G.Anil Kumar Vs G.Saraswathamma

RESPONDENTS NO.4 TO 6 ARE REP. BY SRI. CHANDA KESANNA S/O LATE C. PEDDA VENKATESHALU MANGAING PARTNER OF THE FIRMS D NO 4-1-3, URAVAKHANDA (MANDAL) ANANTHAPUR DIST - 515 812

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…RESPONDENTS

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(BY MS. HARIPRIYA K.S., ADVOCATE FOR R1 AND R2 SRI. N. RAMALINGA REDDY, ADVOCATE FOR C/R3 R4 TO R6 ARE SERVED AND UNREPRESENTED)

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HC-KAR

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THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 26.08.2021 PASSED ON I.A.NO. 1 IN OS.NO. 692/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff aggrieved by

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the impugned order dated 26.08.2021 passed on IA No.1 in O.S.No.692/2016 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC.

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Parties shall be referred to as the plaintiff and defendants for the sake of brevity.

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The plaintiff filed a suit against the defendants

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for a declaration to declare him to be the absolute owner of the suit schedule property and to direct defendants to

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HC-KAR

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hand over possession of the suit schedule property and, consequently, for a declaratory relief of the alleged GPA dated 17.04.2013 and the mortgage deed dated 26.04.2013 to be not binding on him. Along with the suit, an application came to be filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in IA No. 1 for temporary injunction to restrain the defendant Nos.1 to 6 from alienating the suit schedule property. The said application, upon contest, came to be rejected by the learned trial judge. Hence, the plaintiff is before this Court challenging the same.

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It is the contention of learned counsel for the plaintiff that the trial Court has committed an error in not allowing the application and granting him an interim order only for the reason that the plaintiff had not revealed the earlier suit filed by him for partition; therefore, there is suppression of material facts. Learned counsel for the plaintiff contends that in pursuance of the filing of this appeal, upon challenge made to the impugned order, this

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HC-KAR

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Court, vide the order dated 29.09.2022, passed the following order:

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"There shall be an order of injunction restraining the respondents, their agents or anyone claiming through them from in any way encumbering or alienating the suit schedule property to any persons."

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This order was passed subsequent to the appearance of the respondents herein, i.e., the defendant Nos.1 to 3. Respondent Nos. 4 to 6, despite service of notice, have remained absent. Respondent No.3 has filed objections to the application filed wherein, at paragraph No.2, it is stated as follows:

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"The averments made in para 2 of the affidavit that the appellant has filed the above appeal challenging the order dated 26.08.2021 passed on I.A.no.1 in O.S.No.692/2016 on the file of the Principal Senior Civil Judge and JMFC, Devanahalli, by which order said I.A filed by the appellant, seeking an order of Temporary Injunction was rejected do not require traverse. The further averment that the facts stated in the appeal memorandum and the grounds urged in support of same, may kindly be read as part and parcel of this affidavit do not require traverse."

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HC-KAR

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Learned counsel for the appellant/plaintiff

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further contends that in pursuance of the suit filed for partition and the present suit, both matters have been clubbed together and posted before the same Court for adjudication and are pending for trial. Therefore, he contends that in view of the order passed by this Court and the objections filed by respondent No.3, the same could be continued, and it will not cause any harm or hardship to either of the parties; so also, it will preserve the property, thereby not creating any multiplicity of proceedings, and the trial could proceed and the matter could be decided on merits.

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Per contra, learned counsel for respondent No.3, who has filed the statement of objection, does not

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deny paragraph No.2 of the affidavit, wherein it is categorically stated that the property is preserved intact, no development activities are taking place in the suit schedule property, and that respondent Nos.4 to 6/defendant Nos.4 to 6 are not concerned with the suit

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HC-KAR

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schedule property, as they are only financiers in the matter. It is also stated that the simple mortgage deed which was executed has been discharged and that the prayer as against respondents/defendants Nos.4 to 6 would not survive as there is no mortgage deed existing as of now.

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Learned counsel for the respondent No.3 also submits across the bar that he is not undertaking any developmental activities and he is agreeable to the matter being disposed of and sent back to the Court for disposal of his suit expeditiously where both the suits i.e., the partition suit and the present suit in question, are taken up together. The apprehension of the appellant/plaintiff has been addressed by respondent No.3 in the objection statement that no developmental activities are taking place, and also the mortgage deed, which was executed in favour of respondent Nos.4 to 6 has now been discharged and respondent Nos.4 to 6 do not have any right or say in the suit schedule property.

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HC-KAR

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The application filed by the appellant/plaintiff is

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for restraining all the defendants from alienating the suit schedule property till disposal of the suit and this Court, vide order dated 22.09.2022, has granted a temporary injunction order pending disposal of this appeal restraining the respondents/defendants from encumbering or alienating the suit schedule property to any person. The subsequent development with regard to the discharge of the mortgage deed affirms the fact that there was a mortgage deed executed by defendant No.3 in favour of defendant Nos.4 to 6 on the GPA executed by defendant Nos.1 and 2. Therefore, when the suit is filed by the plaintiff for declaration of his right on the basis of the will, it is essential to maintain the suit schedule property in the same form rather than any encumbrance or alienation with regard to the suit schedule property or third party rights.

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The said apprehension now has been resolved by the discharge of the mortgage deed as against respondent Nos.4 to 6/defendant Nos.4 to 6. Under the circumstances,

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HC-KAR

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the interim order granted by this Court will have to be made absolute till disposal of the suit, and the matter could proceed further in accordance with law. Accordingly, I pass the following order.

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ORDER

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1. The appeal is allowed.

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1. The impugned order passed on IA.No.1 in O.S.No.692/2016 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC by the learned trial judge is set aside.

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1. There shall be an order of temporary injunction restraining the respondents, their agents, or anyone from any way encumbering or alienating the suit schedule property till disposal of the suit.

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