Karnataka High Court
M/S. V.M. Constructions vs Sri. L. Lokesh Babu on 13 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 998
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
R.F.A.No.28/2016 ( INJ)
Between:
M/S V.M. Constructions,
A Registered Partnership Firm,
Having its Office at P-1,
4th Floor, A.M. Plaza,
No.89, Airport Road,
Bangalore-560 017.
Rep. By its Managing Partners
1. Sri. A. Venkatesh
Aged about 51 years
S/o Late. H.C. Annaiappa Reddy
2. Sri. M.V. Muralidharan
Aged about 50 years
S/o Late. Raman Nair ... Appellants
(By Sri. P.B. Raju., Advocate)
And:
1. Sri. L. Lokesh Babu
S/o Late. A.C. Lakshmana Murthy
Aged about 37 years
2. Sri. L. Suresh Babu
S/o Late. A.C. Lakshmana Murthy
Aged about 34 years
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3. Sri. L. Manjunatha @ L. Rajkumar
S/o Late. A.C. Lakshmana Murthy
Aged about 31 years
4. Sri. L. Umapathi @ L. Umesh Babu
S/o Late. A.C. Lakshmana Murthy
Aged about 27 years
All 1 to 4 are residing at:
Channasandra Village
Kyalanoor Post, Vemgul Hobli
Kolar Taluk & District-563 101.
5. Sri. Venkatesh
S/o Sri. Venkataramanappa
Major in age
Residing at No.260
Horamavu Jayanthi Nagar
Horamavu-R.M. Nagar Main Road
Bangalore-560 043. ... Respondents
(Vide order dated 14.03.2016 appeal against R-1 to R-4
stands disposed of; R-5 is served)
This R.F.A. is filed under Section 96 of CPC., against
the judgment and decree dated 03.10.2015 passed in
O.S.No.26114/2014 on the file of the XIII Addl. City Civil
and Sessions Judge, Mayohall Unit, Bengaluru. Dismissing
the suit for permanent injunction.
This R.F.A. having been heard and reserved on
27.8.2018 and coming on for pronouncement of judgment,
this day, the Court delivered the following:
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JUDGMENT
This appeal has been filed by the appellants seeking setting aside of the judgment and decree dated 03.10.2015 passed in O.S.No.26114/2014 on the file of the XIII Additional City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru dismissing the suit wherein relief of permanent injunction restraining defendant Nos.1 to 5 from interfering with the appellants' peaceful possession of the suit schedule property and order of restraint against the defendant Nos.1 to 5 from interfering with the appellants'/plaintiffs' commencement of construction of the project in the suit schedule property, were sought for. The parties are referred to by their ranks before the trial Court for the purpose of convenience.
2. The plaintiffs have stated their case as under:
The family members of defendant Nos.1 to 4 and plaintiffs had entered into a registered Joint 4 Development Agreement on 29.8.2013 which came to be registered on the same day in the office of the sub- Registrar with respect to the schedule property;
That at the time of entering into the Joint Development Agreement, payments had been made of an amount of `3,08,00,000/- as refundable deposit and it was further agreed that a sum of `92,00,000/- would be paid to defendant Nos.1 to 4 after getting all approvals from the competent authorities;
That defendant Nos.1 to 4 had failed to perform the obligations imposed as per the Joint Development Agreement, including payment of betterment charges, obtaining of khatha certificate etc. That though notices were issued to the defendants, as there was no response, the plaintiffs in exercise of their rights under the Joint Development Agreement proceeded to construct a shed in a portion of the suit schedule property;5
That when they were in the process of putting up of construction of the shed, the fifth defendant had entered into the suit schedule property and attempted to obstruct the construction of the plaintiffs;
That the fifth defendant had stated that he was representing defendant Nos.1 to 4 who had authorized to look after the suit schedule property.
The plaintiffs however having questioned defendant No.5 and not being satisfied with his explanation, had instituted suit O.S.NO.26114/2014 seeking for the reliefs as referred to supra in para No.1.
3. After issuance of notice, though defendant Nos.1 to 4 had been served, they remained absent and were placed ex-parte and it is only defendant No.5 who had put in his appearance before the Court but had subsequently failed to file his written statement and participate in the proceedings before the Trial Court.
4. The plaintiff had adduced evidence and got marked documents at Exs.P.1 to P.10 which included 6 the certified copy of the Joint Development Agreement, notices sent by the plaintiffs, photographs and complaint given to the police authorities regarding interference.
5. The Trial Court however, went on to frame issues and subsequently despite absence of cross examination of the plaintiffs or any leading of independent evidence by defendant No.5, had dismissed the suit.
6. The Trial Court though has noted execution of the Joint Development Agreement - Ex.P.1, it has disbelieved the assertion as regards payment to defendant Nos. 1 to 4 and has observed that mere recitals in Ex.P.1 to the effect that possession was handed over to the plaintiffs was not conclusive as regards the said fact. The Trial Court also observing that no injunction could be granted against the true owner, has dismissed the suit and records a finding that the plaintiffs had failed to prove that they were in lawful 7 possession as on the date of filing of the suit. Against the said judgment and decree the appellants are in appeal.
7. It is to be noticed at the outset that the counsel for the appellant has submitted to the Court that the appeal against defendant Nos.1 to 4 was to be dismissed as the plaintiff was confining the consideration of the appeal only as regards the relief sought for against defendant No.5. In view of the above, this Court by its order dated 14.3.2016, has disposed of the appeal against respondent Nos.1 to 4 as not pressed. Hence, the relief of injunction as regards interference of the defendants with the peaceful possession of the suit schedule property as well as the order of restraint as against defendants from interfering with the plaintiffs' construction activities is to be restricted to defendant No.5.
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8. Though notice was served on respondent No.5 in the present proceedings, there was no representation on his behalf.
9. Heard the learned counsel for the appellants.
10. The appellants contend that the execution of Ex.P.1 was not disputed and that the court below ought not to have entertained doubt as regards to the handing over of possession as well as passing of consideration in favour of the defendants in the light of absence of cross examination of the plaintiff or leading of independent evidence by the defendants. The appellants have also argued that the basis for the refusal of relief to the defendants was that there was no independent evidence as regards passing of consideration and as defendant Nos. 1 to 4 were in joint possession, no injunction could be issued as against the defendants, was erroneous and was liable to be set aside.
11. The points that arise for consideration are:
(a) Whether the judgment of the Trial 9 Court requires to be interfered with?
(b) What order?
12. I have perused the records and the pleadings and noted the submissions of the appellants.
13. The plaintiffs have produced Ex.P.1 which is a joint development agreement and there is a clear recital in Ex.P.1 as per clause 1.6 that the owners i.e. defendant Nos.1 to 4 have taken possession and as per clause 1.12 the owners had agreed not to interfere or interrupt the course of construction and development of the schedule property. A perusal of Ex.P.1 reveals the details as regards consideration have been enumerated at clause 2.2. The agreement being a registered agreement, there would be a presumption as regards its due execution as per Section 114 of the Indian Evidence Act. In the absence of any written statement, cross examination of PW.1, independent evidence by defendant Nos. 1 to 4, there is no reason to doubt the execution of the said document.
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14. The doubts expressed by the Courts as regards passing of consideration as well as handing over of possession is uncalled for and no circumstances are made out for disbelieving the contents of Ex.P.1.
15. Defendant Nos.1 to 4 are obviously bound by terms of Ex.P.1 and rights of owners would be subject to the terms of the contract as per Ex.P.1. The finding of the Court that no injunction could be issued against defendant Nos.1 to 4 as they were owners, is obviously at fault in view of the defendants themselves having curtailed their rights by virtue of Ex.P.1.
16. In the light of the above, the relief sought for against defendant No.5 ought to follow as a matter of course. The averments as against defendant No.5 is to the effect that defendant No.5 claiming to be representing defendant Nos. 1 to 4 was obstructing the construction activity. When the entitlement of relief as against defendant Nos.1 to 4 has been made out, relief against defendant No.5 ought to follow. The plaintiffs 11 have got marked complaint made to the Police authorities against interference, which has been marked as Ex.P.9.
17. Taking note of the fact that the primary allegation in the plaint has been made out as against defendant No.5 who is said to have obstructed the construction activities and on enquiry it has been asserted by defendant No.5 that he was representing the interest of defendant Nos. 1 to 4, it is clear that allegation of interference is primarily against defendant No.5. However, defendant No.5 has abstained from participating in the proceedings and hence allegations of the plaintiff as regards defendant No.5 has remained uncontroverted.
18. Hence, the transactions inter se were between the plaintiff and defendant Nos.1 to 4 who have remained exparte in the proceedings. The interference by defendant No.5 cannot be permitted. In the absence 12 of any material impugning the validity of the agreement by defendant Nos.1 to 4, defendant No.5 can not be permitted to obstruct or interfere with the rights of the plaintiffs.
19. Accordingly, the appeal is allowed and a decree is passed moulding the relief, restraining defendant No.5 from interfering with the peaceful possession and enjoyment of the plaint schedule properties by the plaintiffs in terms of the rights conferred under Ex.P.1 and defendant No.5 would be restrained from interfering with the rights of the plaintiff in carrying out construction in terms of Ex.P.1.
Sd/-
JUDGE RS/* Ct:mhp