Karnataka High Court
A Nagaraja vs B K Ravi on 29 December, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCELLANEOUS FIRST APPEAL NO.8737 OF 2022 (CPC)
BETWEEN:
A NAGARAJA
S/O VENKATARANGAPPA
AGED 67 YEARS
R/AT NO.27/14 1ST CROSS
OBALAPPA GARDEN
TATA SILK FARM
BENGALURU-560070
...APPELLANT
(BY SRI. MANIAN K B S, ADVOCATE)
AND
B K RAVI
S/O B K KESHAVA MURTHY
AGED ABOUT 56 YEARS
R/A NO.34 ARUNODAYA
1ST FLOOR
6TH CROSS
THYAGARAJA NAGARA
BENGALURU-560028.
...RESPONDENT
(BY SRI.SHARATH S GOWDA, ADVOCATE)
THIS MFA FILED U/O.43 RULE 1(r) R/W SEC.151 OF
CPC, SET ASIDE THE ORDER DT.22.12.2022 PASSED ON
IA NO.1 IN O.S.NO.26365/2022 ON THE FILE OF THE
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VACATION BENCH OF THE 33RD ADDITIONAL CITY CIVIL
JUDGE, BENGALURU, (CCH-34).
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
The captioned miscellaneous first appeal is filed by the unsuccessful plaintiffs being aggrieved by the order passed by the vacation Court wherein the application filed by the plaintiff under Order 39 Rule 1 and 2 for injunction is rejected by the vacation court.
2. Learned counsel for the appellant-plaintiff reiterating the grounds urged in the appeal memo has strenuously argued and placed reliance on the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.21920/2010 and has also placed reliance on the interim order passed by the Hon'ble Apex Court in SLP No.26705/2021. The learned counsel has also placed reliance on the memorandum of declaration-cum- ratification deed entered into by the society with the original owners under whom defendant is asserting 3 right. Placing reliance on the said agreement he would contend the dehors the judgment rendered by the Hon'ble Apex Court in 1995 on account of ratification by the land owners which is a subsequent event, a valid right and title is created in favour of BHEL. Learned counsel also places reliance on the interim order granted by this Court in RFA No.2196/2017. Relying on these significant details, he would contend that the Vacation Court erred in not exercising judicial discretion and the same has caused immense prejudice and injury to the plaintiff's right over the property in question. Referring to several judgments, he would contend that in a bare suit for injunction, it is the bounden duty of the Courts to examine the valuable rights of the parties and referring to prima facie materials, the Courts are always bound to grant some protection to the litigants who have approached the Court. Therefore, the vacation Court by declining to entertain the application only on the ground that complex issues are involved has not 4 discharged its duty in examining the claim of the plaintiff on an application filed under Order 39 Rule 1 and 2 of CPC. Therefore, he would contend that this is a fit case where some protection needs to be given to the plaintiff.
3. Learned counsel for the defendants repelling the contentions raised by the learned counsel appearing for the plaintiff has also countered his stand and argued by placing reliance on judgment rendered by the co- ordinate Bench of this Court in MFA No.7776/2015. Taking this Court to the findings and observation made by the Co-ordinate Bench, he would point out that the ratification deed was dealt by this Court in the above cited appeal and the Co-Ordinate Bench has recorded a categorical finding that the ratification deed dated 02.03.2000 executed by the owners does not create any right in favour of the society. Referring to the observations made by the co-ordinate Bench of this Court in MFA.No.7776/2015, he would point out that acquisition proceedings were quashed by the Hon'ble 5 Apex Court and therefore, the society will not get any transferable title based on the unregistered ratification deed. He would place reliance on the judgment rendered by the Co-ordinate Bench of this Court in MFA No.6158/2019. The conclusions rendered by the Co- ordinate Bench in subsequent decisions is also in same vein. Learned counsel for the defendant has also placed reliance on the judgment rendered by the co-ordinate bench of this Court in MFA No.722/2021. These three judgments are countered by the learned counsel for the plaintiff by placing reliance on the interim order granted by the Hon'ble Apex Court where in the SLP preferred by the land owners, the Hon'ble Apex Court has directed the parties to maintain status quo. On these set of grounds, he would contend that order under challenge would not warrant any interference at the hands of this Court.
4. Heard the learned counsels for the appellant- Plaintiff and respondent-defendant. The case on hand 6 has got chequered history as both the parties are at logger heads and have placed reliance on conflicting judgments. Therefore in this background if the order under challenge is examined, then I am of the view that the vacation Court was justified in declining to grant any protection. The vacation Court did draw an adverse inference against the plaintiff for not pressing the application which was already pending before the Court which was filed under Order 39 Rule 1 and 2 of CPC. These observations made by the vacation Court appears to be reasonable. But at the same time this Court also cannot ignore the factual matrix which led to filing of an application before the vacation Court. This Court would find some force in submission made by the learned counsel appearing for the plaintiff. The present application was filed as it appears defendants commenced with construction during winter vacation. However, the vacation Court has not ventured into examining the claim of parties while declining to grant 7 interim injunction. The matter on hand requires detailed consideration. The claim of the plaintiff cannot be out rightly rejected at threshold. Equally an injunction cannot be casually granted.
5. As rightly pointed out by the learned counsel for the defendants the plaintiff has filed the present suit seeking perpetual injunction and the possessory right is not sought based on declaration-cum-ratification deed executed by the land owners in favour of REMCO(BHEL) Co-Operative House Building Society Limited. The co- Ordinate Bench of this Court in batch of appeals in MFA. 6158/2019 and connected matters had an occasion to examine the validity of declaration-cum-ratification deed. The Co-ordination Bench of this Court placing reliance on the order passed in MFA.8988/2017 declined to place reliance on the ratification deed. The defendants have also placed reliance on the order passed by the Co-Ordinate Bench of this Court in MFA.7776/2015. The Co-ordinate Bench in the above 8 cited judgment at Paragraph 21 of the order has categorically held that question of transferring of title back to BHEL by way of unregistered ratification deed would not arise. The Co-ordinate Bench further held that neither the Society nor the persons claiming under BHEL can place reliance on the ratification deed to establish restoration of title and possession in favour of BHEL. Similar observations are also found in MFA.722/2021. The defendants have also placed reliance on the communication dated 9.10.2002 issued by BHEL indicating that the possession of land is delivered to the land owners. As against these voluminous documents, the plaintiff is also placing reliance on the interim order passed by the Division Bench of this Court in RFA.2196/2017. He has also placed reliance on judgment rendered in WP.No.21920/2010 to counter the observations made by this Court in regard to the declaration-cum-ratification dated 10.11.2000.
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6. The matter is listed before the Vacation Bench. Counsel for the plaintiff citing urgency has moved this matter. Both the counsel are placing reliance on several orders which are reflected in the preceding paragraphs. These orders were not placed on record. On going through orders cited by both the parties, this Court is of the considered view that the matter requires detailed hearing.
7. Having regard to the background of litigation between the parties, though this Court is not inclined to interfere with the order under challenge, however, it is made clear that the Court before whom the suit is seized shall take up the application filed by the plaintiff under Order 39 Rule 1 and 2 of CPC and on priority basis shall deal with the application after hearing both the parties. Any observations made by the vacation Court or by this Court shall not influence the learned Judge while deciding the application. After affording an opportunity to both the counsel, the learned Judge shall look into the 10 orders passed by this Court in previous round of the litigations and thereafter proceed to decide the application in accordance with law. It is open for the learned counsel for the plaintiff to move an advancement application and if such an application is moved immediately after vacation, the learned judge shall fix a date before 10.01.2023 and after notifying both the counsels shall decide the application in accordance with law and shall hear and dispose of the application within two weeks from the date of receipt of copy of this order.
8. Accordingly, appeal is disposed of.
9. All contentions are kept open.
10. In view of disposal of the matter, pending IAs, if any, also stand disposed of.
Sd/-
JUDGE RKA