Karnataka High Court
M/S. Ramalingappa And Son vs Sri. Jayadev R on 17 January, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
M.F.A NO. 8207/2016 (CPC)
BETWEEN
1. M/S. RAMALINGAPPA & SON,
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS PLACE OF BUSINESS
AT NO. 48/1 & 49/2, SHOPS NO. 1 & 2,
2ND MAIN ROAD, 2ND CROSS,
APMC(RMC) YARD, YESHWANTHPUR,
BENGALURU - 560 022. REP. BY ITS
PARTNER. SRI. MOHAMMED RABBANI N. S.
2. SMT. RAZIYA BEGUM,
W/O LATE SYED BASHEER AHMED,
AGED ABOUT 50 YEARS,
3. SRI. SYED AMEEN,
S/O LATE SYED BASHEER AHMED,
AGED ABOUT 32 YEARS,
4. SMT. ASIYA BEGUM,
W/O LATE SYED NAZIR AHMED,
AGED ABOUT 49 YEARS,
5. SR. MOHAMMED RABBANI N. S.
S/O LATE SYED NAZIR AHMED,
AGED ABOUT 23 YEARS,
ALL THE APPELLANT NO. 2 TO 5
ARE CARRYING ON BUSINESS
AT NO.48/1 & 49/2, SHOPS
2
NO. 1 & 2, 2ND MAIN ROAD,
2ND CROSS, APMC (RMC) YARD,
YESHWANTHPUR,
BENGALURU - 560 022.
APPELLANT NO.2 TO 4 ARE
REP. BY THEIR SPECIAL POWER
OF ATTORNEY HOLDER
SRI. MOHAMMED RABBANI N. S ... APPELLANTS
(BY SRI BHADRINATH R. ADVOCATE)
AND
1. SRI. JAYADEV R.,
S/O B. RAMALINGAPPA,
AGED ABOUT 68 YEARS,
2. SRI. J. SANDEEP,
S/O R. JAYADEV,
AGED ABOUT 39 YEARS,
3. SRI. J. SATISH,
S/O R. JAYADEV,
AGED ABOUT 36 YEARS,
ALL THE RESPONDENTS NO. 1 TO 3
ARE R/AT NO. 48, 8TH CROSS,
III MAIN, GANESHA BLOCK,
MAHALAKSHMI LAYOUT,
BENGALURU - 560 086. ... RESPONDENTS
(BY SRI RAMESH CHANDRA, ADV. FOR
C/R-2 [CP. NO. 1478 & 1479/2016)
THIS MFA IS FILED U/O XLIII RULE 1(r) OF THE
CODE OF CIVIL PROCEDURE, AGAINST THE ORDER
DT.24.11.2016 PASSED ON I.A.NO.1, 2, 4 IN
O.S.NO.776/2015 ON THE FILE OF THE XL ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, BENGALURU,
DISMISSING I.A.NO.1 & 2 FILED U/O 39 RULES 1 & 2
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OF CPC AND PARTLY ALLOWING I.A.NO.4 FILED U/O 39
RULES 4 & 7 OF CPC AND THEREBY STATUS QUO
ORDER IS VACATED.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
For the sake of convenience, the ranks of the parties are referred to as per their ranks before the trial Court.
2. The plaintiffs have filed a suit for permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.
3. The suit schedule property is shop Nos.1 & 2 out of property bearing No.49/48-1, 2nd Cross, 2nd Main, APMC Yard, Yeshwanthpur, Bengaluru, with specific measurement. Admittedly, there are two shops. The plaintiffs claim injunction sofar as both the shops are concerned.
4. The defendants have entered appearance and submitted that the defendants are the absolute owner of the said suit schedule property. Earlier, there was a 4 Partnership Firm in the name and style of M/s. Ramalingappa & Son, for which, the defendants were also the partners. Subsequently, due to the dispute between the parties, it appears the defendants got themselves released from the Partnership Firm and there is no dispute that presently, the plaintiffs 2 to 5 are running the said Partnership Firm in the name and style of M/s.Ramalingappa and Sons. It is the contention of the plaintiffs that they have been in possession and enjoyment of both the shops and running their business in the said Partnership Firm. However, it is the contention of the defendants that the property belongs to the defendants and they have been in possession and enjoyment of the property. After release from the Partnership Firm, the plaintiffs have no right, title and interest over the suit schedule property either to be in possession of the property or for the purpose of running any business in the shop. After hearing both the parties, the trial Court has come to the conclusion that the plaintiffs have suppressed certain material facts with reference to the earlier proceedings before the Karnataka Appellate Tribunal as 5 well as in the Writ Petition before this Court in Writ Petition No.56873/2013 as the plaintiffs have suppressed the previous decisions against them. Therefore, the courts was of the opinion that the plaintiffs are not entitled for any discretionary remedy at the hands of the Court.
5. It is submitted by the counsel for the defendants that the plaintiffs suppressing the material facts, obtained an order of statusquo at the time of filing of the suit on the guise that the plaintiffs have dispossessed from one of the shops on 16.11.2011 and they are running the business in that particular shop. The defendants, who are in possession and enjoyment of the another shop for the present, are not allowing the plaintiffs to conduct any business in the said shop, under the guise of the statusquo order earlier granted by the trial Court.
6. It is also an admitted fact by the defendants that they made an application under Order 39 Rules 4 & 7 of CPC for vacating the order of statusquo granted in favour of the plaintiff and also for the restoration of the possession of the shop which was usurped by the plaintiffs 6 during the pendency of the suit. It is worth to note here the observation made by the trial Court sofar as this aspect is concerned. The trial Court has in fact came to the conclusion that the plaintiffs have forcibly dispossessed the second defendant and entered into occupation of shop No.2 by exertion. It is also observed by the trial Court that both the plaintiffs and the second defendant have produced certain documents and photographs to show that they are in possession and running their business in the suit Schedule shops separately. The trial Court unable to ascertain about the legality of the possession and exclusive possession of the plaintiffs over the entire property. Therefore, culminating its judgment by saying that by virtue of suppression of material facts and also in view of the confusion with regard to their exclusive possession over the suit schedule property, the Court has vacated the order of statusquo by allowing the application filed by the defendants under Order 39 Rule 4 of CPC and consequently dismissed the application filed by the plaintiff under Order 39 Rules 1 & 2 of CPC.
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7. It is also evident from the records that considering the above said materials on record, with regard to the disputed possession over the property, the defendants have to establish this particular aspect that during the pendency of the suit, the plaintiffs have dispossessed the defendants from one of the shop premises. The Court has said that the said factum has to be considered by the Court while dealing with the matter on merits of the case after considering the evidence of the parties. However, on perusal of the judgment of the trial Court, it reveals that the trial Court has made specific observation that the plaintiff has disposed the second defendant and entered into the occupation of shop No.2. Therefore, the question is whether the defendants are entitled for restoration of the said shop premises or not has to be considered by the Court during the course of evidence.
8. What emerges from the above said order of the trial Court is that the trial Court virtually accepted the possession of the plaintiffs in one shop and possession of 8 the defendants in another shop. The trial Court is of the opinion that the plaintiffs have forcibly dispossessed the second defendant and entered into the occupation of the shop premises by exertion are the matters of trial. So this clears out the aspect that the defendant No.2 has admitted the possession over one of the shops. But according to the defendant, it is an illegal possession obtained during the pendency of the suit. Therefore, in my opinion, though the trial Court has come to the conclusion that only on the ground of suppression of materials, plaintiffs are not entitled for any order, but unless the statusquo between the parties is continued till the disposal of the suit, it may leads to further unnecessary complication and encourage fight between the parties. It is to be noted that, the Statusquo order not only operate against the plaintiffs but also operates against the defendants. Therefore, in my opinion, the statusquo order as found by the trial Court with reference to the respective possession of the shop Nos.1 & 2 by the plaintiff and second defendant has to be maintained pending disposal of the suit or until further Orders of the trial Court. Ultimately, the Court has to 9 decide whether defendant No.2 is the absolute owner in possession and enjoyment of the shop premises and whether the defendants are entitled for any right, title and interest over any of the properties claimed and whether the plaintiffs are entitled to any possession of the property and whether the defendant No.2 has been illegally dispossessed by the plaintiffs, or whether the Court can order for restoration of the possession u/s.144 of the CPC. All these factors have to be considered by the trial Court after recording the evidence of the respective parties. Hence, I am of the opinion that though there are some lapses and lacunas on the part of the plaintiffs in suppressing the facts regarding previous litigation between the parties in their plaint, nevertheless, in view of the above said admission of the parties, it is just and necessary to direct both the parties to maintain statusquo till the disposal of the suit, keeping open all the contentions of the plaintiffs and defendants to be urged before the trial Court, the parties if necessary can also make additional pleadings and as well claim any relief if available under law.
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9. Admittedly, defendant No.2 is no more a partner in the Partnership Firm of the plaintiff. Hence, the defendant No.2 is at liberty to carry out any business of his choice in the shop premises which is in his possession for the present, but not in the name and style of M/s.Ramalingappa & Sons, by obtaining licence from the competent authority during the pendency of the suit.
10. The arrangement made by this Court is only tentative and temporary pending disposal of the suit and the trial Court without being influenced by any of the observation made herein, is directed to adjudicate the rights of the parties on merits and this arrangement is subject to the decision of the trial Court.
In view of the above said observation, the appeal is disposed of.
Sd/-
JUDGE PL*