Mr M Jacob Vs J Deborah

APOSTOLIC CHURCH OF GOD HAVING ITS REGISTERED AT NO.488, 2^ND MAIN, RAMESH NAGAR, VIBHUTHIPURA, BANGALORE-560 037. REPRESENTED BY ITS GENERAL SECRETARY & AUTHORIZED SIGNATORY SAMUEL .D.

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…APPELLANTS

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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(BY SRI JOSE SEBASTIAN, ADVOCATE)

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AND:

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J. DEBORAH D/O. MR. M. JACOB, R/AT NO.488, 2^ND MAIN ROAD, VIBHUTHIPURA, (RAMESHNAGAR), BANGALORE-560 037.

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J. MERCY FLORA D/O. MR. M. JACOB, R/AT NO.488, 2^ND MAIN ROAD, VIBHUTHIPURA, (RAMESHNAGAR), BANGALORE-560 037.

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NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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GLORY NITHALA KUMARI W/O. MR. M. JACOB, R/AT NO.488, 2^ND MAIN ROAD, VIBHUTHIPURA, (RAMESHNAGAR), BANGALORE-560 037.

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…RESPONDENTS

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(BY SMT. SUKANYA H.D., ADVOCATE FOR C/R-1 TO R-3)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED 24.08.2024 PASSED ON I.A.NO.2 IN O.S.NO.1738/2022 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-32, DISMISSING THE I.A.NO.II FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This Miscellaneous First Appeal is preferred by the plaintiffs calling in question the order dated 24.08.2024 passed on I.A.No.2 in O.S.No.1738/2022 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru (‘Trial Court’ for short), whereby the application filed by the appellants under Order XXXIX Rules 1 and 2 read with Section 151 CPC seeking temporary injunction against the respondents from obstructing repair of the existing toilet has been rejected.

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3 - NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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Brief facts:

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The plaintiffs instituted suit O.S.No.1738/2022 seeking cancellation of the gift deed dated 19.07.2017

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alleged to have been obtained fraudulently by defendant No.1 along with consequential relief of declaration, possession and permanent injunction. It is a case that the suit property was purchased by appellant No.1 in the year 1993 and a Church was constructed thereon, which is being administered through a Trust. It is further contended that the devotees have been using a toilet situated in the schedule property and the same has become dilapidated and unusable, necessitating repair. Alleging obstruction by the respondents, the appellants filed I.A.No.2 seeking temporary injunction to restrain such obstruction. The Trial Court while allowing I.A.No.1 restrained alienation of the property, rejected I.A.No.2 holding that the appellants failed to establish a prima facie case. Aggrieved by the same, the present appeal is filed.

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4 - NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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Learned counsel for the appellants would contend that the Trial Court has failed to appreciate the material on record, particularly the photograph demonstrating that the toilet is in a dilapidated condition and require immediate repair. It is submitted that the act sought is only a repair of an existing facility and not a new construction. It is contended that denial of permission to repair the toilet affects basic sanitation and the dignity of devotees and interferes with the religious activity conducted in the premises. It is argued that the Trial Court has erroneously treated the request as one involving unauthorized construction and failed to apply the settled principles governing grant of temporary injunction.

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Per contra , learned counsel for the

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caveator/respondents sought to justify the impugned order and submits that appellant No.1 himself has executed a registered gift deed dated 19.07.2017 in favour of respondent No.1 and the said document is subsisting and operating. In view of the same, the

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5 - NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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appellants have no subsisting right, title or possession over the suit schedule property to seek an interim relief. It is contended that respondents are in lawful possession and enjoyment of the suit property and any attempt by the appellants to interfere under the guise of repair is nothing but an attempt to alter the nature of the suit property and create evidence in their favour.

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It is admitted that the relief sought in I.A.No.2 is not simple prohibitory injunction but amounts to seek a mandatory direction permitting repair and construction, which cannot be granted at an interrogatory stage in the absence of a clear prima facie case.

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This Court has carefully considered the rival submissions and perused the material not recorded. The point that arises for consideration is:

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“Whether the appellants have made out a case to interfere with the order of the Trial Court rejecting I.A.No.2 and to grant temporary

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6 - NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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injunction restraining the respondents from obstructing repair of the toilet?”

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It is not in dispute that the suit itself is one for cancellation of a gift deed and declaration of title. The rights of the parties over the schedule property are seriously in dispute and are yet to be adjudicated in the trial. Insofar as I.A.No.2 is concerned, the relief sought is not merely prohibitory in nature but partakes the character of positive direction inasmuch as it seeks to permit the appellants to undertake repair work in the schedule property, when possession is disputed, cannot be granted. It is well settled that such relief at the interim stage are to be granted sparingly and only upon clear and cogent material demonstrating a strong prima facie case.

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It is contended that the Trial Court on

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appreciation of the material placed on record has recorded a finding that the appellants have not produced sufficient material to establish the existence of the alleged unusable toilet in the manner pleaded and to obstruction by the

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HC-KAR

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respondents preventing such repair. Further, the respondents have specifically contended that the appellants are undertaking to partake unauthorized construction under the guise of repair. In the absence of clear material distinguishing the nature of proposed work, the Trial Court was justified in exercising caution.

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The law is well settled that the Appellate Court would interfere with an order on an interlocutory application only when the discretion exercised by the Trial Court is shown to be arbitrary, capricious or perverse. In the present case, no such infirmity is demonstrated. In the

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absence of clear findings on possession and rights, permitting repair at this stage may lead to alteration of a nature of the property which cannot be countenanced in an interlocutory proceedings. Thus, this Court is of the considered view that the appellants have not made out of

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prima facie case, balance of convenience or irreparable injuries so as to warrant interference with the impugned

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NC: 2026:KHC:20660 MFA No. 7857 of 2024

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HC-KAR

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order and the point framed for consideration is answered

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accordingly and this Court pass the following:

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ORDER

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i. The Miscellaneous First Appeal is hereby dismissed as devoid of merits .

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ii. The order dated 24.08.2024 passed on I.A.No.2 in O.S.No.1738/2022 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru is hereby

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confirmed .

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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AT

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List No.: 1 Sl No.: 59

Mr M Jacob v. J Deborah

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Mr M Jacob v. J Deborah

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