Karnataka High Court
Mr E Vijay Kumar vs Mr Munni Naga Reddy on 23 November, 2018
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.3090 OF 2012(CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.3241 OF 2012(CPC)
IN M.F.A. NO.3090/2012:
BETWEEN:
1. MR. E. VIJAY KUMAR
S/O KITCHAMA NAIDU
AGED ABOUT 46 YEARS
RESIDING AT NO.2/114
CANARA BANK COLONY
UTTARAHALLI, BANGALORE - 61.
2. MR. C. RAJANI KUMAR
S/O C. NAGARAKA NAIDU
AGED ABOUT 35 YEARS
RESIDING AT NO.5, 1ST MAIN
1ST CROSS, VIVEKANANDANAGAR
BANASHANKARI III STAGE
BANGALORE - 48.
3. MR. PARTASARTHY
S/O L. RAMACHANDRA NAIDU
AGED ABOUT 37 YEARS
RESIDING AT NO.20, 9TH "A" CROSS
BALAJI NAGAR, ITTAMADU
BANASHANKARI III STAGE
BANGALORE - 48.
2
4. MR. NARAYANASETTY SRIDHAR
AGED ABOUT 41 YEARS
S/O N.S. KRISHNA CHETTY
RESIDING AT NO. 1-91
PUNGANOOR ROAD
KALLUR VILLAGE POST
CHITTOR DISTRICT.
... APPELLANTS
(BY SRI. ANANT MANDGI, ADVOCATE FOR
MANDGI ASSOSIATES, ADVOCATE)
AND:
1. MR. MUNNI NAGA REDDY
S/O LATE MUNISWAMY REDDY
AGED: MAJOR
RESIDING AT NO.45, 3RD "B" MAIN
4TH CROSS, 3RD BLOCK
KALYAN NAGAR, BANGALORE - 43.
2. MR. Y. RAJASHEKAR REDDY
S/O YELLAPPA REDDY
AGED ABOUT 47 YEARS
RESIDING AT NO. 214/1
13TH CROSS, 2ND BLOCK
BANGALORE - 34.
3. MR. B. RANGASWAMY
S/O LATE BETTAPPA GOWDA
AGED ABOUT 68 YEARS
RESIDING AT TEJASVI BHAVANA
B.M. ROAD, HASSAN - 577 138.
4. MR. E. KRISHNAPPA
S/O LATE ERAIAH
AGED ABOUT 48 YEARS
RESIDING AT NO.1064, 8TH CROSS
H.M.T LAYOUT, VIDYARANYAPURA
BANGALORE - 97.
5. DR. UDAYA BALLAL
S/O H. NARAYANA BALLAL
3
AGED ABOUT 53 YEARS.
6. SMT. ARATHI BALLAL
W/O DR. UDAYA BALLAL
AGED ABOUT 50 YEARS.
BOTH THE ABOVE MENTIONED
ARE RESIDING OF FLAT NO. 306
BRIGADE CLASSIC, ARMUGAM CIRCLE
BASAVANAGUDI, BANGALORE - 4.
... RESPONDENTS
(BY SRI. T. SESHAGIRI RAO, ADVOCATE FOR C/R-1 AND R-2;
SRI. REGO AND REGO, ADVOCATE FOR R-4; R-3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
7.3.2012 PASSED ON IA NO.1 IN O.S.NO.7981 OF 2011 ON THE
FILE OF XVIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
BANGALORE, ALLOWING IA NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 CPC FOR T.I.
IN M.F.A. NO. 3241/2012:
BETWEEN:
1. DR. UDAYA BALLAL
AGED ABOUT 53 YEARS
S/O H. NARAYANA BALLALA.
2. MRS. ARATHI BALLAL
AGED ABOUT 51 YEARS,
WIFE OF DR. UDAYA BALLAL.
BOTH PRESENTLY RESIDING AT
FLAT NO. 306, BRIGADE CLASSIC
ARMUGAM CIRCLE, BASAVANAGUDI
BANGALORE - 560 004.
APPELLANTS NOs. 1 AND 2
REPRESENTED HEREIN BY
4
THEIR DAUGHTER AND SPECIAL
POWER OF ATTORNEY HOLDER.
... APPELLANTS
(BY SRI. ARUN REGO, ADVOCATE FOR
REGO AND REGO, ADVOCATE)
AND:
1. MR. MUNI NAGA REDDY
MAJOR
SON OF LATE MUNISWAMY REDDY
RESIDING AT NO. 45
3RD "B" MAIN, 4TH CROSS
3RD BLOCK, KALYAN NAGAR
BANGALORE - 560 043.
2. MR. Y. RAJASHEKAR REDDY
AGED ABOUT 48 YEARS
SON OF YELLAPPA REDY
RESIDING AT NO. 214/1
13TH CROSS, 2ND BLOCK
BANGALORE - 560 034.
3. MR. B. RANGASWAMY
AGED ABOUT 69 YEARS
SON OF LATE BETTAPA GOWDA
RESIDING AT JEJASVI BHAVANA
B.M. ROAD, HASSAN - 576 201.
4. MR. E. KRISHNAPPA
AGED ABOUT 49 YEARS
SON OF LATE ERAIAH
RESIDING AT NO.1064, 8TH CROSS
H.M.T. LAYOUT, VIDYARANYAPURAM
BANGALORE - 560 097.
5. MR. E. VIJAY KUMAR
AGED ABOUT 46 YEARS
SON OF KITCHAMA NAIDU
RESIDING AT NO.2/114
CANARA BANK COLONY,
5
UTTARAHALLI
BANGALORE - 560 061.
6. MR. C. RAJANI KUMAR
AGED ABOUT 36 YEARS
SON OF C. NAGARAKA NAIDU
RESIDING AT NO. 5, 1ST MAIN
1ST CROSS, VIVEKANANDANAGAR
BANASHANKARI III STAGE
BANGALORE - 560 070.
7. MR. PARTHASARTHY
AGED ABOUT 38 YEARS
SON OF L. RAMACHANDRA NAIDU
RESIDING AT NO. 20, 9TH "A" CROSS
BALAJI NAGAR, ITTAMADU
BANASHANKARI III STAGE
BANGALORE - 560 070.
8. MR. NARAYANASHETTY SRIDHAR
AGED ABOUT 42 YEARS
SON OF N.S. KRISHNA CHETTY
RESIDING AT NO. 1-91
PUNGANOOR ROAD
KALLUR VILLAGE POST
CHITTOR DISTRICT - 517 113.
... RESPONDENTS
(BY SRI. T. SHESHAGIRI RAO, ADVOCATE FOR C/R-1 TO 2;
SRI. D.R. RAVISHANKAR, ADVOCATE FOR R-4;
R-3, R-5, R-6, R-7, R-8 ARE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
7.3.2012 PASSED ON IA NO.1 IN O.S.NO.7981 OF 2011 ON THE
FILE OF XLIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
BANGALORE, ALLOWING IA NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 CPC FOR T.I.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
The defendants in O.S.No.7981/2011 on the file of the XLIII Additional City Civil and Sessions Judge, Bengaluru (For short, 'the learned Civil Court') have filed these appeals. The learned Civil Court by the impugned order dated 7.3.2012 has allowed I.A.1 filed by the plaintiffs restraining defendant Nos.3 to 8 from altering the nature of the properties described in the application as Schedule B and C Properties. The appeal in MFA 3090/2012 is by defendant Nos.5 to 8, while the appeal in MFA No.3241/2012 is by defendant Nos.3 and
4.
2. The parties to these proceedings are referred to as they are arraigned in the suit.
3. The plaintiffs commenced the suit in O.S.No.7981/2011 inter alia for declaration that the two 7 sale deeds viz., the sale deed dated 19.9.2009 executed by the defendant no.2 (as power of attorney holder of defendant No.1) in favour of the defendant Nos.3 and 4 for the Schedule 'B' Property and the sale deed dated 10.6.2000 and the Rectification Deed dated 13.8.2010, in favour of defendant Nos.5 to 8 are null and void and not binding on the plaintiffs.
4. The plaintiffs predicated their claim to the Schedule B and C Properties on the assertion that, initially, the plaintiffs and the defendant No.2 acquired absolute right, title and interest to the Schedule A Property under a power of attorney executed by defendant No.1 (the undisputed owner of the schedule - B and C properties). The defendant No.1 had executed this power of attorney in favour of the plaintiffs and defendant No.2 to develop the Schedule A Property and they had developed such property, including Schedule B and C Properties, into a layout. This power of attorney was followed by a Memorandum of Understanding dated 8 27.2.2009 executed amongst the plaintiffs and defendant No.2 settling their respective claims over the Schedule - B and C Properties. The plaintiff No.2 acquired absolute rights to the Schedule - B and C Properties in terms of this Memorandum of Understanding. However, acting contrary to the terms of the Memorandum of Understanding supra and in detriment to the plaintiff's right to these properties, the defendant No.2, acting in cohorts with all the defendants, created a substitute power of attorney dated 12.5.2009 and executed the impugned sale deeds in favour of the defendants No.3 to 8 as stated supra.
5. The plaintiffs, along with the plaint, filed an application under Order XXXIX Rule 1 and 2 of CPC seeking temporary injunction against the defendants from changing or altering the nature of the suit schedule property pending disposal of the suit. The defendants resisted this application. The defendants specifically contended that the documents set up by the 9 plaintiffs did not confer any interest in the Schedule B and C Properties much less any right to institute and sustain a suit or an application for temporary injunction during the pendency of such suit.
6. However, the learned Civil Court allowed the application and restrained the defendant Nos.3 to 8, the subsisting title holders as of the date of the application, from altering the nature of the schedule B and C properties. The learned Civil Court was persuaded to allow the application for the reasons inter alia that it was not in dispute that the defendant No.1, the undisputed owner of the schedule properties, had executed power of attorney in favour of the plaintiffs and defendant No.2 for development of the Schedule A Property including the Schedule B and C Properties. The plaintiffs and defendant No.2 acting in performance of such authority, had developed schedule - A properties into a layout and in fact, certain parts of the developed property were transferred by them acting on behalf of 10 the defendant No.1. As such, the plaintiffs were able to make out not only prima facie right in the property but also prima facie case for grant of injunction. The learned Civil Court also concluded that the cancellation of such power of attorney in favour of the plaintiff and defendant No.2 were not established though it was contended on behalf of the defendants that the subsequent power of attorney in favour of defendant No.2 was executed upon the cancellation of such earlier power of attorney.
7. This Court on 18.4.2012, while admitting the appeal, granted interim stay of the impugned order. It is undisputed that during the pendency of this appeal and after this interim order of stay, the defendants have developed the Schedule B and C Property and created third party rights. In fact, it is submitted that defendant Nos. 5 to 8 have developed Schedule 'C' property into a Multi-dwelling residential apartment building and transferred units therein to different third 11 party purchasers. The Defendant Nos.3 and 4 have developed Schedule - B' property into a hospital and they are managing such hospital.
8. The plaintiffs are asserting right to the schedule 'B' and 'C' properties under power of attorney and a Memorandum of Understanding, which ordinarily cannot be construed as title conferring documents as against the sale deeds executed by the undisputed original owner through his power of attorney holder. As such, in the facts and circumstances of the case, it cannot reasonably be concluded that the plaintiffs have made out a case for continuation of the impugned order. The impugned order, rendered without considering this redoubtable proposition in law in the facts and circumstances of the case, would be an irregular exercise of discretion available under Order XXXIX Rules 1 and 2 of CPC.. Further, in view of the undisputed subsequent events during the pendency of this appeal, this Court is of the considered opinion there 12 is no basis for continuing the impugned order which restrains the appellants - defendant from altering the nature of the properties described in the application as Schedule B and C properties.
Accordingly, the appeal is allowed. The impugned order is set aside. The learned counsel for the plaintiff - respondent contended that any observation made by this court during the course of this order could prejudice the final adjudication of the suit. It is trite that any observations made during the course of this order is only for the purposes of deciding the appeal and cannot be of any significance insofar as the final adjudication of the suit.
SD/-
JUDGE nv