Karnataka High Court
Dr G S Surya Prakash vs Sri R N Anantha Krishna on 29 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.6875/2024 (CPC)
BETWEEN:
1. DR. G.S. SURYA PRAKASH
AGED ABOUT 69 YEARS,
S/O LATE DR. K.S.G.SASTRI,
R/AT NO.2113, 3RD MAIN ROAD,
7TH 'A' CROSS, R.P.C.LAYOUT,
VIJAYANAGAR 2ND STAGE,
BENGALURU-560 040.
2. SMT. RAJINI
AGED ABOUT 60 YEARS,
W/O LATE G.S.SEETHARAM
3. SMT. PRIYANKA SHASTRI
AGED ABOUT 38 YEARS,
D/O LATE G.S.SEETHARAM
4. SRI. VIKAS SHASTRI
AGED ABOUT 35 YEARS,
S/O LATE G.S.SEETHARAM
APPELLANTS 3 AND 4 ARE
REPRESENTED BY GPA HOLDER
SMT. RAJINI (APPELLANT NO.2)
APPELLANTS 2 TO 4 ARE
R/AT NO.73, 4TH MAIN,
BINNY LAYOUT, ATTHIGUPPE,
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VIJAYANAGARA,
BENGALURU-560 040.
5. SRI. G.S. SATHYA NARAYANA
AGED ABOUT 65 YEARS,
S/O LATE DR. K.S.G.SASTRY
R/AT NO.28, ALIDAS LAYOUT,
NAGARABHAVI ROAD,
BEHIND SHOBHA HOSPITAL,
VIJAYANAGAR,
BENGALURU-560 040.
6. SMT. MEENAKSHI G. PAI
AGED ABOUT 62 YEARS,
D/O LATE DR. K.S.G. SASTRY
REPRESENTED THROUGH HER GPA
(WHO ALSO THE APPELLANT NO.5 HEREIN)
SRI G.S.SATHYA NARAYANA,
AGED ABOUT 65 YEARS,
S/O LATE DR. K.S.G. SASTRY,
R/AT NO.28, ALIDAS LAYOUT,
NAGARABHAVI ROAD,
BEHIND SHOBHA HOSPITAL,
VIJAYANAGAR,
BENGALURU-560 040. ... APPELLANTS
(BY SRI C.M.NAGABUSHANA, ADVOCATE)
AND:
1. SRI R.N. ANANTHA KRISHNA
AGED ABOUT 48 YEARS,
S/O LATE G.S.RANGANATHA,
R/AT NO.254,
KACHOHALLI VILLAGE,
LAKSHMIPURA POST,
MAGADI MAIN ROAD,
DASANAPURA HOBLI,
BENGALURU NORTH-562 123.
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2. SMT. R.N.LAKSHMIDEVI
AGED ABOUT 83 YEARS,
S/O LATE G.S.RANGANATHA,
R/AT NO.254,
KACHOHALLI VILLAGE,
LAKSHMIPURA POST,
MAGADI MAIN ROAD,
DASANAPURA HOBLI,
BENGALURU NORTH-562 123.
3. SMT. S. PADMAGEETHA
AGED ABOUT 63 YEARS,
D/O LATE G.S.RANGANATHA,
W/O DR. S.RAGHUNATH,
R/AT NO.562, 1ST MAIN,
1ST CROSS, S.V.G.NAGARA,
BENGALURU - 560 072.
4. SMT. SANGEETHA
AGED ABOUT 57 YEARS,
D/O LATE G.S.RANGANATHA,
W/O SATHYANARAYANA,
R/AT NO.755,
8TH MAIN, 9TH BLOCK,
NAGARABHAVI 2ND STAGE,
BENGALURU - 560 072.
5. R.N.MARY RAJESHWARI
AGED ABOUT 43 YEARS,
D/O LATE G.S. RANGANATHA,
R/AT NO.254,
KACHOHALLI VILLAGE,
LAKSHMIPURA POST,
MAGADI MAIN ROAD,
DASANAPURA HOBLI,
BENGALURU NORTH-562 123.
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6. SRI. R.N.SRINIVAS PRASAD
AGED ABOUT 48 YEARS,
S/O LATE G.S.RANGANATHA,
R/AT NO.254,
KACHOHALLI VILLAGE,
LAKSHMIPURA POST,
MAGADI MAIN ROAD,
DASANAPURA HOBLI,
BENGALURU NORTH-562 123. ... RESPONDENTS
(BY SRI VIVEK REDDY, SENIOR COUNSEL FOR
SRI M.SHANMUGAM YADAV, ADVOCATE FOR C/R1;
NOTICE TO R2 TO R6 IS DISPENSED WITH)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 20.09.2024 PASSED ON IA
NO.1 IN O.S.NO.382/2024 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING IA
NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151
OF CPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous first appeal is filed praying this Court to set aside the order passed by the Trial Court in allowing the application filed under Order 39 Rule 1 and 2 of CPC restraining the appellants from alienating the suit schedule property till the disposal of the suit vide order dated 20.09.2024. 5
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiff while seeking the relief of partition of 1/10th share in O.S.No.382/2024 is that the suit schedule property was acquired by the grandfather of the plaintiff and the father of the plaintiff was the only son. As such, there was a difference in the family, the father of the plaintiff relinquished his right in favour of his father i.e., grandfather of the plaintiff by executing a release deed dated 03.03.1967. The father of the plaintiff died intestate by leaving behind the plaintiff. The suit schedule property was granted in favour of the grandfather of the plaintiff and Saguvali chit was also issued. Subsequently, the documents were mutated in the name of the grandfather of the plaintiff and he was in continues possession and enjoyment over the suit schedule property. The defendant Nos.6 to 11 colluded with each other and got mutated their names in the revenue documents. Defendant Nos.6 to 11 are trying to get transfer the suit schedule property in the name of the third parties to defeat the 6 rights of the plaintiff. Hence, filed the suit for partition claiming 1/10th share and inter alia sought for the relief of temporary injunction restraining the defendant Nos.6 to 11 from alienating the suit schedule property reiterating the plaint averments.
4. Defendant Nos.6 to 11 who are the appellants herein appeared through their counsel and filed the written statement and objections to I.A.No.1. It is contended that the plaintiff has filed the suit for the relief of partition and separate possession claiming 1/10th share. The plaintiff itself clearly stated in the plaint that there is a registered release deed dated 03.03.1967, executed by his father when his father had no right to execute the same. The fact that the father of the plaintiff died on 01.06.1996. It is contended that the father of the plaintiff never questioned the legality of the said release deed. The present suit is filed after lapse of 28 years. The plaintiff is well aware about the existence of release deed from the beginning. It is contended that defendant No.3 by name Sangeetha filed O.S.No.779/2016 in respect of the very same property and admitted that she is representing the entire extent of late G S 7 Ranganath as power of attorney, which includes the plaintiff in the said suit. The said plaint came to be rejected on 01.09.2018 and the appeal preferred by the appellant in R.F.A.No.1761/2018 also came to be withdrawn. As such, the fresh suit seeking the relief of partition by suppressing the material facts is not maintainable. It is also contended that the plaintiff and defendant Nos.2 to 5 have filed O.S.No.7901/2018 for the relief of partition and the said suit also includes the suit schedule property. The plaint came to be rejected vide order dated 06.08.2020. The plaintiff has not disclosed the said facts before the Trial Court.
5. The Trial Court having considered the grounds urged in the application as well as the statement of objections, formulated the following points:
1. Whether the plaintiff proves that they have got prima-facie case and the balance of convenience tilts in their favour to pass an order of ad-interim injunction on I.A.No.1?8
2. Whether the plaintiff proves that they will suffer irreparable loss and hardship if temporary injunction order has not been passed on I.A.No.1?
3. What order?
6. The Trial Court having considered the factual aspects of the case, allowed the application granting the interim injunction as prayed in I.A.No.1. Being aggrieved by the same, the present appeal is filed before this Court by defendant Nos.6 to 11.
7. The main contention of the learned counsel for the appellants is that the suit itself is not maintainable hence, the question of granting the relief of temporary injunction does not arise. It is also contended that in the very plaint itself it is stated that the plaintiff's father got himself separated from the joint family way back in the year 1967 itself by executing a registered release deed in favour of his father and the appellants herein. It is also contended that the plaintiff's father during his lifetime never questioned about the execution of the release deed. But 9 the suit was filed after lapse of 5½ decades and they have been estopped from contending the same. It is also contended that the Trial Court failed to consider the document of release deed which was executed on 03.03.1967 and as on that date, the plaintiff was not at all born and no right was vested on him so as to claim any share or right in the alleged joint family property. The counsel also would vehemently contend that the very material is clear that it is a self acquired property of Dr.K.S.G.Sastry. Hence, the Trial Court erred in not considering the same. Though the father of the plaintiff was not entitled to any right, however, he had collected the money and executed the release deed and the same is only on account of love and affection of his father given one property and also the money. It is also contended that the Trial Court failed to consider and appreciate that plaintiff has not approached the Court with clean hands when the plaintiff intentionally has suppressed about filing of two suits among which, one of the them, the plaintiff was also a party seeking the very same relief and the said suit has been dismissed and an appeal also filed before this Court and the said appeal came to be withdrawn. The counsel also would 10 vehemently contend that the Trial Court failed to consider the fact that the plaintiff along with his sisters and brother filed a suit in O.S.No.779/2016 and also contended that one more suit was filed and the same was also rejected and against the said order, an appeal was field and the same is pending before this Court. It is also specific contention of the plaintiff that the suit schedule property is not an ancestral property and the same came to be granted in favour of K G S Sastry. When such being the case, claiming share also does not arise. It is also contended that the father died in the year 1996, the present suit is filed in the year 2024. The counsel also would vehemently contend that by suppressing the pendency of the suit even though very same relief is sought in R.F.A.No.1170/2020, filed a fresh suit before the Trial Court and obtained an order of temporary injunction. The Court has to take note of the conduct and suppression of facts. Hence, it requires interference of this Court.
8. The counsel for the appellants also in support of his arguments relied upon the judgment reported in ILR 2011 KAR 3141 in the case of G CHANNARAYAPPA AND OTHERS vs 11 M/S LAKSHMI MALLABLES PRIVATE LIMITED AND ANOTHER wherein this Court held that while considering the case of temporary injunction, the Court has to take note of prima facie case which certainly would include the nature of the suit and its maintainability. This Court held that when the suit itself is not maintainable and the same has to be considered while granting the temporary injunction, ought not to have granted the relief. The counsel also brought to notice of the Court Sections 38 and 37 of the Specific Relief Act also discussed in the judgment. Hence, the counsel would vehemently contend that the plaintiff has not entitled for any relief.
9. Per contra, the learned counsel for respondent No.1 would vehemently contend that this plaintiff born subsequent to the execution of the release deed by his father. The counsel would vehemently contend that when the K G S Sastry got the property and he died intestate, succession open under Section 8 of the Hindu Succession Act. When the property was self acquired property, the plaintiff has a share over the said property. The counsel, in respect of earlier suit is concerned, he 12 would vehemently contend that in O.S.No.779/2016, the plaintiff is not the party to the suit so also in R.F.A.No.1716/2018 but not denies the fact that O.S.No.7901/2018 is filed for the relief of partition for the same properties and an application was filed under Order VII Rule 11(a) and (d) of CPC and the plaint was rejected and against the said order, an appeal is filed in R.F.A.No.1170/2020 and mere pendency of the appeal, the contention of the plaintiff cannot be denied and there is no any suppression of material before the Court. The counsel also would vehemently contend that the plaintiff has given the details of the family in the suit and the Trial Court having taken note of the case of the plaintiff particularly in paragraph 9 given the reasons for granting the relief of temporary injunction and hence, the Trial Court has not committed any error.
10. Having heard the learned counsel appearing for the respective parties and also considering the principles laid down in the judgment referred supra, the points that would arise for the consideration of this Court are:
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1. Whether the Trial Court committed an error in granting the relief of temporary injunction as sought in I.A.No.1 and whether it requires interference of this Court?
2. What order?
Point No.1:
11. Having considered the pleadings of the parties and also on perusal of the material available on record, it discloses that in the plaint averments in O.S.No.382/2024, the plaintiff has not disclose anything about filing of earlier suit in O.S.No.7901/2018 wherein the plaintiff is a party to the suit and also the same relief is sought for the relief of partition in respect of the very same suit schedule property. In the said suit, the plaintiff was the 4th plaintiff. It is also not in dispute that I.A.No.2 was filed in the said suit under Order VII Rule 11(a) and
(d) of CPC and the same was allowed and the plaint was rejected. Being aggrieved by the said order, an appeal in R.F.A.No.1170/2020 was filed on 03.09.2020 and as on the date of the filing of the suit in O.S.No.382/2024, that is present suit, 14 it is very clear that the plaintiff had the knowledge of filing of the earlier R.F.A.No.1170/2020 since the plaintiff is also a party in the said appeal.
12. It is important to note that in the said R.F.A.No.1170/2020, similar relief of temporary injunction is sought by filing an application that is on 03.09.2020 and having perused the plaint it discloses that there is no such averment in the plaint regarding filing of the suit for the relief of partition and rejection of plaint and also filing of appeal against the said rejection of plaint. Nothing is averred in the plaint. Hence, it is clear that the plaintiff has approached the Trial Court by filing a separate suit instead of pursuing the remedy before this Court in RFA filed challenging the order passed under Order VII Rule 11(a) and (d) of CPC. Present suit is filed in the year 2024 but the appeal is pending from 2020 and the same is not disclosed in the present suit. While approaching the Court, the plaintiff has to disclose all details of earlier suits and the present suit is a second suit and in the earlier suit i.e. O.S.No.7901/2018, the plaintiff/appellant is the fourth plaintiff and similar relief is 15 sought. Hence, it discloses that the plaintiff has not approached the Court with clean hands and suppression of fact itself is a ground for rejection of IA when the discretionary relief is sought.
13. It is also important to note that when the similar relief is sought in the earlier suit, there cannot be any second suit. The fact that O.S.No.7901/2018 filed by the plaintiff/respondent No.1 in this appeal also sought the very same relief of partition in respect of three suit schedule properties. The very contention of the counsel for the appellants that very suit itself is not maintainable and there is a force in the contention. This Court also in the case of CHANNARAYAPPA referred supra held that while considering the case for temporary injunction, the Trial Court has to see whether prima facie case is made out by the plaintiff which certainly would include the nature of the suit and its maintainability. Admittedly, the same is a second suit and suppressed the earlier suit and rejection of plaint also. The Trial Court has not made out any attempt to find out the fact that whether the suit is maintainable or not. Even the defendants in the written statement have categorically 16 stated filing of earlier suit by one of the plaintiff in O.S.No.779/2016 wherein also the plaint was rejected and the same was challenged in R.F.A.No.1761/2018 and the same was voluntarily withdrawn. It is also not in dispute that the defendants in paragraph 4 also contended that O.S.No.7901/2018 was also filed and the same was rejected and brought to notice of Trial Court with regard to the earlier suit and an appeal is filed before this Court. When such appeal is filed, ought to have pursued the remedy before this Court instead of filing one more suit and concealed the fact and approached the Trial Court and nothing is averred in the plaint with regard to the earlier suit. It is also not in dispute that defendant No.3 also filed a suit in O.S.No.779/2016 for the relief of partition and the same was rejected and the appeal filed by her also withdrawn. These are the aspects which ought to have been considered by the Trial Court while considering the issue of temporary injunction and when the party approaches the Court, must approach the Court with clean hand.
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14. The other contention of the counsel for the appellants that already the father of the plaintiff had executed the release deed in favour of his father and the appellants herein long back in the year 1967. The plaintiff also not disputes the same and admits the execution of the release deed. It is also important to note that specific averment is also made that in view of the difference in the family, the father of the plaintiff separated from the family. It is also important to note that during the lifetime of his father, i.e., from 1967 to 1996 till his death, he did not challenge the release deed and during the lifetime of the father also, the present plaintiff has not challenged the same contending that the father has no right to execute the release deed. But only in 2024, even though the father died in the year 1996, almost after 28 years, the present suit is filed. No doubt, one of the legal heir of the said Ranganatha filed suit in O.S.No.779/2016 earlier and the same was dismissed. But subsequently, she has been arrayed as party in O.S.No.7901/2018 along with this plaintiff and also filed an appeal before this Court, which is pending for consideration. It has to be noted that when the father of the plaintiff had 18 relinquished his right long back in the year 1967, the counsel for the respondent No.1 contends that Section 8 applies since the plaintiff was not born as on the date of execution of the release deed and the same would be raised in the appeal which is pending before the Court in R.F.A.No.1170/2020. When he was a party in the appeal, the same also suppressed and filed the present suit and obtained an order of temporary injunction suppressing the material facts. Whether Section 6 or Section 8 of the Hindu Succession Act applies that can be urged in the appeal which was already filed before this Court. The appeal was filed in the year 2020 but the suit is filed in the year 2024 and sought for an interim relief suppressing the material facts. Hence, the judgment referred supra in the case of CHANNARAYAPPA relied upon by the appellants is aptly applicable to the case on hand with regard to the maintainability of the suit and also prima facie case which includes the nature of the suit. Hence, I do not find any force in the contention of respondent No.1 that the plaintiff is entitled for relief. Even if the plaintiff is entitled for the relief, ought to have urged the same in R.F.A.No.1170/2020 wherein also the plaintiff is a party instead 19 of filing another suit. Hence, the plaintiff is not entitled for the relief of temporary injunction and not made out prima facie case including the nature of the suit and the said fact has not been considered by the Trial Court and the Trial Court erroneously proceeded by giving a reason in paragraph 9 of the order wherein nothing is discussed with regard to suppression of facts when not stated anything about the earlier suit and appeal in the plaint. Hence, it requires interference of this Court. Accordingly, I answer the above point as affirmative.
15. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeal is allowed. The impugned order dated 20.09.2024 passed on I.A.No.1 in O.S.No.382/2024 is set aside. Consequently, I.A.No.1 is dismissed.
Sd/-
(H.P. SANDESH) JUDGE SN