Karnataka High Court
Felix Ediwn D Souza vs B R Girish on 3 August, 2010
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
BEFORE
THE HON'BLE MR. JUSTICE s.N,A$ATYA:\:~AnA3'.A:v.)§. "
WRIT PETITION No.8642 o%r"~j2c:»_'1o.:('
BETWEEN:
1.
1'.A
Srl Felix Edwln D'Souza,
S/0. Marian D Souza',~..V_
Aged about 66 years, _ '
R/at Lobo Prabhu Com;3.oun'df __
3"' Fioor, F|at.vNo.3Q5;'3.08~, '
Light Hous:e'H..EV1I;-- _
Manga|Qre;., . '
Sri P.rem'V'D%'VSc§u;;a,
Aged aboutV36"-yeaerS;.eVT ' -
R/at 'Pad-wa|*
K.C.Ro"a;i," Kinya F'.ost,"_;-
Mangaior'e._' .
V' _A(By:.,§ri a.I;Tr1--a fa neth""PbOja ry, Adv.)
B. riulsh,
Aged about 43 years,
S/'O, late B.Raghava,
" =»C/o."'Prashanth N.,
x M;a'njunatha Sadana,
Nandi Gudda, 15' Cross,
Jeppu Bappat, Mangalore,
and atso at G--2,
s/cg. Fe|iXAVF€cf_Vwi:"£':V'D smgza,
...?ETITIONERS
Naveen Apartments,
13"' Main Road,
Vasanthnagar,
Bangaiore.
2. Sri Wilfred D Souza,
S/o. Saivadore D Souza, '
Aged about 43 years,
R/o. Ullal Holge House,
Peremannur post,
Mangalore.
(By Sri S.K.Ramesh, Adv. for -- K
Sri M.R.Balai<rishna, Adv,,_for'."R2"). jg
This writ petition is filedlju'ndei:..A'i*ti;cles 226 & 227 of
the Constitution of Indiiayprayin-g 'to q'uaas'n'the order dated
30.1.2010, pas'sed1'~by=:_the .,Court* .jof_IIVf'Addl. Civil Judge
(Jr.Dn.) Ma4ng.alc=ii'e._i_ in V0;-S.No-.9_4,4/009",' on I.A.III, vide
Annexure A _&vConseq"ue--n't'i*y__allow-the I.A.No.III filed by
the petitiVone'r_in ('3;.,,S.i\io;'9V44-/'0.9_, vide Annexure --- D.
'i"--.his._ -for preliminary hearing this
day, the.Co.urt madje.thve__fe,lglowing:
';'~gRDER
€'"i'h'i's "petition iiiii filed by defendants 1 and 3
't4he.Vo.i'der dated 30.10.2010 passed on I.A.3 in
on the fiie of the Civil Judge (Jr.Dn.,),
Wu
0 :ai~i'si5'tf\i'i5EVNTs V
2. The brief facts leading to this petition are as
under
The 15' respondent herein is the
petitioner herein is the 15* defendant, 2'-"*""vrespo'n:deAnt,y:"
herein is the 2"" defendant and 15*:'petit~io.n'er'--herein'isj-rt_he;;y._A« 3"' defendant in 0.5.944/2009:_for the'-relief injunction by the plaintiff against..:_defendantse"1 3 in respect of the suit scheduié DyriJ.Des;;yrt¢y{
3. The 'agreement holder for purchase" an agreement of sale idated 2"" defendant under generai 1"p.ower'of 215' defendant in respect of suit scheduie.proper1:y'own'ed by 3'" defendant.
4. E"ii£.e!ati~onshipmbetween the defendants is as under:
V3-13.:V':'defe.nd'3nt is the owner of the suit schedule proFI'e.FtY.,."fi'ndyi'.~'15" defendant IS his son. It Is pleaded by the Z""'--._VVV'p|yaiyntiffvthat the 15' defendant as power of'attorney hoider A ro.f'vh_is'.--'father 3"' defendant, has further executed a power "of? attorney in favour of 2"" defendant. Based on the said '*"\ power of attorney, the agreement of sale is executed in his favour on 31.10.2007 for sale of suit schedule property for valuable consideration of Rs.1.00 crore,
-_ agreement of sale, an amount of Rs.10.00 ~ I by him. It is the case of the plairgtrrrthatrjisi'"3i';;,1oi; he issued a iegal notice caliing u:oon_"it~l'ie 'lfdefe_nda'nts..to_: execute the sale deed of s't1it'--~.Vzsched'-ule his = 0' favour. Pursuant to the said,._.n:ovt.i_ce.,v defe'nd.aAnts5 did not execute the sale deed.""--fn..the on 14.11.2009 I certain third parties visi'ted' the"pr:'onerftie.s:'»'under the guise of purchase pflaintiff fiied the suit for injunction __ sefe'fi<ing__f"to"2:est_Ifain' defendants 1 to 3 from selfing thesuilt sched.u'le4";'3ropVerty in favour of third parties. the "sai._d.....Droceedings, defendants 1 to 3 who are"fath.er'»and~s_on and also the owner and alleged power o'f..attorneS{'--:_'holder, have filed an application seeking rejectiontofv the plaint filed under Order 7 Rule 13. CPC on "..f_=the0'g.rou'nd that 3'" defendant being the absolute owner of ' thesuit schedule property has not given power of attorney ""'\ to 13' defendant to seii the suit scheduie property in favour of anybody much iess in favour of piaintiff. It is the case of the 3"' defendant herein that the power of attorneysaid to have been executed in favour of his son, managing the suit schedule property and to.do:"_'acts.;:'~dieedsf and things as are necessary for"ioo:i§i'ng'<_after:_' ihisaii property and it is his case thgatytheéépoiwer ofgattorruey":sia'id'V*ag to have been executed by the~.1$'rdefe'ndant in favour of 2"" defendant». is on for the reason that under the power by him to his son, the i'figVgd'efehdarit.;': th'ere~?.'was..V.no right to further execute an\,riiAr§owVer::'of>attorney.'delegating power in favour of third 'party andVi"t..'gi5:.<a--i.s"othis contention that assuming for agrnornent thepiaintiff has secured any right under atZtheviyviagreernjent of saie executed in his favour, what is open "to_"h__in9i fiV.ie»*'a suit for specific relief and not a suit for perrnane'nt-injunction and he also relied on the provisions vr'5_.eC.ti'€ii.1 41(h) of the Specific Relief Act which reads as "*1 i' . under':
"S.41(h): When equaliy efficacious relief can___ certainly be obtained by any other usual mode' of proceeding except in case of breach." -
Since the piaintiff having failed to seek performance of the agreement, theguestien'"of'*.fi_i;vinVg'~a'_'suit C"
seeking permanent injunction does, n<:-_jt'ra*rise.._ 'The {:a'se.'o.fj the petitioners herein is that'fVti1.e said.a:ppli'ca,tio»n~c.amie to be rejected by the Court be|ow___by..irr;pugned«orderiwhich is assailed by them in
6. In this:'p,roceedi"n.g:;:: dzuliyfflsewed on the contesting in the Court "7. firiefairdf the"'..'cou'ra«sieiV.' for the petitioners and 15* respondent. "
V :i:ia.rties before the Court also made available the_lp'ower'V'o'f_ attorney said to have been executed by the 'a_3'd defendant in favour of 15' defendant based on which the A 'fdefendant is said to have executed another power of attorney in favour of the 2"" defendant in the original suit. Vi As admitted by the plaintiff an agreement of sale is executed by the said 2"" defendant in his favour for s'aie of the suit schedule property. On perusai of attorney, dated 25.9.1996, executed by 3ifiydie:rew[jt:ieVht% tr favour of his 15' defendant, no right schedule property. The 15" defendant:i's_.given_'i_the look after the suit schedule the things that are necessary said property from time to if of attorney does not give. to execute further power a°'ttio._rneyfj'.--in"favou-igr of third parties giving them right toVV'i's«'t:E'«..__:t:'l*ie>'sui'i:..._sch.edule property. It is seen that basedgéon the of attorney, 15' defendant haspyexecuteci'*t.h_e"poi}ver of attorney in favour of 2""
i»vh~Qvin turn has executed the agreement of sale A"i'n_ 'fa_v,ouvr7o,f pl_'ai'ntiff. Assuming for a moment, that the said"'iagr.e'einAe"nt of sale is valid, the option avaiiabie for the «'"4"'--«Jpi.aintiff"i--*is to file a suit for larger relief of specific ,._'peVrfo-i'mance and in the said suit to seek the incidental
-»reiief of permanent injunction. The plaintiff instead of 'Ni enforcing the agreement of sale, is trying to file a suit seeking consequential relief only foregoing the maid'-ryell.ef of specific performance against the defendants_,«--:.:A.."if
9. As rightly contended by the 2%". defen«da:ht,_ such suit is not maintainable and the is reqtli'red rejected at the first instance."v.ih».lsuppo'rt he it has also relied upon the deycislonfjérendered"by*the Apex Court in the matterhhéhhof' vs. T.V.
SATYAPAL, re_pcl.g§e:d A'I:'1f{~V:f(g;§,tv) and also the judgment in the matter of HANUM»'3lP'P.4\m"hl\lt3;, v«lo"r§;ns Cl-IIKKANNAIAH AND oTHERh;s,A Karnataka, 3993 and E.3AYARAM.._ghhANor_V'ANQ%HER vs, LAKSHIMI ALIAS BHAt;YAjtA.i§sHMI'«.ArNp ANOTHER, reported in 2005 (4) perusal of the order and also the aforesaid it is clearly seen that the ratio laid down by the rafore'.said decisions squarely apply to the facts and _,,circumstances of this case and it is seen that the Court '"""\ below is wrongly guided to presume that the suit filed by the plaintiff for the relief of permanent injunctVi:p.n'~.jAs maintainable for the reason that the cause _ not ripened for the plaintiff to seekfhié _--re'lie'i:'of'V's:pecificV performance and hence, he permanent injunction. Or:':__v"*t.he Vtfacie . _ofJ Afacts.. hand circumstances of the case finding :Couirt below is not acceptable. Tii--er"efoiét.e,{_the"<o':rd'erpassed by the Court below in rejecting"t'h.e::'applyicationVj:H.!43i'A.3 filed under Order 7 Rule. Consequently, the said allowed and the plaint will have to be
11. Accordintjl'y,. the}. petition is allowed. Conse'q'u«ently":,_j}*E.{§u3 filed A' by"---t-he petitioners herein under Order is allowed and the 'rejected without any order as to sd'/'='%\ IUDGE iisj/9 list it _ r