Karnataka High Court
Mr H J Siwani vs Dr R P Shankar on 16 January, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
M.F.A NO.1658 OF 2015 (CPC)
BETWEEN
1. Mr. H.J.SIWANI
AGED ABOUT 54 YEARS
S/O LATE J.K.SIWANI
2. MR.M.J.SIWANI
AGED ABOUT 52 YEARS
S/O LATE J.K. SIWANI
NO.14, CUNNINGHAM ROAD
BENGALURU-560 052.
...APPELLANTS
(BY SRI.ABHINAV R. ADV. FOR KUMAR & KUMAR , ADVOCATES)
AND
1. DR. R.P. SHANKAR
AGED ABOUT 70 YEARS
S/O LATE T.T. KURIEN
2. MRS. MARGARET MARY
AGED ABOUT 67 YEARS
W/O DR.R.P.SHANKAR
BOTH RESIDING AT "DAWN HOUSE"
NO.3, 13TH CROSS, VASANTHNAGAR,
BENGALURU-560 052.
ALSO HAVING THEIR OFFICE AT
'KAPPER' 3RD FLOOR,
2
'KALPATARU, NO.139,
INFANTRY ROAD,
BENGALURU-560 001.
3. M/S. CORPORATE LEISURE & PROPERTY
DEVELOPMENTS PRIVATE LTD.,
HAVING ITS OFFICE AT NO.108
GROUND FLOOR, OXFORD TOWERS
139, OLD AIRPORT ROAD
BENGALURU-560 008.
...RESPONDENTS
(BY SRI. H.S. DWARAKANATH ADVOCATE FOR R3)
THIS MFA IS FILED U/O.43 RULE (1) (R) OF THE CPC,
AGAINST THE ORDER DATED: 05.02.2015 PASSED ON IA
NO.1&2 IN O.S.NO.994/2012 ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, DISMISSING THE IA NO.1&2 FILED
U/O.39 RULE 1&2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the respondent.
2. After hearing and looking to the entire materials on record it is seen that the trial court has dismissed IAs 1 & 2/2015 filed under Order XXXIX Rules 1 & 2 of Code of Civil Procedure. IA 1/15 is filed claiming a remedy for restraining 3 the defendants from alienating the suit 'A' to 'C' schedule properties. In another IA sought for restraining them from putting up any construction over the suit schedule property.
3. A careful perusal of the factual matrix of this case, it reveals that, the plaintiff is fighting on the basis of a Memorandum of Agreement to sell executed on 04.10.2004 and also sought for declaration that the Power of Attorney and the registered sale deed executed in favour of defendant No.3 by defendant Nos.1 & 2 as not binding on the plaintiffs. Admittedly, the plaintiff has been prosecuting the suit on the basis of 2004 agreement and admittedly the sale deed has already been executed in favour of defendant No.3 and the title for the present alleged to have been crystallized with the defendant. In the above said circumstances, the plaintiffs rights have to be established during the course of trial. As on date, the mere agreement does not convey any right, title or interest over the property to the plaintiff. It is just and necessary to protect the rights of both the parties during the pendency of the suit. As the trial court has dismissed the 4 application, there is no need for this court to go in detail into the merits or demerits of the case as done by the trial court. It would suffice to say that Section 52 of the Transfer of Property Act, 1882 itself will take care of any alienation made by the respective parties to the suit during the pendency of the suit and binding nature of the decree on the purchaser of the property. However, in IA 2/2015, it is claimed that if any construction is made by the defendant No.3 on the suit schedule property what should happen to such construction during the pendency of the suit. Therefore, it is just and necessary to say that when the rights of the parties are yet to be adjudicated by the court whatever the change in the nature of the suit property and alienation everything should be subject to the decision of the trial court after adjudication of the rights of the parties. Under the above said circumstances, I am of the opinion this appeal can be disposed of with such observations.
4. On perusal of the orders of the trial court, the trial court has made certain observations touching the merits of 5 the case which was not warranted. Therefore, the trial court shall not look into those observations while disposing of the suit on merits. It should not venture upon to look into contents of the order impugned passed by it for any reason at the time of disposal of suit on merits. With these observations, the following order is passed:
5. The appeal is disposed of with a direction to the trial court to dispose of the suit on merits within eight months from the date of receipt of the copy of this order.
6. The counsel appearing for the parties are hereby directed to assist the court for disposal of the suit on merits.
7. It is made clear that whatever the improvement or changes made by the respondents herein during the pendency of the suit, if any, he shall not claim any equity and the same shall be subject to the final disposal of the suit.
With these observation the appeal is disposed of. 6 The applications, IAs 1 & 2/2015 does not survive for consideration and the same also stand disposed of.
Sd/-
JUDGE Akv/bvk