Karnataka High Court
Sri Rocky Muthappa Rai vs Smt Anuradha Muthappa Rai on 23 July, 2021
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.No. 1891 OF 2021 c/w M.F.A.No.2401 OF 2021,
M.F.A.No.2471 OF 2021, M.F.A.No.2690 OF 2021 AND
M.F.A. No. 2704 OF 2021 (CPC)
IN M.F.A.No.1891/2021
BETWEEN:
1. SRI ROCKY MUTHAPPA RAI
AGED ABOUT 40 YEARS,
S/O LATE MUTHAPPA RAI N,
PERMANENT RESIDENT OF 7E/26-27 RAJAMAHAL
APARTMENT 8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASHIVANAGAR,
BENGALURU-560080.
2. RICKY MUTHAPPA RAI
AGED ABOUT 30 YEARS,
S/O LATE MUTHAPPA RAI N,
PERMANENT RESIDENT OF 7E/26-27 RAJAMAHAL
APARTMENT 8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASHIVANAGAR,
BENGALURU-560080.
...APPELLANTS
(BY SRI. A. RAVISHANKAR, ADVOCATE)
AND
1. SMT ANURADHA MUTHAPPA RAI,
AGED ABOUT 47 YEARS,
WIFE OF LATE MUTHAPPA RAI,
PRESENTLY RESIDING AT NO.14, I CROSS,
SHANTHIVAN LAYOUT, SHANKARANAGAR POST,
BENGALURU 560 082.
2
2. NAVILAHALLY PLANTATION
A PARTNERSHIP FIRM HAVING
ITS OFFICE AT NAVILAHALLI VILLAGE
K HOSAKOTEHOBLI, ALUR TALUK,
HASSAN DISTRICT.
REPRESENTED BY ITS PARTNER.
3. M R STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
1956, HAVING ITS REGISTERED OFFICE AT NO 135/A,
9TH MAIN, RMV EXTENSION,
SADASIVANAGAR,
BANGALORE 560 080.
4. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 135/A, 9TH MAIN,
RMV EXTENSION, SADASIVANAGAR,
BANGALORE 560080,
REPRESENTED BY ITS PARTNERS.
5. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE
AT NO 135/A, 9TH MAIN, RMV EXTENSION,
SADASIVANAGAR,
BANGALORE 560080,
REPRESENTED BY ITS PARTNERS.
6. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO 215,
XANADU, BIDADIHOBLI,
RAMANAGARA TALUK AND DISTRICT,
REPRESENTED BY ITS PARTNERS.
7. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 135/A, 9TH RMV EXTENSION,
SADASIVANAGAR, BANGALORE 560 080.
REPRESENTED BY ITS PARTNERS.
8. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO 135/A 9TH MAIN,
RMV EXTENSION SADASHIVANAGAR,
3
BENGALURU-560080
REPRESENTED BY PARTNERS.
9. APLHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABLILITY PARTNERSHIP, CREATED UNDER THE
LLP ACT, REGISTERED OFFICE AT
NO 135/A, 9TH MAIN ROAD, RMV EXTENSION
SADASHIVANAGAR, BENGALURU-560080
10 . M R VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO 348, 12/2,
GROUND FLOOR, 4TH MAIN, 16TH CROSS,
SADASHIVANAGAR, BENGALURU-560080.
REPRESENTED BY ITS PARTNERS
11 . BIDADI REALTY EVENTURES
A PARTNERSHIPFIRM HAVING ITS REGISTERED OFFICE AT
NO 135/A, 9TH MAIN ROAD, RMV EXTENSION
SADASHIVANAGAR, BENGALURU-560080
REPRESENTED BY ITS PARTNERS.
12 . 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO 210/2,
II FLOOR, ABOVE RENAULT SHOWROOM,
SADASHIVANAGAR, BENGALURU-560080.
REPRESENTED BY ITS PARTNERS.
13 . CANARA EDUCATION SOCIETY
NO 10/1, GROUND FLOOR, LAKASHMINARAYANA COMPLEX,
PALACE ROAD, BANGALORE 560052,
REPRESENTED BY ITS TRUSTEE, P ASHWINPAI.
14 . A PUSHPAJA SHETTY,
AGED 65 YEARS, WIFE OF JAGANNATHA SHETTY,
DOOOR NO 603, SLR MANSION, I BLOCK,
BASAVESHWARANAGAR,
BANGALORE 560 079.
15 . SANJAY C D
MAJOR, SON OF C H DEVRAJ,
NO 4, BESON ROAD, BANGALORE 560 046.
...RESPONDENTS
(BY SRI. B.V. ACHARYA, SR. COUNSEL APPEARING FOR
SRI. K.S. HARISH, ADVOCATE FOR C/R-1)
4
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 06.04.2021 PASSED ON I.A.NO.1 IN
O.S.NO.3046/2020 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.19, PARTLY
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND ETC.
IN M.F.A.No. 2401/2021
BETWEEN:
1. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO 135/A, 9TH MAIN,
RMV EXTENSION, SADASIVANAGAR,
BANGALORE 560080.
REPRESENTED BY ITS PARTNER
SRI RICKY MUTHAPPA RAI.
2. APLHA CONSOLIDATED PROJECTS (INDIA) LLP,
A LIMITED LIABILITY PARTNERSHIP, CREATED UNDER THE
LLP ACT, REGISTERED OFFICE AT NO 135/A, 9TH MAIN,
RMV EXTENSION, SADASIVANAGAR,
BANGALORE 560080,
REPRESENTED BY ITS PARTNER
SRI RICKY MUTHAPPA RAI.
...APPELLANTS
(BY SRI. A. RAVISHANKAR, ADVOCATE)
AND:
1. SMT ANURADHA MUTHAPPA RAI,
AGED ABOUT 47 YEARS,
WIFE OF LATE SRI MUTTHAPPA RAI,
PRESENTLY RESIDING AT NO 14, 1ST CROSS,
SHANTHIVAN LAYOUT, SHANKARANAGAR POST,
BENGALURU 560 082.
2. SRI. ROCKY MUTHAPPA RAI
AGED ABOUT 40 YEARS,
SON OF LATE MUTHAPPA RAI N,
5
PERMANENT RESIDENT OF 7E/26-27, RAJMAHAL
APARTMENT, 8TH CROSS, 9TH MAIN ROAD, RMV
EXTENSION, SADASIVANAGAR, BANGALORE 560080.
3. SRI. RICKY MUTHAPPA RAI
AGED ABOUT 30 YEARS,
SON OF LATE MUTHAPPA RAI N,
PERMANENT RESIDENT OF 7E/26-27, RAJMAHAL
APARTMENT, 8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASIVANAGAR,
BANGALORE 560 080.
4. NAVIAHALLY PLANTATION
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NAVILAHALLI VILLAGE,
K HOSAKOTEHOBLI, ALUR TALUK,
HASSAN DISTRICT,
REPRESENTED BY ITS PARTNERS.
5. M R STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
1956, HAVING ITS REGISTERED OFFICE AT NO 135/A,
9TH MAIN, RMV EXTENSION,
SADASIVANAGAR, BANGALORE 560080
6. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO 135/A, 9TH MAIN,
RMV EXTENSION, SADASIVANAGAR,
BANGALORE 560080.
REPRESENTED BY ITS PARTNERS
7. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 135/A, 9TH MAIN, RMV EXTENSION,
SADASIVANAGAR, BANGALORE 560 080.
REPRESENTED BY ITS PARTNERS
8. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO 215,
XANADU, BIDADIHOBLI,
RAMANAGARA TALUK AND DISTRICT
REPRESENTED BY ITS PARTNERS
6
9. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 135/A, 9TH MAIN, RMV EXTENSION,
SADASIVANAGAR, BANGALORE 560080
REPRESENTED BY ITS PARTNERS
10 . MR VENTURES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 348, 12/2, GROUND FLOOR, 4TH MAIN, 16TH CROSS,
SADASIVANAGAR, BANGALORE 560080
REPRESENTED BY ITS PARTNERS.
11 . BIDADI REALTY VENTURES
A PARTNERSHIP FIRM HAVING ITS REGISTERED
OFFICE AT NO 135/A, 9TH MAIN, RMV EXTENSION,
SADASIVANAGAR, BANGALORE 560080
REPRESENTED BY ITS PARTNERS
12 . 4 R BUILDERSF AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO 210/2, II FLOOR, ABOVE RENAULT SHOWROOM,
SADASIVANAGAR, BANGALORE 560080
REPRESENTED BY ITS PARTNERS
13 . CANARA EDUCATION SOCIETY
NO 10/1, GROUND FLOOR,
LAKASHMINARAYANA COMPLEX, PALACE ROAD,
BANGALORE 560052.
REPRESENTED BY ITS TRUSTEE P ASHWIN PAI.
14 . A PUSHPAJA SHETTY
AGED 65 YEARS, WIFE OF JAGANNATHA SHETTY, DOOR NO
603, SLR MANSION, I BLOCK, BASAVESHWARANAGAR,
BANGALORE 560079.
15 . SANJAY C D
MAJOR, SON OF C H DEVRAJ,
NO 4, BENSON ROAD,
BANGALORE 560 046.
...RESPONDNETS
(BY SRI. B.V. ACHARYA.SR.COUNSEL APPERING FOR
SRI. K.S. HARISH, ADVOCATE FOR C/R-1)
7
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 06.04.2021 PASSED ON I.A.NO.1 IN
OS.NO.3046/2020 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.19, PARTLY
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND ETC.
IN M.F.A.No. 2471/2021
BETWEEN:
1. NAVILAHALLY PLANTATION
A PARTNERSHIP FIRM HAVING ITS OFFICE AT
NAVILAHALLY VILLAGE, K HOSAKOTE HOBLI
ALUR TALUK, HASSAN DISTRICT
REPRESENTED BY ITS PARNTERS.
2. M R STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE
AT NO.135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BANGALORE-560080
REPRESENTED BY ITS AUTHORIZED SIGNATORY
3. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO.135/A,9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BANGALORE-560080
REPRESENTED BY ITS PARTNERS
4. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO.135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR
BENGALURU-560 080.
REPRESENTED BY ITS PARTNERS
5. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.215
XANADU, BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT
REPRESENTED BY ITS PARNTERS.
8
6. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR , BENGALURU-5600810.
REPRESENTED BY ITS PARTNERS
7. MR VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.348, 12/2
GROUND FLOOR, 4TH MAIN,16TH CROSS
SADASHIVANAGAR, BENGALURU-560080
REPRESENTED BY ITS PARTNERS.
8. BIDADI REALTY VENTURES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO.135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU-560 080.
REPRESENTED BY ITS PARTNERS
9. 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.210/2, II
FLOOR, ABOVE RENAULT SHOWROOM
SADASHIVANAGAR, BENGALURU-560 080.
REPRESENTED BY ITS PARTNERS
...APPELLANTS
(BY SRI. BADRI VISHAL, ADVOCATE)
AND:
1. ANURADHA MUTHAPPA RAI
W/O LATE N MUTHAPPA RAI
AGED ABOUT 48 YEARS
PRESENTLY R/A NO.14, I CROSS
SHANTHIVANA LAYOUT, SAHAKARANAGAR POST
BENGALURU-560 082.
2. ROCKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED ABOUT 40 YEARS
HAVING ADDRESS AT 7E/26-27
RAJMAHAN APARTMENT
8TH CROSS, 9TH MAIN ROAD
RMV EXTENSION, SADASHIVANAGAR
BENGALURU-560080.
9
3. RICKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED ABOUT 30 YEARS
HAVING ADDRESS AT 7E/26-27
RAJMAHAN APARTMENT
8TH CROSS, 9TH MAIN ROAD
RMV EXTENSION, SADASHIVANAGAR
BENGALURU-560 080.
4. ALPHA DEVANAHALI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP REGISTERED UNDER
THE PROVISIONS OF LLP ACT
REGISTERED OFFICE AT NO.135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU-560 080
REPRESENTED BY ITS PARNTERS.
5. ALPHA CONSOLIDATED PROJECTS(INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP REGISTERED UNDER
THE PROVISIONS OF LLP ACT
REGISTERED OFFICE AT NO.135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU-560080
REPRESENTED BY ITS PARTNERS.
6. CANARA EDUCATION SOCIETY
NO.10/1, GROUND FLOOR
LAKSHMINARAYANA COMPLEX
PALACE ROAD, BENGALURU-560052
REPRESENTED BY ITS TRUSTEES.
7. A PUSHPAJA SHETTY
W/O JAGANNATHA SHETTY
AGED ABOUT 65 YEARS
DOOR NO.603, SLR MANSION
I BLOCK, BASAVESHWARA NAGAR
BENGALURU-560 079.
8. SANJAY C D S/O C H DEVRAJ
MAJOR, NO.4, BENSON ROAD
BENSON TOWN, BENGALURU-560 046.
...RESPONDENTS
(BY SRI.B.V. ACHARYA, SR. COUNSEL APPEARING FOR
SRI. K.S. HARISH, ADVOCATE FOR C/R-1)
10
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 06.04.2021 PASSED ON I.A.NO.1 IN
O.S.NO.3046/2020 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.19, PARTLY
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND ETC.
IN M.F.A.No. 2690/2021
BETWEEN:
M/S. GOLDFINCH BUILDTECH PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
COMPANIES ACT 2013, HAVING ITS REGISTERED OFFICE AT
NO.2/55/1, OUTER RING ROAD, OPPOSITE LUMBANI GARDEN
NAGAVARA, BENGALURU - 560 045
SRI K PRAKASH SHETTY
...APPELLANT
(BY SRI. SANJAY NAIR, ADVOCATE)
AND:
1. SMT. ANURADHA MUTHAPPA RAI
W/O LATE N MUTHAPPA RAI
AGED 47 YEARS
NO.14, 1ST CROSS, SHANTHIVANA LAYOUT,
SAHAKARANAGAR POST
BENGALURU - 560 082
2. SRI ROCKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED 40 YEARS
NO.7/E/26-27,RAJMAHAL APARTMENT
8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080.
3. SRI RICKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED 30 YEARS
NO.7/E/26-27, RAJMAHAL APARTMENT
8TH CROSS, 9TH MAIN ROAD,
11
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080.
4. M/S NAVILAHALLY PLANTATIONS LLP
(FORMERLY KNOWN AS NAVILAHALLY PLANTATIONS)
A LIMITED LIABILITY PARTNERSHIP FIRM
REGISTERED UNDER THE PROVISIONS OF THE LIMITED
LIABILITY PARTNERSHIP ACT 2008
HAVING ITS REGISTERED OFFICE AT
NAVILAHALLY VILLAGE, K HOSAKOTE HOBLI
ALUR TALUK, HASSAN DISTRICT -573 129
REPRESENTED BY ITS PARTNERS.
5. M R STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT NO.135/A, 9TH MAIN
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080.
REPRESENTED BY ITS PARTNERS.
6. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
7. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
8. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.215
XANADU, BIDADI HOBLI
RAMANAGARA TALUK AND DISTRICT
REPRESENTED BY ITS PARTNERS
9. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
12
10 . ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP CREATED UNDER THE
LLP ACT, REGISTERED OFFICE AT NO. 135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
11 . ALPHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP CREATED UNDER THE
LLP ACT ,REGISTERED OFFICE AT NO. 135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
12 . MR VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 348, 12/2
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR
BENGALURU - 560 080.
13 . BIDADI REALTY VENTURES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
14 . 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 210/2, II
FLOOR ABOVE RENAULT SHOWROOM SADASHIVANAGAR
BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
15 . CANARA EDUCATION SOCIETY
NO.10/1, GROUND FLOOR
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BENGALURU - 560 052
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
16 . A PUSHPAJA SHETTY
AGED 65 YEARS
W/O JAGANNATHA SHETTY
DOOR NO. 603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR
BENGALURU - 560 079
13
17 . SANJAY C D
MAJOR, S/O C H DEVRAJ
NO.4, BENSON ROAD
BENSON TOWN, BENGALURU - 560 046
...RESPONDENTS
(BY SRI. B.V. ACHARYA. SR.COUNSEL APPEARING FOR
SRI. K.S. HARISH, ADVOCATE FOR R-1
SRI. A. RAVISHANKAR, ADVOCATE FOR R-2 & R-3
SRI. BADRI VISHAL, ADVOCATE FOR R-4
NOTICE TO R-5 TO R-17 IS D/W)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 06.04.2021 PASSED ON I.A.NO.1 IN
OS.NO.3046/2020 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.19, PARTLY
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND ETC.
IN M.F.A.No. 2704/2021
BETWEEN:
M/S. PRESENT INFRA PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
COMPANIES ACT 2013, HAVING ITS REGISTERED OFFICE AT
NO.2/55/1, OUTER RING ROAD, OPPOSITE LUMBANI GARDEN
NAGAVARA, BENGALURU - 560 045
SRI K PRAKASH SHETTY
...APPELLANT
(BY SRI. SANJAY NAIR, ADVOCATE)
AND:
1. SMT. ANURADHA MUTHAPPA RAI
W/O LATE N MUTHAPPA RAI
AGED 47 YEARS
NO.14, 1ST CROSS, SHANTHIVANA LAYOUT,
SAHAKARANAGAR POST
BENGALURU - 560 082
14
2. SRI ROCKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED 40 YEARS
NO.7/E/26-27,RAJMAHAL APARTMENT
8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080.
3. SRI RICKY MUTHAPPA RAI
S/O LATE N MUTHAPPA RAI
AGED 30 YEARS
NO.7/E/26-27, RAJMAHAL APARTMENT
8TH CROSS, 9TH MAIN ROAD,
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080.
4. M/S NAVILAHALLY PLANTATIONS LLP
(FORMERLY KNOWN AS NAVILAHALLY PLANTATIONS)
A LIMITED LIABILITY PARTNERSHIP FIRM
REGISTERED UNDER THE PROVISIONS OF THE LIMITED
LIABILITY PARTNERSHIP ACT 2008
HAVING ITS REGISTERED OFFICE AT
NAVILAHALLY VILLAGE, K HOSAKOTE HOBLI
ALUR TALUK, HASSAN DISTRICT -573 129
REPRESENTED BY ITS PARTNERS.
5. M R STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT NO.135/A, 9TH MAIN
RMV EXTENSION, SADASHIVANAGAR
BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS.
6. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
7. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
15
8. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.215
XANADU, BIDADI HOBLI
RAMANAGARA TALUK AND DISTRICT
REPRESENTED BY ITS PARTNERS
9. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
10 . ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP CREATED UNDER THE
LLP ACT, REGISTERED OFFICE AT NO. 135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
11 . ALPHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP CREATED UNDER THE
LLP ACT ,REGISTERED OFFICE AT NO. 135/A
9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
12 . MR VENTURES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 348, 12/2
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR
BENGALURU - 560 080.
13 . BIDADI REALTY VENTURES
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT
NO. 135/A, 9TH MAIN, RMV EXTENSION
SADASHIVANAGAR, BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
14 . 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 210/2, II
FLOOR ABOVE RENAULT SHOWROOM SADASHIVANAGAR
BENGALURU - 560 080
REPRESENTED BY ITS PARTNERS
16
15 . CANARA EDUCATION SOCIETY
NO.10/1, GROUND FLOOR
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BENGALURU - 560 052
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
16 . A PUSHPAJA SHETTY
AGED 65 YEARS
W/O JAGANNATHA SHETTY
DOOR NO. 603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR
BENGALURU - 560 079
17 . SANJAY C D
MAJOR, S/O C H DEVRAJ
NO.4, BENSON ROAD
BENSON TOWN, BENGALURU - 560 046
...RESPONDENTS
(BY SRI. B.V. ACHARYA. SR.COUNSEL APPEARING FOR
SRI. K.S. HARISH, ADVOCATE FOR R-1
SRI. A. RAVISHANKAR, ADVOCATE FOR R-2 & R-3
SRI. BADRI VISHAL, ADVOCATE FOR R-4
NOTICE TO R-5 TO R-17 IS D/W)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 06.04.2021 PASSED ON I.A.NO.1 IN
OS.NO.3046/2020 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.19, PARTLY
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND ETC.
THESE APPEALS BEING HEARD AND RESERVED ON
13.07.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
17
JUDGMENT
All these appeals by defendants 1 to 13 and others in O.S.No.3046/2020 are directed against the impugned order on I.A.No.1 passed by VII Addl.City Civil Judge, Bangalore, (for short 'the trial court'), whereby the said application filed by the respondent No.1 - plaintiff for temporary injunction under Order 39 Rules 1 and 2 CPC restraining the appellants - defendants from alienating, transferring, encumbering or creating third party rights over the suit schedule properties pending disposal of the suit was allowed by the trial court.
2. The aforesaid suit in O.S.No.3046/2020 was filed by respondent No.1 - plaintiff for partition and separate possession of her alleged 1/3rd share in the suit schedule properties and for other reliefs. It was her specific contention that she is the widow of late Muthappa Rai having married him on 27.11.2016 after the demise of his first wife Smt.Recca Rai, who expired in the year 2013. The defendants 1 and 2 are the only children (sons) of the deceased Muthappa Rai and his wife Recca Rai. It is contended that Muthappa Rai died 18 intestate on 15.05.2020 leaving behind the plaintiff and defendants 1 and 2 to succeed to his estate as his heirs and legal representatives, each of them being entitled to 1/3rd share each in the suit schedule properties. It is also contended that for more than a year prior to his death, Muthappa Rai was suffering from several ailments including esophageal cancer on account of which, he expired on 15.05.2020. Upon his death, plaintiff requested and demanded the defendants 1 and 2 to effect partition and division of the suit schedule properties and since the defendants did not comply with the requests and demands of the plaintiff, the present suit was filed by her.
3. As stated above, the sons of late Muthappa Rai are arrayed as defendants 1 and 2. The defendants 3 to 13 are said to be Companies and Partnership Firms / LLPs that were promoted by him for his business needs and he held majority shares in each of the said entities. The defendants 14 to 17 are persons who had transactions with Muthappa Rai and in whose name, he had acquired certain properties and made investments in which also, the plaintiff is entitled to 1/3 rd share 19 after his demise. Putting forth the aforesaid contentions, the plaintiff filed the said suit seeking the aforesaid reliefs.
4. Along with the suit, the plaintiff also filed an application I.A.1 for temporary injunction restraining the defendants from alienating, encumbering or creating third party rights over the suit schedule properties.
5. The defendants 1 and 2 as well as the other defendants contested the suit and filed their separate written statements repudiating, denying and controverting the claim and contentions of the plaintiff. It was the specific contention of the defendants 1 and 2 that by virtue of several documents, they had become absolute owners of the suit schedule properties and the plaintiff did not have any manner of right, title, interest or possession over the same. Along with the written statements and objections, the defendants produced several documents in support of their contentions and sought for dismissal of the suit as well as the application I.A.No.1. 20
6. The defendants 3 to 13 also filed their separate written statement and objections along with documents controverting and repudiating the claims and contentions of the plaintiff and specifically contended that the plaintiff does not have any manner of right, title, interest and possession over the suit schedule properties and that the suit and the application was liable to be dismissed. So also, the defendants 14 to 17 also contested the suit and the application and sought for their dismissal.
7. By the impugned order, the trial court partly allowed I.A.No.1 and restrained defendants 1, 2 and 3 to 13 from alienating , encumbering or creating third party rights over the suit schedule properties, aggrieved by which, they are before this Court by way of the present appeals. Under the impugned order, the application I.A.No.1 as against defendants 14 to 17 was rejected by the trial court.
8. M.F.A.No.1891/2021 is preferred by defendants 1 and 2; M.F.A.No.2401/2021 is preferred by defendants 9 and 21 10; M.F.A.No. 2471/2021 is preferred by defendants 3 to 8 and 11 to13;
9. M.F.A.No.2690/2021 and M.F.A.No.2704/2021 are filed by the appellants claiming that they are the alienees of Suit Schedule C and D properties contending that though they were not parties to the suit as on the date of the impugned order, their rights are affected and they have been subsequently impleaded in the suit.
10. Heard Sri.A.Ravishankar and Sri.Badri Vishal, learned counsel for the defendants - appellants, Sri.Sanjay Nair, learned counsel for the appellants in MFA No.2690/2021 and MFA No.2704/2021 and Sri.B.V.Acharya, learned senior counsel appearing for the plaintiff and perused the material on record.
11. In addition to reiterating the various contentions put forth in the memorandum of appeals and referring to the pleadings and voluminous documents produced by the appellants, learned counsel for the appellants in all the 22 appeals submitted that the trial court committed a grave and serious error of law and jurisdiction in passing the impugned order without considering or appreciating the material on record which has resulted in erroneous conclusion. It is pointed out that though the appellants had produced legal and acceptable evidence which clearly establish that the plaintiff did not have any manner of right, title, interest, possession or share over the suit schedule properties, the trial court has not referred to or considered any of the said documents and this approach by the trial court is contrary to well settled principles of law governing grant of temporary injunction.
In this context, it is submitted that in respect of the claim of the plaintiff over the suit schedule properties, the defendants had raised different defences by producing several, distinct and independent documents which have not been considered or appreciated by the trial court while passing the impugned order. It is therefore submitted that the impugned order passed by the trial court deserves to be set 23 aside. In support of his contentions, reliance is placed on the following decisions:-
(i) Sri.Gowrishankara Swamigalu vs. Sri. Siddaganga Mutt - ILR 1989 KAR 1701;
(ii) Vincent Britto vs. M/s.Eunice Britto - ILR 2002 KAR 2455;
(iii) K.L.Malhotra vs. Sudershan Kumari & Another - 2008 SCC Online Del 435;
(iv) Gangamma & others vs. G.Nagarathnamma & Others - (2009) 15 SCC 756;
12. Per contra, Sri.B.V.Acharya, learned Senior counsel appearing for respondent No.1 - plaintiff submits that all the defences put forth by the defendants are based on documents, which necessarily have to be proved only during a full-fledged trial and consequently, the trial court was justified in passing an order of temporary injunction, the object of which is to preserve the properties during the pendency of the suit. It is submitted that though the trial court may not have written a lengthy order, so long as the rival contentions have been adverted to and the trial court came to a conclusion that 24 the suit schedule properties needed to be preserved during the pendency of the suit, the impugned order cannot be faulted with on the sole ground that it is not an elaborately written order. It is also submitted that the impugned order of temporary injunction restraining alienation in a suit for partition, being discretionary order passed by the trial court, merely because a different view is possible would not be a ground available to this Court (appellate court) to set aside the impugned order, which is the outcome of discretion exercised by the trial court. It is therefore submitted that the impugned order passed by the trial court is perfectly legal and proper and the same does not warrant interference by this Court in the present appeal. In support of his contentions, reliance is placed on the following decisions:-
(i) Keshava Rajanna B. Vs. N.Rajanna - MFA
7276/2019 dated 23.09.2019;
(ii) H.Venkatachala Iyengar vs. Thimmajamma - AIR
1959 SC 443;
(iii) Miss.Rajashree Mohanty vs. Mrs. Amita Mohanty & others - (2014) SCC Online ORI 321;
25
(iv) Dalpath Kumar & Anr. vs. Prahlad Singh & others
- AIR 1993 SC 276;
(v) Wander Ltd., & Anr. vs. Antox India P.Ltd., - 1990 Supp (1) SCC 727;
13. I have given by anxious consideration to the rival submissions and perused the material on record.
14. The only point that arises for consideration in the present appeals is, whether the impugned order passed by the trial court granting temporary injunction in favour of the plaintiff against the defendants is just and proper, in the light of the rival contentions put forth by the parties in the suit and in the facts and circumstances of the case.
15. It is well settled that the three fold requirement of existence of prima-facie case, irreparable injury and balance of convenience coupled with the conduct of the plaintiff are a sine qua non before an order of temporary injunction is passed in favour of the plaintiff and leapfrogging is not permissible. It is also trite law that an order on an application for temporary injunction should be a well-reasoned and 26 speaking order after due application of mind and after considering and appreciating the entire material on record including the pleadings and documents of all parties and the rival contentions, failing which such an order would entail interference by the appellate court.
16. In my considered opinion, the impugned order passed by the trial court is an unreasoned, non-speaking, cryptic and laconic order, which smacks of total non- application of mind and the same deserves to be set aside and the matter be remitted back to the trial court for reconsideration of I.A.No.1 afresh within a stipulated time- frame for the following reasons:-
(a) A perusal of the impugned order where the trial court has not even referred to the averments made in the plaint averments or written statement but adverted only to the Affidavit of the plaintiff in support of I.A.No.1 and the objections of the defendants clearly indicates the casual and cavalier approach of the trial court which has lost sight of the fundamental principle that in civil cases, pleadings of the 27 parties and documents form the foundation of their case and even while deciding an application for temporary injunction, it is absolutely essential that the trial court should consider and appreciate the entire material on record before passing appropriate orders and failure to do so on the part of the trial court vitiates the order.
(b) The impugned order is completely based on surmises and conjectures and there is absolutely no discussion about the pleadings, documents and contentions of the parties; at paragraph 12, the trial court comes to the conclusion that the will and gift deeds require to be proved during the course of trial since the medical records of late Muthappa Rai casts a doubt upon his mental state; this finding is clearly erroneous inasmuch as there is absolutely no discussion in the impugned order with regard to details of the said documents or the pleadings of the parties in this regard or of the contents of the medical reports so as to come to the conclusion that there is a doubt with regard to prima facie execution of the documents by late Muthappa Rai. 28
(c) The findings recorded by the trial court at paragraph 12 of the impugned order with regard to claim of the plaintiff over the schedule properties belonging to defendants 3 to 13, viz., partnership firms, companies etc., and the retirement of late Muthappa Rai from the same are also without any consideration or appreciation of the material on record; further, the said findings which are based on assumptions and presumptions completely fail to take into account the undisputed fact that late Muthappa Rai only had a share in those properties and the plaintiff would be entitled to claim only 1/3rd share in the share of late Muthappa Rai and not the entire suit schedule properties and consequently, the impugned order granting temporary injunction in respect of the entire properties is clearly erroneous and vitiated and the same deserves to be set aside on this ground also.
(d) The impugned order also discloses that except the perverse and erroneous reasoning adopted by the trial court at paragraph 12, no other valid or cogent reasons are assigned in the impugned order except cryptically stating at paragraph 29 13 that points 1 to 3 are to be answered in favour of the plaintiff; it is clear that the impugned order is contrary to well settled principles of law governing grant of temporary injunction.
(e) A perusal of the plaint allegations indicate that except for stating at paragraphs 8 to 10 that late Muthappa Rai was suffering from serious health issues requiring hospitalization and treatment in addition to alleging that his mental condition kept him away from activities and prevented him from taking personal or business related decisions since June 2019, there is no allegation with regard to any of the documents alleged to have been executed by late Muthappa Rai as contended by the defendants. It is also relevant to state that despite the defendants producing several categories of documents and putting forth distinct and different defences in respect of the various properties, the plaintiff has not chosen to file a rejoinder / reply / replication to the written statements. It is true that mere non-filing of a reply / rejoinder / replication by a plaintiff in a suit cannot be construed or treated as an 30 admission on the part of the plaintiff with regard to the defences put forth by the defendants; it is however relevant to state that without any statement in writing by the plaintiff with regard to the documents produced by the defendants, the trial court was clearly not in a position to either understand/discern, much less come to a conclusion that the plaintiff is denying of the said documents or admitting them; in the absence of any form of pleading in writing by the plaintiff as regards the documents produced by the defendants, particularly when the plaintiff did not make any allegation in this regard in the plaint, the trial court clearly committed an error in coming to the conclusion that all the documents produced by the defendants had to be proved only after a full-fledged trial without even recording a finding with regard to which of the documents propounded by the defendants have been admitted or denied by the plaintiff in writing and this approach of the trial court also vitiates the impugned order.
(f) As stated supra, in support of their distinct and different defences in relation to the schedule properties, the 31 defendants produced several documents and took up several defences which can be categorized broadly into the following categories:-
x Properties acquired by the defendants 1 and 2 under the alleged Will dated 25.12.2019 said to have been executed by late Muthappa Rai;
x Properties acquired by defendants 1 and 2 under the alleged Gift Deeds said to have been executed by late Muthappa Rai;
x Registered and unregistered Power of Attorneys said to have been executed by late Muthappa Rai;
x Retirement Deeds, Released Deeds, Share Transfer Deeds, Reconstitution Deeds said to have been executed by late Muthappa Rai;
x Documents indicating that some of the suit schedule properties stand in the individual names of late Smt.Recca Rai and the defendants 1 and 2;
x Documents indicating the health condition of late Mutthappa Rai.32
(g) A perusal of the impugned order will indicate that though the defendants 1 and 2 have produced voluminous documents putting forth the several independent and distinct defences, except cursorily referring to them in the impugned order, the trial court has clearly failed to consider or appreciate the said documents in detail before coming to the conclusion that all the documents require to be proved only after a full fledged trial; it was incumbent upon the trial court to refer and consider all the documents before coming to the conclusion that the plaintiff was entitled to an order of temporary injunction.
(h) Though the trial Court has come to a conclusion stating in a single line that balance of convenience is in favour of plaintiff, he has not discussed any material or affidavit to come to such conclusion; in order to arrive at a particular conclusion, the trial Court is required to state the reasons for arriving at such conclusion in his order and that the reasons should be plausible reasons; the absence of any reason to arrive at a particular decision will be unjustifiable in eye of law, 33 because when a judicial discretion is to be exercised, the same is to be exercised with due care, caution and circumspection and hence, in absence of reason, it is very difficult to justify the conclusion reached to by the trial Court with regard to balance of convenience in favour of the plaintiff.
(i) The trial Court has not at all discussed and dealt with material on record to come to a conclusion that irreparable injury would be caused to plaintiff, if injunction is not granted; it has not recorded any finding regarding injury, much less irreparable injury. In the case of Jang Singh v. Brij Lal - AIR 1966 SC 1631, the Apex Court held as under:
" There is no higher principle for the guidance of the Court than the one that no act of Courts would harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim; "Actus curiae neminem gravabit".
(j) It is also well settled principles of law that injunction can be granted only if three important material ingredients are 34 satisfied by the plaintiff at a time. It is not sufficient that if only one ingredient is satisfied, other two ingredients are presumed to have been satisfied by the plaintiff automatically. Under the circumstances, the impugned order is contrary to settled principles of law relating to grant or refusal of interim injunction, and therefore, this is a fit case in which the appellate Court should interfere with the impugned order.
(k) In view of the facts obtaining in the instant case, in particular the impugned order being an unreasoned, non- speaking, cryptic and laconic order which smacks of total non- application of mind in addition to being contrary to well settled principles governing grant of temporary injunction, the decisions relied upon by the respondent No.1-plaintiff governing grant of temporary injunction in partition suits have no application to the facts of the instant case.
(l) In so far as the contention urged on behalf of the plaintiff that a discretionary order of temporary injunction should not be interfered with in appeal merely because a different view is possible, it is necessary to reiterate that the 35 impugned order clearly indicates that the trial court has exercised its discretion arbitrarily, capriciously and perversely by ignoring settled principles regulating grant or refusal of interlocutory injunction and as such, the said contention urged on behalf of the respondent No.1 can not be accepted.
17. In the result, I pass the following:-
ORDER
(i) MFA No.1891/2021 is hereby allowed.
(ii) The impugned order dated 06.04.2021 passed on I.A.No.1 in O.S.No.3046/2020 by the VII Addl.City Civil and Sessions Judge, Bengaluru, is hereby set aside.
(iii) The matter is remitted back to the trial court for reconsideration of I.A.No.1 afresh and pass appropriate orders in accordance with law after hearing all parties bearing in mind the observations made in this judgment.
(iv) All parties are directed to appear before the trial court on 29.07.2021 without further notice from the trial court 36 and by getting the matter advanced / pre-poned to that date or any other earlier date after notifying all parties.
(v) The trial court is directed to consider and dispose of I.A.No.1 afresh on merits within a period of two weeks from 29.07.2021 without being influenced by the observations and directions in the impugned order which has been set aside by this order.
(vi) It is directed that till the trial court passes appropriate orders on I.A.No.1 after remand by virtue of this order, all parties are directed not to alienate, encumber or create third party rights over the suit schedule properties; it is made clear that this direction is issued for the limited purpose of disposal of the present appeals and shall not be construed or treated as expressing any opinion on the merits / demerits of the rival contentions.
(vii) All rival contentions between the parties are kept open and no opinion is expressed on the same.
(viii) In view of disposal of M.FA.No.1891/2021, the remaining appeals M.F.A.No.2401/2021, 37 M.F.A.No.2471/2021, M.F.A.No.2690/2021 and M.F.A.No.2704/2021 do not survive for consideration and the same are accordingly disposed of.
In view of disposal of this appeal, Interim applications if any, do not survive for consideration and the same stands dismissed.
Sd/-
JUDGE Srl.