Karnataka High Court
Sri Narayanaswamy vs Sri K Venkateshwara Rao on 1 August, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.21554 OF 2021 (GM-CPC)
BETWEEN:
1. SRI NARAYANASWAMY
S/O MUNIYAPPA,
AGED ABOUT 55 YEARS
2. SRI CHIKKANARAYANAPPA
S/O MUNIYAPPA,
AGED ABOUT 50 YEARS
BOTH ARE R/AT KANNAMANGALA PALYA VILLAGE,
KASABA HOBLI, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
...PETITIONERS
(BY SRI D.R.RAVISHANKAR, SR.ADVOCATE FOR
SRI CHANDRASHEKAR SWAMY K B, ADVOCATE)
AND:
SRI K. VENKATESHWARA RAO
S/O K. GOPALAKRISHNA RAO,
AGED ABOUT 55 YEARS,
R/AT HOUSE NO.58/1, 1ST FLOOR,
2ND CROSS, LAKSHMI ROAD,
SHANTHINAGAR, BANGALORE-560 027
...RESPONDENT
(BY SRI S.M.CHANDRASHEKAR, SR.ADVOCATE FOR
SRI CHANDRASHEKAR PATIL, ADVOCATE FOR C/R)
2
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DTD 10.11.2021 VIDE ANNEXURE-M PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI IN
M.A.NO.21/2020, ON IA NO.4 FILED UNDER ORDER 39 RULE 1 AND
2 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE IN
O.S.NO.247/2016 FILED BY THE RESPONDENT BEFORE THE
PRINCIPAL CIVIL JUDGE AND JMFC AT DEVANAHALLI WHICH WAS
DISMISSED BY THE TRIAL COURT.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.07.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the defendants feeling aggrieved by the order passed by the Appellate Court in M.A.No.21/2020 in setting aside the order of the learned Judge and granting interim injunction, thereby restraining the petitioners from interfering with the respondent/plaintiff peaceful possession and enjoyment over the suit schedule property.
2. The facts leading to the case are as under:
The respondent/plaintiff instituted a bare suit for injunction in O.S.No.247/2016 alleging that the 3 petitioners/defendants are causing interference with peaceful possession and enjoyment of respondent over item Nos.1 and 2 of the suit schedule properties measuring 2 acres. The respondent/plaintiff claims that suit schedule property is his self acquired property. The respondent/plaintiff is asserting title on the basis of sale deed dated 03.04.1996. The respondent/plaintiff claims that pursuant to purchase, possession was delivered and he is in exclusive possession of the suit schedule property as absolute owner. The respondent/plaintiff also contended that pursuant to alienation, there is change in katha and his name is duly mutated in terms of acquisition of right under registered sale deed dated 03.04.1996.
3. The respondent/plaintiff has further contended that the present petitioners/defendants filed a suit for declaration and injunction in O.S.No.465/2016 and also sought for redemption of unregistered mortgage deed dated 03.04.1996. 4
It is stated that in the said suit that no injunction is granted in favour of the petitioners/defendants.
4. The learned Judge having examined the prima facie material declined to grant interim injunction and rejected the application. The Appellate Court having examined the prima facie material more particularly the sale deeds dated 03.04.1996 executed by the present petitioners in favour of the respondent/plaintiff has come to conclusion that the respondent/plaintiff has succeeded in making out a prima facie case in his favour. While reversing the order of the learned Judge, the Appellate Court was of the view that the Trial Court has not considered the prima facie material placed by the respondent/plaintiff to substantiate the interim relief sought under I.A.No.4. It is this order which is under challenge.
5. Learned Senior Counsel appearing for the petitioners/defendants reiterating the grounds urged in the writ petition would contend that the earlier application was 5 disposed of by the Trial Court directing the parties to maintain status quo and therefore, a strong objection is raised in regard to maintainability of I.A.No.4 seeking similar reliefs. He would submit that if the status quo order dated 26.08.2016 is in operation which has attained finality on account of there being no challenge to the said order, a similar application which is filed in I.A.No.4 is not at all entertainable. Learned Senior Counsel would further point out that the present petitioners have availed loan of Rs.2,00,000/- from the respondent/plaintiff and the respondent/plaintiff taking advantage of illiteracy has got executed two registered sale deeds instead of simple mortgage deed by depositing title deeds. Therefore, he would contend that the respondent has indulged in playing fraud on the petitioners.
6. Placing reliance on the unregistered document dated 03.04.1996, he would contend that the respondent/plaintiff has agreed for redemption of mortgage and therefore, the petitioners have rightly filed a suit for 6 declaration and injunction seeking redemption of mortgage in O.S.No.465/2016. Therefore, he would contend that the learned Judge having rightly appreciated the rebuttal prima facie material was not inclined to grant injunction in favour of the respondent/plaintiff. Therefore, he would contend that the order passed by the Appellate Court is palpably erroneous and would warrant interference at the hands of this Court.
7. To buttress his arguments, learned Senior Counsel appearing for the petitioners/defendants has relied on the judgment rendered by the Hon'ble Apex Court in the case of Erach Boman Khavar vs. Tukaram Shridhar Bhat and Another1. Referring to the dictum laid down by the Hon'ble Apex Court in the judgment cited supra, he would contend that the order of status quo granted by the Trial Court having attained finality would operate as res judicata and therefore, he would contend that the order passed by the learned Judge on I.A.No.4 is not at all sustainable and therefore, would 1 (2013) 15 SCC 655 7 warrant interference at the hands of this Court. Learned Senior Counsel would further contend that the Appellate Court erred in not taking note of the document dated 03.04.1996 which is styled as 'mortgage deed'.
8. The grievance of the petitioners before this Court is that the Appellate Court erred in declining to look into this document on the ground that it is unregistered. He would argue and contend that the said document dated 03.04.1996 which is styled as 'unregistered mortgage deed' is a contemporaneous document which does not require registration and therefore, has to be read along with the nominal sale deeds executed on 03.04.1996. Therefore, he would contend that it is precisely on this ground, the Appellate Court erred in interfering with the order of the learned Judge.
9. Per contra, learned Senior Counsel appearing for the respondent/plaintiff repelling the contentions canvassed by the learned counsel appearing for the petitioners would 8 straight away place reliance on the registered sale deeds dated 03.04.1996. He would contend that the registered sale deeds clearly indicate the intention of vendors in transferring the suit schedule properties for valuable sale consideration. He would further contend that the recitals under registered sale deeds indicating delivery of possession would bind the petitioner/defendants and therefore, any contra stand taken which is not in consonance with the covenants in the sale deeds cannot be looked into, more particularly while considering the relief of interim injunction. He would also counter the contention of the petitioners that the present application filed in I.A.No.4 is hit by the provisions of Section 11 of CPC.
10. Placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Arjun Singh vs. Mohindra Kumar and Ors.2, he would contend that the Hon'ble Apex Court was of the view that the scope of principles of res 2 AIR 1964 SC 993 9 judicata is not confined to what is contained in Section 11 but is of more general application. Referring to para 21 of the said judgment, he would contend that the earlier order passed on I.A.No.1 was in fact to preserve the property pending final adjudication. But, however, on account of subsequent developments, the respondent/plaintiff was compelled to file one more application in I.A.No.4 as there was threat of dispossession which also compelled the respondent/plaintiff to approach the jurisdictional police station to register the crime. Therefore, he would contend that the respondent/plaintiff on account of compelling reasons have come up with this application in I.A.No.4 seeking interim injunction. Therefore, he would contend that the principles enumerated under Section 11 of CPC has no application to the present application filed in I.A.No.4.
11. Referring to the principles laid down by the Rajasthan High Court in the case of Bhura vs. Addl. District 10 Judge, No.8, Jaipur City and Others3, he would contend that the order of temporary injunction is capable of being altered or varied on prima facie proof of new situation that may have emerged subsequently. Therefore, he would contend that the second application for issue of temporary injunction filed on account of change in circumstances is not hit by the principles of res judicata. On these set of defence, he would contend that the order passed by the Appellate Court is in accordance with law and therefore, would not warrant any interference at the hands of this Court.
12. Heard learned Senior Counsel appearing for the petitioners and learned counsel for the respondent.
13. The respondent/plaintiff is asserting title on the basis of two registered sale deeds dated 03.04.1996 executed by one Muniyappa who is none other than the father of defendants. The recitals in the sale deeds indicate that possession was parted and delivered to the purchasers. The 3 AIR 2004 RAJASTHAN 67 11 present petitioners/defendants, however, contend that plaintiff taking undue advantage of illiteracy has got executed two registered sale deeds though parties actually intended simple mortgage deed by depositing title deeds. The petitioners have further contended in the written statement that when they confronted the respondent/plaintiff, the respondent/plaintiff has admitted the fraudulent act and therefore, has agreed to execute unregistered agreement of redemption of mortgage deed in favour of the petitioners.
14. If these significant details are taken into consideration and the tenor of defence set up is meticulously examined, then this Court is of the view that the prima facie material relied on by the respondent/plaintiff has to be taken into consideration. At this stage, the defence set up by the present petitioners herein to the effect that respondent/plaintiff on the same day has executed unregistered agreement of redemption of mortgage deed cannot be examined. The said document has to be tested 12 during full fledged trial. Therefore, at the stage of deciding the application for temporary injunction, the Court is not required to examine the merits of the case in detail. What the Court has to examine is whether the plaintiff has a prima facie case and protection is necessary from the species of injuries and mischief or inconvenience that may likely arise from withholding injunction would be greater than what is likely to arise from granting it.
15. The contention of learned Senior Counsel appearing for the petitioners that there is already a status quo order operating against the parties by order dated 26.08.2016 and therefore, the respondents/plaintiffs cannot maintain a second application seeking similar relief and therefore, the prayer sought in the present application filed in I.A.No.4 is hit by principles of res judicata cannot be acceded to. Even if the order dated 26.08.2016 is looked into, this Court would find that the Court having referred to the prima facie material was 13 of the view that the plaintiff has got a case for trial and in this context, status quo order was passed.
16. The question that needs to be looked into is whether the status quo order would come to the aid of the plaintiff or defendants. The status quo order has in fact created a confusion and in all probability, the petitioners/defendants have tried to take advantage and in the process have tried to meddle with the property. In the present case, the order of status quo has to be read as an injunction against the petitioners/defendants. The learned Judge having found that prima facie case is in favour of the plaintiff, has ordered for status quo.
17. The prayer sought in I.A.No.4 is on account of subsequent acts done by the defendants and therefore, the application is filed in I.A.No.4 seeking temporary injunction against the petitioners/defendants. The Trial Court has rejected the application on the premise that there is already a 14 status quo order operating against the parties and the said order is not challenged by the plaintiff. This finding prima facie appears to be perverse. The question of plaintiff challenging the status quo order granted on earlier occasion may not arise in the present case on hand. Status quo order would in fact come to the aid of the plaintiff. The plaintiff can ventilate his grievances on account of highhandedness by the petitioners/defendants. It was at the instance of the plaintiff, status quo order is passed by holding that plaintiff has made out a prima facie case.
18. Now in the present application, the respondent/plaintiff has specifically averred that on 23.08.2020, the defendants along with 15 to 20 persons have tried to remove the structure over the property and destroyed the crops. This prayer sought by the plaintiff is not examined by the Trial Court. The Appellate Court has rightly dealt with the prima facie material. Having regard to the recitals in both the sale deeds, the Appellate Court was of the view that two 15 registered sale deeds clearly indicate delivery of possession in favour of the purchaser/plaintiff. The Appellate Court having referred to the RTC extracts for the year 2015-16 has also taken note of the fact that plaintiff name is duly mutated to the revenue records. The Appellate Court has also referred to the unregistered release deed dated 03.04.1996 written on a stamp paper of Rs.100/-. The Appellate Court exercising judicial discretion has reversed the order passed by the Trial Court and has granted injunction by allowing I.A.No.4.
19. Be that as it may. Based on the status quo order, plaintiff could have even initiated appropriate proceedings by invoking the provisions of Order 39 Rule 2A of CPC alleging disobedience of interim injunction order. Merely because the order is in the nature of status quo, the plaintiff to protect his rights has filed one more application. When property rights are involved, the Court cannot adopt hyper technical approach when there is a threat of dispossession. If plaintiff has produced title documents, the Court is bound to grant 16 protection. The Courts are also required to advert to the imminent threat to the plaintiff's rights. Therefore, the contention of learned Senior Counsel appearing for the petitioners that the second application seeking interim injunction is not maintainable cannot be acceded to. The plaintiffs are asserting right and title based on registered sale deeds dated 03.04.1996, while defendants are asserting that the sale deeds are concocted documents. The fact that petitioners are seriously disputing the due execution of sale deeds in itself amounts to interference. The Appellate Court has rightly exercised judicial discretion and has rightly reversed the order of the Trial Court which suffers from perversity. No prejudice is caused to the petitioners on account of grant of temporary injunction. But if Appellate Court had declined to grant injunction, that could have caused substantial injury to the plaintiff's right over the suit schedule property. Therefore, I am not inclined to interfere with the 17 order of the Appellate Court. No error is made out in the order under challenge.
20. Hence, I pass the following:
ORDER The writ petition being devoid of merits stands dismissed.
Sd/-
JUDGE CA