Karnataka High Court
Kamalamma vs A Vivekananda on 29 November, 2018
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.2948 OF 2016(CPC)
BETWEEN:
1. KAMALAMMA
WIFE OF MAHADEVAIAH K.
AGED ABOUT 35 YEARS.
2. MAHADEVAIAH K.
SON OF LATE KEMPAIAH
AGED ABOUT 43 YEARS.
BOTH RESIDING AT NO.17
2ND MAIN ROAD, JOOGANAHALLI
2ND BLOCK, RAJAJINAGAR
BANGALORE - 560 010.
... APPELLANTS
(BY SRI. ARUN BHAT AND VANISHREE R, ADVOCATES)
AND:
A. VIVEKANANDA
SON OF LATE ANJANAPPA
AGED ABOUT 33 YEARS
RESIDING AT NO.48/5
4TH CROSS, LAKKASANDRA
BANGALORE - 560 030.
... RESPONDENT
(RESPONDENT SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER
DATED:03.03.2016 PASSED ON IA NO.3 IN O.S.NO.6507 OF 2015
ON THE FILE OF THE XL ADDITIONAL CITY CIVIL & SESSIONS
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JUDGE, BENGALURU, DISMISSING THE IA NO.3 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is listed for admission. The respondent though served has remained absent. In view of the question raised by the appellants, the appeal is taken up for final disposal.
2. This appeal is by the defendants in o.s.No.650/2015 on the file of the XL Additional City Civil and sessions Judge, (for short 'the learned Civil Court') . The appellants are aggrieved by the impugned order dated 3.3.2016 insofar as rejection of I.A.3 filed by the appellants under section 151 of the code of Civil Procedure.
3. The plaintiff-respondent commenced suit in O.S.No.6507/2015 for permanent injunction in respect of property bearing No.228, Malagala Layout, 3 Nagarabhavi I Stage, Bengaluru ('subject property') asserting that the BDA allotted the subject property to the appellant No.2. BDA transferred absolute title to the appellant No.2 under sale deed dated 19.2.2013. The appellant No.2 approached the plaintiff-respondent offering to sell the subject property to discharge the loan the appellant No.2 ad availed from a certain Shivakumar. The plaintiff -respondent No.2 paid a sum of Rs.24.00 lakhs out of the total consideration of Rs.25.00 lakhs for the purchase of the subject property; in consideration of receipt of this amount, the appellant No.2 executed a power of attorney and sale agreement. Subsequently, the appellant No.2 approached the plaintiff-respondent requesting the plaintiff - respondent not to initiate suit for specific performance and that he would execute sale deed transferring the subject property in performance of the sale agreement. Later, at the instance of the appellant No.2, plaintiff - respondent secured authentication of the power of 4 attorney and execution of sale deed dated 10.7.2015 in his favour incurring huge cost towards stamp duty and registration fee.
4. The appellants resisted the suit contending inter alia that the power of attorney and sale agreement were obtained under coercion in connivance with the local Police. The appellant No.2 had never offered to transfer the subject property. The appellant No.2 was introduced to the Plaintiff - respondent by certain acquaintances representing that the plaintiff - respondent, who is politician, would be able to assist the appellant No.2 in resolving a litigation pending adjudication in O.S.No.2391. Further, the appellant No.2 had bona fide transferred the schedule property in favour of appellant No.1, who is his wife. The revenue records are made in the name of appellant No.1 and she continues to be in possession of the subject property as the absolute owner.
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5. While the plaintiffs filed an application under Order XXXIX Rules 1 and 2 of CPC (I.A.1) for temporary injunction against alienation of the subject property, the appellants filed application under Order XXXIX Rule 4 of CPC (I.A.II) for vacating of the ad interim ex parte order. Further the appellants also filed application under Section 151 of CPC (I.A.III) for injunction against the plaintiff - respondent from interfering with the possession of the subject property by the appellant No.1. The appellants also filed application under Order VII Rule 11 of the CPC (I.A.IV) for rejection of the plaint. The learned Civil Court by the impugned order dismissed all the four applications. The appellants have filed this appeal only insofar as rejection of their application (I.A.III) under Section 151 of CPC.
6. The learned Civil Court insofar as the application under section 151 of CPC, (I.A.III) has 6 concluded that the relief asked for by the appellants is a relief that could be granted under the provisions of Order XXXIX Rule 1(b) and (c) of CPC which is available only to a plaintiff, and a defendant can only seek injunction only in the circumstances contemplated under Order XXXIX Rule 1(a) of CPC. But, the relief of injunction claimed by the appellants cannot be construed as a relief under Order XXXIX Rule 1(a).
7. The learned counsel for the appellants, however, places reliance upon a Full Bench decision of this Court in Shakunthalamma vs. Kanthamma, reported in 2015 AIR - KAR Page 13. He has drawn the attention of this court to the legal position declared in Paragraph 22(3) which reads as under:
"In cases which do not fall under Order XXXIX Rule 1 of the CPC, the Court has inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of court and nothing in this code shall limit or 7 otherwise affect such inherent power of the court."
8. The learned counsel submits that the Full Bench of this Court has held thus while considering the question, "whether a defendant can file an application seeking temporary injunction against the plaintiffs in a suit filed by the plaintiffs.
9. The appellants have filed application for injunction disputing the plaintiff-respondent's title under sale deed dated 10.7.2015 and asserting independent title in the appellant No.1 under gift deed dated 23.3.2015 on the specific assertion that the plaintiff-respondent is making serious efforts to illegally entering possession of the subject property using money and muscle power. The appellants have further asserted that the sale deed dated 10.7.2015 is executed on the basis of a power of attorney obtained under duress in connivance with the Police. In these circumstances, the learned Civil Court ought to have examined, especially 8 when it concluded that the plaintiff had failed to make out prima facie case or balance of convenience or irreparable hardship, whether the appellants were entitled for injunction in exercise of the inherent power as held by the Full bench of this court. Therefore this court is of the considered opinion that the impugned order insofar as it relates to rejection of the appellants' application (I.A.III) under section 151 CPC is improper and deserves to be interfered with. As such, the impugned order insofar as it relates to rejection of I.A.III filed by the appellants under section 151 CPC is set aside. And this application is restored to the board of learned Civil Court for reconsideration on merits.
10. The learned counsel for the appellants submits that the appellants are under a constant threat and the fear that they will be disposessed from the subject property by the plaintiff- respondent. If the appellant No.1 is dispossessed from the subject 9 property during the time the application in I.A.III is under consideration by the learned Civil Court, the application itself would be rendered Infructuous. As such, it would be expedient and reasonable, in the facts and circumstances of this case, to direct both the appellants and the respondent to maintain status quo as regards the possession and nature of the subject property for a period of 60 days from today during which time the appellants can take necessary measures for requesting the learned Civil Court to consider their application on merits. Therefore, the following order:
a) The appeal is allowed, the impugned order insofar as rejection of I.A.III filed by the appellants under section 151 of CPC is set aside.
b) The I.A.III filed by the appellants under section 151 CPC is restored to the board of the learned Civil Court for consideration 10 on merits without being influenced by the impugned order or this order.
c) The appellants and plaintiff-respondent are hereby directed to maintain status quo with regard to the possession and nature of the subject property for a period of 60 days from today. No costs.
SD/-
JUDGE SA