above circumstances, iteration of principle of lis pendense would not suffice. Therefore, plaintiff was entitled for temporary injunction. On said ground, sought for allowing appeal.

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On other hand, Sri S.G. Bhagavan, learned counsel appearing for defendants no.2 and 3 sought to support impugned order. It was submitted, scope for interference by appellate Court would be limited. And as plaintiff had not made out any ground of perversity or untenability, appeal was liable for dismissal.

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NC: 2024:KHC:27818 MFA No. 2909 of 2024

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Heard learned counsel and perused impugned

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order.

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From above, since challenge against impugned order on ground of untenability of conclusions, point that would arise for consideration is:

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“Whether order of trial Court is untenable or perverse and calls for interference?”

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This is an appeal challenging discretionary order passed by trial Court under Order XXXIX Rules 1 and 2 of CPC on I.A.no.1. As per decision of Hon'ble Supreme Court in Mohd. Mehtab Ibrahim Khan v. Khushnuma Ibrahim

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Khan , reported in 2013 (9) SCC 221 , scope for interference in appeal against discretionary order would be limited, unless it were untenable or suffered from perversity etc. It is also clarified therein that in case view taken by trial Court on available material were to be one of possible views, there could be no interference.

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Perusal of impugned order, reveals while passing impugned order, trial Court adverted to contentions of parties, framed necessary points for consideration and passed reasoned order.

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NC: 2024:KHC:27818 MFA No. 2909 of 2024

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On perusal of impugned order, it reveals that trial Court not only took note of plaintiff's contentions in light of various decisions/judgments relied upon to question alienation by Sri H.N. Palegar, it also refer to contentions of defendants no.2 and 3 about plaintiff attaining age of majority long ago and failure to challenge sale deed within time. Defendants no.2 and 3 contended, when defendant no.1-M/s Ideal Jawa Limited was under liquidation, suit property was sold in favour of defendant no.2 under sale deed dated 07.03.2006 by Official Liquidator ('OL' for short) after giving public notice on 28.07.2003. It also observed khata was mutated in favour of defendant no.2. Subsequently, City Corporation had permitted demolition of building etc. none of which acts were questioned by plaintiff. It was contended revisiting sale by OL would amount to sitting in appeal against order passed by this Court in Co.P.nos.76/1991, 5/1992 and 126/1992.

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Trial Court noted that suit was filed after more than 20 years and whether it was barred by limitation required consideration after recording evidence. Thus, main reason for refusing temporary injunction was delay in filing suit. It is settled law that conduct of plaintiff amounting to laches on part of plaintiff, would be ground for refusing grant of discretionary

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NC: 2024:KHC:27818 MFA No. 2909 of 2024

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relief. Lack of prudence, amounts to acquiescence. Hon'ble Supreme Court in case of Gujarat Bottling Company Limited

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v. Coca Cola Company Limited , reported in AIR 1995 SC 2372 , lack of bonafide conduct and earnest on part of plaintiff would disentitle him from discretionary relief.

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Since, most of events of which plaintiff is referring to and would be aggrieved have occurred decades ago and third party rights had accrued, it cannot be held order passed by trial Court denying temporary injunction as untenable or perverse. Trial Court has specifically observed that after execution of sale deed in favour of defendants no.2 and 3, khata was mutated in their favour. Very prayer for restraining defendants from changing nature or alienation of suit properties by defendants would indicate that they were in possession.

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In view of above, point for consideration is answered in negative. Consequently, appeal is dismissed.

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Sd/JUDGE

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Psg*

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List No.: 1 Sl No.: 30

Maharajakumari Sri Kamakshi Deviyavaru v. M/S Ideal Jawa (India Pvt. Ltd)

Case brief

What is this about?

What the court decided

Maharajakumari Sri Kamakshi Deviyavaru v. M/S Ideal Jawa (India Pvt. Ltd)

Case brief

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What the court decided

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