H K Venkatakrishnamma Vs Srinivasa

SMT GIRIJAMMA W/O LATE SRINIVASACHARY, AGED ABOUT 61 YEARS, R/AT WARD NO 13, KANDARA BAGILU, NEAR SREE VENKATARAWANASWAMY TEMPLE, CHIKKABALLAPURA TOWN, CHIKKABALLAPURA 562101

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MANJUNATHACHARY S/O LATE SRINIVASACHARY, AGED ABOUT 43 YEARS, R/AT WARD NO 13, KANDARA BAGILU, NEAR SREE VENKATARAWANASWAMY TEMPLE, CHIKKABALLAPURA TOWN, CHIKKABALLAPURA 562101

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SWATHY D/O LATE SRINIVASACHARY, AGED ABOUT 37 YEARS, R/AT WARD NO 13, KANDARA BAGILU, NEAR SREE VENKATARAWANASWAMY TEMPLE, CHIKKABALLAPURA TOWN, CHIKKABALLAPURA 562101

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SUBBALAKSHMAMMA D/O LATE SUBBACHARY, AGED ABOUT 61 YEARS, R/AT VENKATESHWARA NILAYA, 1ST CROSS, NEAR EES SCHOOL, NANJAPPA LAYOUT, J P NAGAR, BENGALURU 560078

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LAKSHMIDEVAMMA W/O LATE KONDACHARY, AGED ABOUT 81 YEARS, R/AT PANDURANGASWAMY STREET, GANGAMMA GUDI ROAD CROSS, CHIKKABALLAPURA TOWN 562101

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HEMANTHKUMAR S/O LATE SURYANARAYANACHARY, AGED ABOUT 46 YEARS, R/AT AJJAVARA VILLAGE, KASABA HOBLI, CHIKKABALLAPURA TQ 562101

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HC-KAR

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RAJENDRACHARY

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S/O LATE SUBBACHARY, AGED ABOUT 41 YEARS,

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R/AT VENKATESHWARA NILAYA, 1^ST CROSS, NEAR EES SCHOOL, NANJAPPA LAYOUT, J P NAGAR, BENGALURU 560078

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…RESPONDENTS

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(BY SRI. RAMESHA H.E., ADVOCATE FOR R3, R4, R7 & R8; NOTICE TO R1, R6 & R9 ARE SERVED AND UNREPRESENTED; V/O/D. 8.4.2025, NOTICES TO R2, R5 & R7 H/S)

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THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 04.12.2023 PASSED ON I.A.NO.1/2022 IN OS.NO. 600/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA, DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 AND R/W SECTION 151 OF CPC.

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THIS MFA, COMING ON FOR ADMISSION, 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 assailing the order on IA No.1 in OS No.600/2022, on the file of II Additional Senior Civil Judge and JMFC, Chikkaballapura, whereby the application filed by the plaintiff under Order XXXIX, Rule 1 and 2, read with Section 151 CPC seeking temporary injunction restraining

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HC-KAR

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the defendants from alienating or encumbering third party rights, in respect of the suit schedule property, came to be rejected.

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Heard the learned counsel appearing for the

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appellants and the learned counsel appearing for the respondents and perused the material on record.

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Brief facts:

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The case of the plaintiffs is that the suit

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schedule property was originally sold in the year 1950 and subsequently acquired by K.M. Thammaiah in a public auction conducted by the revenue authorities. It is contended that by virtue of subsequent transaction, K.M. Thammaiah became the absolute owner and was in possession of the properties, which continued with the plaintiffs after his demise. It is contended that apprehending interference and alienation by the defendants, the plaintiffs instituted the suit for declaration

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HC-KAR

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and injunction and filed I.A.No.1 seeking temporary injunction.

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The trial Court, upon consideration of the said application, rejected the application, which has given rise to the present appeal.

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The learned counsel appearing for the appellants submits that the trial Court has erroneously relied upon Execution Second Appeal No.108/1973, to conclude against the plaintiffs. It is submitted that the question of title requires adjudication in trial and ought not to have been conclusively determined at the interlocutory stage. it is contended that if injunction is not granted, third party rights would be created causing irreparable injury.

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Per contra, learned counsel appearing for the respondents sought to justify the impugned order and submits that there is no illegality or perversity warranting any interference by this Court. It is submitted that the earlier judgment in Execution Second Appeal No.108/1973

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HC-KAR

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has attained finality and operates against the plaintiffs. The plaintiffs have no prima facie title or possession and hence, are not entitled for injunction.

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Having heard the learned counsel on both sides,

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the point that arises for consideration is:

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“whether the impugned order passed by the trial Court warrants any interference by this Court?”

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The law is well settled that grant of temporary injunction is discretionary and governed by three cardinal principles, namely, prima facie case, balance of convenience and irreparable injury, as laid down by the Apex Court in the case of Wander Ltd. and another Vs. Antox India Pvt. Ltd.,¹ (Wander Ltd) wherein the Apex Court has held at paragraph No. 9 as under:

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“9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial

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1 1990 (Supp) SCC 727

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HC-KAR

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on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated

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“….is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ‘balance of convenience’ lies".

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The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations

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HC-KAR

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somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.”

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On perusal of the material on record, it is evident that the Trial Court has rejected the application primarily on the ground that the rights of the plaintiffs had already been adjudicated in Execution Second Appeal No.108/1973 dated 09.06.1975, wherein the claim of K.M. Thammaihah, from whom the title derived stood negatived. The said judgment having attained finality, the Trial Court has rightly held that the plaintiffs cannot reagitate the same issue in the present proceedings. the reliance placed on the earlier decision cannot be said to be misplaced, as it directly concerns the root of the plaintiffs claim.

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The Trial Court has considered the material on record which does not warrant interference. The appellants have failed to show any perversity, illegality or arbitrariness so as to warrant any interference by this

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HC-KAR

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Court. Accordingly, the point framed for consideration is

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answered and this Court pass the following:

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ORDER

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i) The Miscellaneous First Appeal is hereby

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dismissed .

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ii) The order dated 04.12.2023 passed on IA No.1/2022 in O.S.No.600/2022 on the file of II Additional Senior Civil Judge and JMFC., Chikkaballapura at Annexure-A is hereby

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confirmed.

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iii) It is made clear that any observations made in

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this order are only for the purpose of consideration of the interlocutory application and shall not influence the Trial Court while deciding the suit on its merits.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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PRS

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List No.: 1 Sl No.: 20

H K Venkatakrishnamma v. Srinivasa

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H K Venkatakrishnamma v. Srinivasa

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