T M Ratnadass vs Pastor Daniel Christian on 18 January, 2014

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Karnataka High Court

T M Ratnadass vs Pastor Daniel Christian on 18 January, 2014

Bench: Huluvadi G. Ramesh

                                    1


       IN THE HIGH COURT OF KARNATAKA AT BANGALORE

           DATED THIS THE 7th DAY OF October 2013

                             BEFORE

        THE HON'BLE MR.JUSTICE HULUVADI G. RAMESH

                   M.F.A.No.9937 / 2011 (CPC)

BETWEEN:

  1. T.M.Ratnadass
     S/o late Thavamani,
     aged 64 years, R/at No.19,
     Achutharaya Mudalier Road,
     Fraser Town, Bangalore.

  2. Church of Jesus Christ,
     Ashwathag, Thanisandra,
     SRK Nagar, Bangalore,
     Rep.by its Secretary,
     Rev.Chandran Charles P.
     Son of B.Ponnuraj,
     aged about 39 years.                       .. Appellants

( By Sri G.Janardhana, Advocate )


AND:

  1. Pastor Daniel Christian,
     S/o Christian, aged 68 years,

  2. Mrs.Jothi Daniel,
     W/o C.Daniel, aged 59 years,

  3. Isrel S/o C.Daniel,
     aged 32 years,
                                 2

     All are residing at
     Ganapathi Co-operative Housing
     Society, 4th Floor, Room No.401,
     Opp: Ambikanagar, Muland West,
     Mumbai.

  4. J.James s/o A.G.Fernades,
     aged 55 years,
     No.20, 5th Cross, J.H.Cottage,
     Ashwathnagar, Thanisandra,
     SRK Nagar Post,
     Bangalore.                                 .. Respondents

 ( By Sri T.K.P.Law Associates, Advocate for C/R-1,
   Sri Siddarth B. Muchandi, Advocate for R-1 to 3
   and Sri Mathew David Lardey, Advocate
    for R-4 )


     This Appeal is filed under Order 43 Rule 1         (r ) of CPC
against the order dated 22.10.2011 passed                on IA in
O.S.No.25935/2011 on the file of XXVIII Addl.City       Civil Judge,
Bangalore, rejecting IA filed under Order 39 Rule 1 &   2 of CPC for
T.I.

      This Appeal coming on for Admission this day, the Court
delivered the following :

                           JUDGMENT

The prayer sought by the plaintiff-appellant herein in the suit is for declaration that the Trust Deed dated 24.7.2000 under which the first defendant created an interest over the suit schedule property by having power of attorney as null and void 3 and for a declaration that the Sale Deed dated 25.5.2005 executed in the name of defendant No.4 as null and void. Plaintiff has also filed an application for permanent injunction under Order 39 Rules 1 & 2 CPC. By the impugned order, the same came to be rejected by the trial Court. Hence, the plaintiff- appellant is before this Court.

Heard the learned counsel representing the parties.

2. It appears, the plaintiff is *not one of the consenting witness to the Deed of Trust. The question of delay is also raised by the respondents in approaching the Court by the appellant. The fact of appellant being one of the consenting witness is (**) denied. In the circumstances, having regard to the maintainability of suit, point of limitation and the appellant being one of the consenting witness to the document, appellant cannot seek declaration and simultaneously for granting permanent injunction. Moreover, the property in question is also said to be a part of the trust property.

* Added & ** deleted vide order on IA 1/2013 on 18.1.2014 4 In that view of the matter, the trial Court is directed to expedite the matter in view of the controversy raised belatedly.

Appeal is disposed of, with a direction to the parties to appear before the trial Court. All contentions are kept open to be urged before the trial Court.

Sd/-

JUDGE bk/

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