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2019 Supreme(Kar) 1753
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.SOMASHEKAR, J.
SMT. NARASAMMA S/O LATE ANANTHA RAMAIAH - Petitioner
Vs.
SMT. AKKAMMA W/O LATE HANUMANTHARAYAPPA - Respondent
MFA NO.3620 OF 2016 (CPC)
Decided On : 22-07-2019
For the Petitioner: SRI. B. S. NAGARAJ, ADV.
For the Respondent: SRI. M. RAMA MOHAN, ADV. FOR M/S. RAMA MOHAN ASSTS., SRI. VISHWANATH R. HEGDE, ADV., SRI. M. S. VARADARAJAN, ADV.
Headnote:
Code of Civil Procedure, 1908 – Section 151, Order 39 Rules 1 and 2 – Order of temporary injunction – Application I.A. is filed by appellants seeking to grant an ad-interim order of temporary injunction restraining defendants – respondents from alienating items of suit schedule properties as mentioned in said application – Present appeal is directed against order passed by Senior Civil Judge & JMFC, Devanahalli, in O.S. on I.A.No.1 filed by appellants / plaintiffs under Order 39 Rules 1 and 2 read with Section 151 CPC. – Said application was filed seeking for an ad interim order of temporary injunction restraining defendants from changing nature of land, alienating suit schedule properties, creating encumbrances, charge, lien, etc., in any manner over suit schedule properties depicted therein –Whether plaintiff has a prima facie case; Whether balance of convenience is in favour of plaintiff; and Whether plaintiff would suffer irreparable injury if prayer for interim injunction is disallowed – Held, Prima facie case and prima facie title are not same and are distinct. – It is not desirable to record decision on merits when deciding prima facie case. – Prima facie case really means that there is a case which required trial and that case is not one based on erroneous and vexatious grounds. – When deciding question prima facie case, it is generally not desirable and open for court to record a decision on merits of pleas taken in suit and those findings will not have any binding effect on parties at time of final hearing of case and it shall always be open to raise respective contentions and it is for court to decide according to law at that stage. – Need for such protection has, however, to be weighed against corresponding need of defendant to be protected against injury resulting from preventing him exercising legal right for which he could not adequately be compensated. – Court must weigh need of interim injunction and determine where balance of convenience lies in order to protect plaintiff, while granting an interim injunction in his favour – Jurisdiction of court to interfere with an order of interim or temporary injunction is purely equitable and therefore, court on being approached, apart from other consideration, will also look at conduct of party invoking jurisdiction of court. – Court may refuse to interfere unless his conduct was free from blemish. Since relief is wholly equitable in nature, party invoking jurisdiction of court has to show that he himself was not at fault and that he himself was not responsible for bringing out state of things complained of and further that he was not unfair or inequitable in his dealing with party against whom he was seeking relief. – Conduct of plaintiff must be fair and honest. – These considerations will arise not only in respect of person who seeks an order of injunction but also defendant who approaches court for vacating adinterim or temporary injunction order already granted in pending proceedings. – Court cannot dwell into issues relating to documents placed by either plaintiffs or defendants. – Same requires to be tested before court below where parties to proceedings are required to establish their rights by preponderance of probabilities. – It does not require to elaborate all contents made in documents placed by both plaintiffs and defendants. – Same has to be appreciated by court below where case is pending between parties, on merits of matter. – When suit in O.S. filed for partition and separate possession in respect of suit schedule properties is very much pending before court below, court find it appropriate for parties to let in evidence and establish their case before very court. – Order on I.A.No.1 in O.S. passed by Senior Civil Judge and JMFC, Devanahalli, under Order 39 Rules 1 and 2 read with Section 151 CPC does not suffer from any infirmity and also does not appear to be either arbitrary, capricious and perverse. – Appeal Dismissed.
JUDGMENT :
This appeal coming on for admission along with I.A.Nos.1 of 2016, 1 of 2018, 1 of 2019 and 2 of 2019, with the consent of the learned counsel for both the parties, is taken up for final disposal.
The application I.A.No.1 of 2016 is filed by the appellants seeking to grant an ad-interim order of temporary injunction restraining the defendants – respondents from alienating the items of suit schedule properties as mentioned in the said application.
I.A.No.1 of 2018 is a further application filed by appellants seeking for an ad-interim order of temporary injunction restraining the respondents from putting up construction and changing the nature of the land with respect to the items of suit schedule properties as mentioned in the said application.
I.A.No.1 of 2019 is an application filed by three applicants who claim that they have an interest in the properties and hence they are proper and necessary parties to the litigation and thereby seeking that they be impleaded in this appeal as Respondents Nos.18 to 20.
I.A.No.2 of 2019 is an application filed by the impleading applicants who propose to be impleaded as Respondents Nos.18 to 20, seeking to vacate the order of status quo passed by this court in respect of Item Nos.5, 10 and 14 of the suit schedule properties in respect of which they are the owners.
2. The present appeal is directed against the order passed by the Senior Civil Judge & JMFC, Devanahalli, in O.S.No.854/2015 on I.A.No.1 filed by the appellants / plaintiffs under Order 39 Rules 1 and 2 read with Section 151 CPC. The said application was filed seeking for an ad interim order of temporary injunction restraining the defendants from changing the nature of the land, alienating the suit schedule properties, creating encumbrances, charge, lien, etc., in any manner over the suit schedule properties depicted therein.
The said I.A.No.1 came to be allowed in part in respect of Item No.4 and Item Nos.7 to 9 against Defendants 1 to 9 who are arraigned as respondents herein. However, the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against Defendant No.17 stood dismissed.
The present appeal is filed challenging the impugned order praying to set aside that portion of the order rejecting the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against defendant No.17.
3. The factual matrix of this appeal is as under:
The Plaintiffs/Appellants herein filed a suit in O.S.No.854/2015, for partition and separate possession of their respective one third share over the 14 suit schedule properties depicted therein. It was the case of the plaintiffs that themselves and defendants 1 to 16 were joint family members and the suit schedule properties were joint family properties and as such partition was not effected. It was their further case that defendants were trying to alienate the suit schedule properties by changing the nature of the agricultural lands and were also trying to create third party rights and also refused to give the plaintiffs’ share. Therefore, they had filed a suit and an application for temporary injunction.
However, defendants 1 to 6 and 8 filed objections denying the case of the plaintiffs. According to them, Item No.4 and 7 to 9 were only ancestral joint family properties; Item Nos. 1 and 2 were acquired by Hanumantharayappa, granted to him under LRF No.12 and 13/197475; further that Item No.3 did not belong to either plaintiffs or defendants and that it belonged to one Subbegowda who was not impleaded as a party to the suit; Item Nos.5 and 10 did not belong to either plaintiffs or defendants and it belonged to one B. Eregowda and Anjinappa; Item Nos.11 to 13 were purchased by Hanumantharayappa under sale deed dated 20.05.1968; Item No.14 was the self acquired property of the second defendant which was purchased as on 30.06.2005. But however, that the plaintiffs have filed the suit suppressing all these material facts. Further, that one Anantharamaiah had acted as a consenting witness in re
