Dismissed¶68

Shabbir Miyan v. Nagamma and Ors.

Karnataka HC3 Jul 2025MFA/202808/2023

Case brief

AI extract

What is this about?

Temporary injunction; Order 39 Rules 1 and 2 CPC; appeal under Order XLIII Rule 1(r) CPC; discretionary order; limited scope of interference in appeal against discretionary orders; perversity; prima facie observations at interim stage not binding at final judgment; Kalaburagi Bench; Ravi V Hosmani; Mohd. Mehtab Ibrahim Khan v. Khushnuma Ibrahim Khan (2013) 9 SCC 221; MFA 202808/2023; OS 5/2023 Humnabad.

What did the court decide?

Scope for interference with a discretionary order under Order 39 Rules 1 and 2 CPC is confined to orders that are untenable or perverse; here the trial Court framed proper points for consideration, passed a reasoned order, and no contention was urged that any material was ignored — consequently, scope for interference on the ground of perversity does not appear substantiated. ¶66

Shabbir Miyan Vs Nagamma and Ors. — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶68

Issue for consideration

Whether the impugned order (on I.A.No.I under Order 39 Rules 1 and 2 CPC in OS No.5/2023) suffers from perversity and calls for interference?

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Court's answer

¶66

Ratio / Principle

The trial Court's observations referring to copies of documents produced are prima facie considerations only and would not dispense with the requirement of parties leading evidence; the appellant/plaintiff's apprehension that such observations may affect him at final disposal can be redressed by making appropriate observations.

¶67

Key takeaways

Appeal dismissed with clarification that the findings/observations by the trial Court in the impugned order are at the interim stage only and would not bind the trial Court while passing the final judgment, which would be on the basis of evidence led during trial.ratio¶68

Detailed headnote1 paragraphs

Civil appeal under Order XLIII Rule 1(r) CPC by the plaintiff in OS No.5/2023 against the order dated 14.06.2023 of the Senior Civil Judge and JMFC, Humnabad dismissing his I.A.No.I filed under Order 39 Rules 1 and 2 CPC seeking temporary injunction restraining defendants no.4 and 5 from alienating suit property and creating third-party rights (dispute over 01 Acre 08 guntas; defendant no.5 allegedly purchasing 29 guntas in Sy.no.10/10 from defendant no.4). Held, relying on Mohd. Mehtab Khan v. Khushnuma Khan (2013) 9 SCC 221, that interference with a discretionary order is limited to cases where it is untenable or perverse; the trial Court framed proper points and passed a reasoned order and no material was said to have been ignored, so no perversity was made out. The trial Court's prima facie observations on documents do not dispense with leading of evidence and would not bind the final judgment. Appeal dismissed with a clarification that the impugned findings/observations are at the interim stage only.

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1 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 3^RD DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI

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MISCL. FIRST APPEAL NO. 202808 OF 2023 (CPC)

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BETWEEN:

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SHABBIR MIYAN S/O ABDUL RAZAQ, AGED ABOUT 73 YEARS, OCC: AGRICULTURE, R/O: HUMNABAD PROPER, TQ: & DIST: BIDAR – 585 401. THROUGH HIS POWER OF ATTORNEY HOLDER, SHAKEEL AHMED S/O.MD.ABDUL KHAYUM, AGED ABOUT 40 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: BIBI GALLI, HUMNABAD, TQ: HUMNABAD, DIST: BIDAR.

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…APPELLANT

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Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA

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(BY SRI K.M.GHATE, ADVOCATE)

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AND:

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NAGAMMA W/O LATE VISHNUREDDY, AGE ABOUT 50 YEARS, OCC: HOUSEHOLD, R/O: VILLAGE DHUMMANSUR TQ: HUMNABAD, DIST: BIDAR – 585 330.

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PRABHU REDDY S/O LATE VISHNU REDDY, AGE ABOUT 30 YEARS, OCC: AGRICULTURE,

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2 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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R/O: VILLAGE DHUMMANSUR, TQ: HUMNABAD, DIST: BIDAR – 585 330.

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SAI REDDY S/O LATE VISHNU REDDY, AGE ABOUT 25 YEARS, OCC: AGRICULTURE, R/O: VILLAGE DHUMMANSUR, TQ: HUMNABAD, DIST: BIDAR – 585 330.

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RAJ REDDY S/O LATE MANIK REDDY, AGE ABOUT 51 YEARS, OCC: AGRICULTURE AND SERVICE, R/O: VILLAGE DHUMMANSUR, TQ: HUMNABAD, DIST: BIDAR – 585 330.

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MIQZA IMRAN BAIG S/O MIRZA WAHED BAIG, AGE ABOUT 37 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GADWANTI, TQ: HUMNABAD, DIST: BIDAR – 585 330.

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…RESPONDENTS

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(BY SRI SACHIN M. MAHAJAN, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1 (R) OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDERS PASSED BY THE SENIOR CIVIL JUDGE AND JMFC HUMNABAD IN OS NO.5/2023 DATED 14.06.2023, DISMISSING I.A NO.I WITH COST OF RS.1000/-. THIS HON’BLE COURT MAY BE PLEASED TO ALLOW IA UNDER ORDER 39 RULE 1 AND 2 OF CPC AND PLEASE TO ISSUE TEMPORARY INJUNCTION RESTRAINING THE RESPONDENT DEFENDANTS NO. 4 AND 5 FROM TRYING TO ALIENATE, CREATE THIRD PARTY RIGHTS IN RESPECT OF SUIT PROPERTIES AS SHOWN IN THE SKETCH MAP OF THE PLAINT, TILL FINAL DISPOSAL OF THE SUIT, TO MEET THE ENDS OF JUSTICE.

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging order dated 14.06.2023 passed by Senior Civil Judge and JMFC, Humnabad in OS no.5/2023 on IA no.I, this appeal is filed.

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Sri K.M.Ghate, learned counsel submitted this was plaintiff’s appeal against order dismissing I.As no.I and II filed by plaintiff under order 39 Rule 1 and 2 of Code of Civil Procedure, 1908 (CPC). It was submitted, OS no.5/2023 was filed against respondents herein seeking for declaration and perpetual injunction etc. In said suit, I.A.no.I was filed for temporary injunction restraining defendants no.4 and 5 from alienating and creating third party rights over suit properties during pendency of suit. It was submitted, in affidavit filed in support of application, it was stated plaintiff had purchased 09 Acre 11 guntas in Sy.no.10/2 of Manik Nagar village under registered sale-deed dated 11.03.1977 from Veeranna Manikappa Pujari. Said Veeranna had purchased it from Manik Reddy under registered sale-deed dated 22.04.1974. It was stated Manik Reddy was father-in-law, grand-father and father

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4 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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of defendants no.1 to 4 respectively. It was further stated, as there was error in mentioning survey number of land, said mistake was got corrected by decree dated 21.03.2006 in OS no.154/1994. In pursuance of same, plaintiff applied for mutations, which were effected. Thereafter plaintiff had filed application for survey, demarcation and fixation of boundaries. Said demarcation found plaintiff in possession of 08 Acre 21 guntas. Out of same, extent of 05 Acres 23 guntas under different sale-deeds and retained 02 Acres 15 guntas. He got converted said land for non-agricultural purposes.

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But, during year 2018-19, he noticed on basis of created entries in record of rights, defendants no.4 and 5 begun claiming plaintiff’s property to extent of 01 Acre 08 guntas. Plaintiff realized that defendant no.4 had approached Deputy Commissioner for conversion of land use. Therefore, plaintiff filed revenue appeal.

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It was also stated that defendant no.5 claiming to

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have purchased 29 guntas in Sy.no.10/10 from defendant no.4 was trying to alienate said land in favour of third parties and

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5 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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therefore there was need for consideration/grant of ex-parte order of temporary injunction.

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Application was opposed, it was stated both lands i.e., Sy.no.10/7 and Sy.no.10/10 of Manik Nagar were converted for residential purpose, Town Planning Authority had approved layout and defendants were in process of developing land into a layout. It was stated without any right, title or interest, plaintiff was laying claim over developed land. Plaintiff’s claim of having purchased suit property was denied and sought for rejection of application.

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Based on same, trial Court framed following points

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for consideration :- 1. Whether the plaintiff has made out a prima facie case in his favour ?

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Whether the balance of convenience lies in his favour ?

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Whether the irreparable loss or injury would be caused to the plaintiff if the temporary injunction is refused ?

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What order ?

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and by answering points no.1 to 3 in negative, it dismissed application. Aggrieved, plaintiff was in appeal.

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6 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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It was submitted, when defendants had not seriously disputed ownership, title and possession of suit properties and entries in revenue records in name of plaintiff was in pursuance of decree in OS no.154/1994 without challenging said mutation, defendants claim would not sustain. Under such circumstances, dismissal of I.A.no.I was not justified. It was further submitted, when trial Court observed entire claim of plaintiff required trial, its observations/findings in course of impugned order appear conclusive even while being premature at pre trial stage. Said observations/findings were likely to affect valuable rights of plaintiff. Therefore, impugned order called for interference.

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It was also contended by dismissing I.A.no.I, trial Court had virtually permitted defendants to deal with suit property and create third party rights etc. It was also submitted, impugned order called for interference on ground of failure to apply judicious mind, being based on assumption and presumption etc.

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On other hand, Sri Sachin M.Mahajan, learned counsel for respondents/defendants opposed appeal. It was

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7 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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submitted scope for interference against a discretionary order would be extremely limited and sought dismissal of appeal.

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Heard learned counsel and perused impugned order

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as well as material placed along with memorandum of appeal.

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From above, since plaintiff is in appeal against order on I.A.no.I on ground of perversity, point that arise for consideration is :-

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“Whether order impugned suffers from perversity and calls for interference ?”

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same is answered in negative, for following reasons.

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Admittedly, order impugned is passed under Order 39 Rule 1 and 2 of CPC which is discretionary in nature. Hon'ble Supreme Court in Mohd. Mehtab Ibrahim Khan v.

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Khushnuma Ibrahim Khan, reported in 2013 (9) SCC 221, has held scope for interference in appeal against discretionary orders would be limited to cases where orders passed by trial Court were untenable or suffered from perversity, and even if view taken by trial Court on available material were one of possible views, there could be no interference.

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8 - NC: 2025:KHC-K:3620 MFA No. 202808 of 2023

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HC-KAR

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Perusal of impugned order reveals, trial Court not only framed proper points for consideration but also passed reasoned order. There is no contention urged that any material was ignored. Consequently, scope for interference on ground of perversity does not appear substantiated.

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And though observations are made by trial Court referring to copies of documents produced, same would not dispense with requirement of parties leading evidence to establish facts in support of their respective case. Observations are on prima facie consideration. Apprehensions of appellant/plaintiff about same affecting at time of final disposal of suit can be redressed by making appropriate observations. Point for consideration is answered in negative.

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Consequently, appeal is dismissed, but with clarification that findings/observations by trial Court in impugned order are at interim stage only, would not bind trial Court while passing final judgment which would be on basis of evidence led during trial.

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Sd/(RAVI V HOSMANI) JUDGE

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SN/List No.: 1 Sl No.: 48

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 14.06.2023 in OS No.5/2023 on I.A.No.I, dismissing plaintiff's application for temporary injunction under Order 39 Rules 1 and 2 CPC (recited in the appeal memorandum as dismissal with cost of Rs.1000/-)¶31
Senior Civil Judge and JMFC, Humnabad · 14.06.2023
Prior proceeding
Suit OS No.5/2023 filed by plaintiff against the present respondents seeking declaration and perpetual injunction etc.¶32
Prior proceeding
I.A.No.I filed in the suit for temporary injunction restraining defendants no.4 and 5 from alienating and creating third party rights over suit properties during pendency of suit¶32
Prior proceeding
Plaintiff's asserted chain of title: purchase of 09 Acres 11 guntas in Sy.no.10/2 of Manik Nagar village under registered sale-deed dated 11.03.1977 from Veeranna Manikappa Pujari, who had purchased it from Manik Reddy under registered sale-deed dated 22.04.1974¶32
Prior proceeding
Error in mentioning survey number corrected by decree dated 21.03.2006 in OS no.154/1994, pursuant to which mutations were effected in plaintiff's name¶35
Prior proceeding
After survey/demarcation showing plaintiff in possession of 08 Acres 21 guntas, plaintiff sold 05 Acres 23 guntas under different sale-deeds, retained 02 Acres 15 guntas and converted the land for non-agricultural purposes¶35
Prior proceeding
During 2018-19 defendants no.4 and 5 began claiming plaintiff's property to extent of 01 Acre 08 guntas on basis of created entries in record of rights; defendant no.4 approached Deputy Commissioner for conversion of land use; plaintiff filed a revenue appeal¶36
Prior proceeding
Defendant no.5 claimed to have purchased 29 guntas in Sy.no.10/10 from defendant no.4 and was trying to alienate said land in favour of third parties, prompting request for ex-parte temporary injunction¶38
Prior proceeding
Defendants opposed the application stating both Sy.no.10/7 and Sy.no.10/10 of Manik Nagar were converted for residential purpose, Town Planning Authority had approved layout, they were developing the land into a layout, and plaintiff's claim was denied¶42
Prior proceeding
Trial Court framed four points for consideration (prima facie case, balance of convenience, irreparable loss/injury, and order) and, answering points no.1 to 3 in the negative, dismissed the application¶48

Shabbir Miyan v. Nagamma and Ors.

Case brief

What is this about?

What did the court decide?

Shabbir Miyan v. Nagamma and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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