Karnataka High Court
M/S. The Hamlet vs Sri. Ashwathanarayana on 18 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 27798 of 2023
c/w WP No.27804 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 27798 OF 2023 (GM-CPC)
c/w
WRIT PETITION NO. 27804 OF 2023 (GM-CPC)
IN W.P.No.27798/2023
BETWEEN:
M/S. THE HAMLET
A REGISTERED PARTNERSHIP FIRM,
REGISTERED UNDER PARTNERSHIP ACT,
NO.11, KEMWELL HOUSE,
TUMKUR ROAD,
YESHWANTHAPURA - 560 022.
REPRESENTED BY ITS PARTNER,
S.R.CHANDAK,
Digitally AGED ABOUT 75 YEARS,
signed by
SUCHITRA M J ...PETITIONER
Location: High
Court of (BY SRI. MANMOHAN P N., ADVOCATE)
Karnataka
AND:
1. SRI. ASHWATHANARAYANA,
S/O LATE ANJINAPPA,
AGED ABOUT 52 YEARS,
R/AT JALA HOBLI,
BENGALURU NORTH TALUK - 562 157.
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2. SMT. PARVATHAMMA,
D/O LATE ANJINAPPA,
AGED ABOUT 48 YEARS,
R/AT 3RD MAIN,
POLICE STATION ROAD, HEBBAL,
BANGALORE - 560 025.
3. SMT. ASHWATHAMMA,
D/O LATE ANJINAPPA,
W/O LATE KEMPEGOWDA,
AGED ABOUT 44 YEARS,
R/AT KOLIPURA VILLAGE,
HUTTANAHALLI POST,
BANGALORE NORTH TALUK - 562 157.
4. H.M.KRISHNAPPA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
5. NARAYANAPPA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
6. M.D.RAJANNA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
7. ASHWATHAPPA,
S/O APPANNA,
MAJOR IN AGE,
RESPONDENT NOS 4 TO 7 ARE
MAJOR IN AGE AND
R/AT MEENUKUNTE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562 157.
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8. M/S. NANDI ESTATES,
UNREGISTERED REAL ESTATE ENTREPRENEUR,
NO.7/2, BAJJI CENTRE,
(NEAR HOTEL MANU),
SAJJAN RAO ROAD,
V.V.PURAM,
BANGALORE - 560 004.
REPRESENTED BY ITS PARTNER,
SRI.P.S. SEETHARAMAIAH.
9. SRI. NARAYANASWAMY,
S/O LATE APPANNA,
AGED ABOUT 40 YEARS,
10. SRI. MANJUNATH,
S/O LATE APPANNA,
AGED ABOUT 38 YEARS,
BOTH RESPONDENT NO.9 AND 10 ARE
R/AT KYATHAVAR HOSAHALLI VILLAGE,
SIDDLAGHATTA TALUK,
KOLARA DISTRICT - 560 125.
11. SRI. DEVARAJ,
S/O LATE APPANNA,
AGED ABOUT 30 YEARS,
R/AT MEENUKUNTE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562 157.
12. SRI. MUNEGOWDA,
S/O LATE APPANNA,
AGED ABOUT 25 YEARS,
XEROX SHOP, TALUK OFFICE BUILDING,
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YELAHANKA UPANAGARA,
YELAHANKA - 560 064.
13. SMT. RATHNAMMA,
D/O LATE APPANNA,
W/O SHAMANNA,
AGED ABOUT 23 YEARS,
R/AT INDRASANAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK - 562 110.
14. MRS. AZRA KHANUM,
D/O REHMAN KHAN,
AGED ABOUT 44 YEARS,
R/AT NO.534, 3RD CROSS,
2ND BLOCK, R.T.NAGAR,
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI.HARISH S., ADVOCATE FOR C/R14)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 04/11/2023 PASSED ON IA NO.1 PASSED IN MA NO.
15022/2023 BY THE COURT OF THE V ADDL. DISTRICT JUDGE,
BENGALURU RURAL DISTRICT SITTING AT DEVANAHALLI AND
CONSEQUENTLY RESTRAIN THE R-14/DEFENDANT NO.8 FROM
CHANGING THE NATURE OF THE SUIT SCHEDULE PROPERTY IN
ANY MANNER WHATSOEVER INCLUDING THE DEVELOPMENT
OF THE PROPERTY TILL DISPOSAL OF OS. NO.36/2006
PENDING ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND
JMFC, DEVANAHALLI (PRODUCED AS ANNEXURE-J) AND ETC.
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IN W.P.NO.27804 OF 2023
BETWEEN:
M/S. THE HAMLET
A REGISTERED PARTNERSHIP FIRM,
NO.11, KEMWELL HOUSE,
TUMKUR ROAD,
YESHWANTHPURA - 560 022.
REPRESENTED BY ITS PARTNER
S.R. CHANDAK,
AGED ABOUT 75 YEARS,
...PETITIONER
(BY SRI. MANMOHAN P N.,ADVOCATE)
AND:
1. SRI. ASHWATHANARAYANA,
S/O LATE ANJINAPPA,
AGED ABOUT 52 YEARS,
R/AT JALA HOBLI,
BENGALURU NORTH TALUK - 562 157.
2. SMT. PARVATHAMMA,
D/O LATE ANJINAPPA,
AGED ABOUT 48 YEARS,
R/AT 3RD MAIN,
POLICE STATION ROAD, HEBBAL,
BANGALORE - 560 025.
3. SMT. ASHWATHAMMA,
D/O LATE ANJINAPPA,
W/O LATE KEMPEGOWDA,
AGED ABOUT 44 YEARS,
R/AT KOLIPURA VILLAGE,
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WP No. 27798 of 2023
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HUTTANAHALLI POST,
BANGALORE NORTH TALUK.
4. H.M.KRISHNAPPA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
5. NARAYANAPPA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
6. M.D.RAJANNA,
S/O DODDAMUNIYAPPA,
MAJOR IN AGE,
7. ASHWATHAPPA,
S/O APPANNA,
MAJOR IN AGE,
RESPONDENT NOS. 4 TO 7 ARE
MAJOR IN AGE AND
R/AT MEENUKUNTE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562 157.
8. M/S. NANDI ESTATES,
NO.7/2, BAJJI CENTRE,
(NEAR HOTEL MANU),
SAJJAN RAO ROAD,
V.V.PURAM,
BANGALORE - 560 004.
REPRESENTED BY ITS PARTNER,
SRI.P.S. SEETHARAMAIAH.
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9. SRI. NARAYANASWAMY,
S/O LATE APPANNA,
AGED ABOUT 40 YEARS,
10. SRI. MANJUNATH,
S/O LATE APPANNA,
AGED ABOUT 38 YEARS,
BOTH RESPONDENT NO.9 AND 10 ARE
R/AT KYATHAVAR HOSAHALLI VILLAGE,
SIDDLAGHATTA TALUK,
KOLARA DISTRICT - 560 125.
11. SRI. DEVARAJ,
S/O LATE APPANNA,
AGED ABOUT 30 YEARS,
R/AT MEENUKUNTE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562 157.
12. SRI. MUNEGOWDA,
S/O LATE APPANNA,
AGED ABOUT 25 YEARS,
XEROX SHOP,
TALUK OFFICE BUILDING,
YELAHANKA UPANAGARA,
YELAHANKA - 560 064.
13. SMT. RATHNAMMA,
D/O LATE APPANNA,
W/O SHAMANNA,
AGED ABOUT 23 YEARS,
R/AT INDRASANAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK - 562 110.
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WP No. 27798 of 2023
c/w WP No.27804 of 2023
14. MRS. AZRA KHANUM,
D/O REHMAN KHAN,
AGED ABOUT 44 YEARS,
R/AT NO.534, 3RD CROSS,
2ND BLOCK, R.T.NAGAR,
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI.HARISH S., ADVOCATE FOR C/R14)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 04.11.2023 PASSED ON I.A NO.1 PASSED IN M.A NO.
15021/2023 BY THE V ADDITIONAL DISTRICT JUDGE,
BENGALURU RURAL DISTRICT SITTING AT DEVANAHALLI AND
CONSEQUENTLY RESTRAIN THE RESPONDENT
NO.14/DEFENDANT NO.8 FROM ALIENATING THE SUIT
SCHEDULE PROPERTY TILL DISPOSAL OF O.S NO.36/2006
PENDING ON THE FILE OF III ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, DEVANAHALLI (PRODUCED AS ANNEXURE-J)
AND ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 27798 of 2023
c/w WP No.27804 of 2023
ORDER
In W.P.No.27798/2023, the petitioner, plaintiff in O.S.No.36/2006 on the file of the III Additional Senior Civil Judge and JMFC, Devanahalli, is before this Court, praying to set aside the order dated 04.11.2023 on I.A.No.1 in M.A.No.15022/2023 on the file of the V Additional District Judge, Bengaluru Rural District, sitting at Devanahalli, wherein order dated 31.08.2023 on I.A.No.26 in O.S.No.36/2006 is challenged and in W.P.No.27804/2023, order dated 31.08.2023 on I.A.No.25 in O.S.No.36/2006 is challenged in M.A.No.15021/2023 on the file of the V Additional District Judge, Bengaluru Rural District, sitting at Devanahalli.
2. Heard Sri. P.N.Manmohan, learned counsel for the petitioner and Sri. Harish.S., learned counsel for the caveator-respondent No.14 in both the petitions. Perused the writ petitions papers.
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3. The suit of the petitioner-plaintiff is one for specific performance of agreement dated 08.01.1993. Learned counsel Sri. Manmohan would submit that initially in the said suit, the petitioner had filed I.A.No.19 under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short 'CPC') against defendant No.8, respondent No.14 herein, to restrain defendant No.8 from putting up any construction in the suit schedule property. The said application was dismissed. When the suit was at the stage of plaintiff's evidence, the petitioner-plaintiff is said to have filed I.A.Nos.25 and 26 under Order 39 Rules 1 and 2 of CPC, requesting to restrain defendant No.8, respondent No.14 herein from changing nature of the suit schedule property as well as not to alienate the suit schedule property. Learned would further submit that though the petitioner made out prima-facie case, the trial Court rejected I.A.Nos.25 and 26 by order dated 31.08.2023. Against which, the petitioner said to have filed M.A.No.15021/2023 and M.A.No.15022/2023 before the V Additional District Judge, Bengaluru Rural District, sitting
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NC: 2023:KHC:45996 WP No. 27798 of 2023 c/w WP No.27804 of 2023 at Devanahalli. Along with appeals, the petitioner-plaintiff also filed I.A.Nos.25 and 26 in both the appeals under Order 39 Rules 1 and 2 of CPC, praying to restrain defendant No.8-respondent No.14 herein from changing the nature of the suit schedule property as well as not to alienate suit schedule property. Under impugned order, the said I.A.Nos.25 and 26 were rejected. Hence, the petitioner in both the petitions is before this Court.
4. Learned counsel for the petitioner further submits that the trial Court ought to have granted the relief as sought in I.A.Nos.25 and 26 and refusal to grant such relief would result in grave prejudice and third party interest would come into existence. It is further submitted that if the trial Court had considered the prayer of the petitioner-plaintiff and granted interim order as sought, it would have prevented from creating third party interest and it would have not prejudiced the case of defendant No.8. In that regard, learned counsel places reliance on the decision of the Hon'ble Apex Court in the case of
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NC: 2023:KHC:45996 WP No. 27798 of 2023 c/w WP No.27804 of 2023 JULIEN EDUCATIONAL TRUST vs. SOURENDRA KUMAR ROY AND OTHERS reported in (2010) 1 SCC 379.
5. Per contra, Sri. S.Harish, learned counsel for caveator-respondent No.14, defendant No.8 before the trial Court would support the order passed by the trial Court and would submit that the main appeal is pending and the petitioner-plaintiff is taking time in the said appeal without arguing the main appeal. Learned counsel would further submit that there was no interim order operating against the respondents-defendants and when the suit was at the stage of evidence, the Court has rightly refused to grant interim order. He further submits that the agreement on which the suit is based, is fabricated and concocted. Therefore, learned counsel submits that the petitioner-plaintiff has not made out prima-facie case and prays for dismissal of writ petitions.
6. Having heard the learned counsels for the parties and on perusal of the writ petitions papers, I am of
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NC: 2023:KHC:45996 WP No. 27798 of 2023 c/w WP No.27804 of 2023 the view that at this stage, it would not be proper for this Court to give findings with regard to prima-facie case or with regard to contention that the suit document is fabricated or concocted. Any finding on the above would prejudice the case of either of the parties before the Trial or Appellate Court. Admittedly, Miscellaneous Appeals against rejection of I.A.No.1 are still pending and it is stated that those appeals have been set down for hearing on 08.01.2024. The trial Court under impugned order dated 31.08.2023 rejected I.A.Nos.25 and 26 filed seeking to restrain defendant No.8-respondent No.14 herein from changing the nature of the suit schedule property as well as not to alienate suit schedule property. Miscellaneous Appeals filed against the said order are pending though I.A.No.1 filed for similar prayer is rejected. It would be appropriate for the Appellate Court to hear the parties on appeal on the next date of hearing and pass appropriate order within reasonable time. Learned counsel for the petitioner-plaintiff placed reliance on the decision in the case of JULIEN EDUCATIONAL TRUST (supra), the said
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NC: 2023:KHC:45996 WP No. 27798 of 2023 c/w WP No.27804 of 2023 decision arose out of the order passed by the trial Court as well as judgment passed in appeal filed under Order 41 Rule 5 of CPC. In the instant case, appeals filed under Order 43 Rule 1[r] of CPC are still pending. Therefore, principles laid down in the above stated decision would have application or not, shall have to be examined, while examining the order that would be passed on the pending appeals.
With the above, these writ petitions stands disposed off.
The observation made by the trial Court while disposing I.A.No.1 in both appeals shall not influence the Appellate Court while considering the main appeal on merits.
Sd/-
JUDGE SMJ List No.: 1 Sl No.: 39