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IN THE HIGH COURT OF KARNATAKA
H.P. Sandesh, J.
A. Rajendra Kodgi & Anr. – Appellants
Versus
A. Sudhir Kodgi & Ors. – Respondents
M.F.A. No. 6172 of 2021
Decided On : 20-01-2024
TEMPORARY INJUNCTION - PARTITION AND JOINT FAMILY PROPERTY - Order 43, Rule 1(r) of Code of Civil Procedure - The court discussed the provisions of Order 43, Rule 1(r) of the Code of Civil Procedure, which allows appeals against orders granting or refusing temporary injunctions. The court emphasized the necessity of establishing a prima facie case, balance of convenience, and the potential for irreparable harm. The court interpreted these provisions to affirm the trial court's decision to grant a temporary injunction, preventing the alienation of joint family properties until the suit's resolution, thereby protecting the interests of the plaintiff against potential misappropriation by the defendant.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of joint family properties, alleging that the defendant, his elder brother, was misappropriating family funds and attempting to alienate the properties without consent. The plaintiff sought a temporary injunction to prevent such actions until the suit was resolved.
Finding of the Court:
The trial court found that the plaintiff had established a prima facie case, the balance of convenience favored the plaintiff, and that failure to grant the injunction would result in irreparable harm. The court allowed the temporary injunction against the defendant's actions regarding the properties.
Issues: 1. Whether the trial court erred in granting a temporary injunction against the defendant? 2. Did the plaintiff establish a prima facie case for the injunction? 3. Was there a balance of convenience favoring the plaintiff?
Ratio Decidendi: The court held that the trial court properly exercised its discretion in granting the temporary injunction based on the evidence presented, which indicated a likelihood of misappropriation by the defendant and the need to protect the joint family properties until the matter could be fully adjudicated.
Final Decision: The appeal was dismissed, affirming the trial court's order granting the temporary injunction.
Based on the provided legal document, the key points are as follows:
The case involves a civil property dispute concerning joint family properties, with the plaintiff seeking partition and separate possession [judgement_subject].
The court reaffirmed the principles for granting temporary injunctions, emphasizing the need to establish a prima facie case, balance of convenience, and potential for irreparable harm [judgement_subject].
The trial court granted a temporary injunction to prevent the alienation or encumbrance of certain properties until the final disposal of the suit, after finding that the plaintiff had established a prima facie case, that the balance of convenience favored the plaintiff, and that irreparable harm would occur without the injunction (!) (!) .
The appeal challenged this order, with the appellants arguing that the trial court erred in granting the injunction, especially since the properties in question were allegedly purchased with their own funds, and certain documents (such as release deeds) had been executed years prior, which they contended should bar the grant of interim relief (!) (!) (!) .
The appellants also contended that properties inherited from the maternal side or acquired through individual efforts should not be treated as joint family properties, and that the order of injunction was unwarranted in the absence of a prayer for cancellation of certain registered deeds or a specific declaration of title (!) (!) (!) .
The respondent/plaintiff maintained that the properties were acquired from joint family funds, and that the defendant’s actions, including misappropriation and attempts to alienate the properties, justified the injunction to prevent irreparable harm (!) (!) (!) .
The appellate court examined the evidence and the principles governing the exercise of discretion in granting injunctions, concluding that the trial court did not err in its findings, and that the balance of convenience favored maintaining the status quo until the suit was resolved (!) (!) .
The appellate court ultimately dismissed the appeal, affirming the order of the trial court, and held that the order was reasonable and justified based on the material on record (!) (!) .
In summary, the court’s decision was based on the assessment that the plaintiff had demonstrated a prima facie case, that the potential for irreparable harm existed, and that the balance of convenience favored preserving the properties in question pending final adjudication.
JUDGMENT
H.P. Sandesh, J.
Heard the learned Senior counsel for the appellants and learned Senior counsel for the respondent No.1.
2. This miscellaneous second appeal is filed under Order 43, Rule 1(r) of Code of Civil Procedure challenging the impugned order passed on I.A.No.II dated 24.09.2021 allowing the application and restraining the appellants from alienating, encumbering or creating charge over the plaint 'A' and 'B' schedule properties or any portion there of, till the disposal of the suit.
3. The factual matrix of the case of the respondent No.1/plaintiff before the Trial Court in the suit filed for the relief of partition and separate possession is that, defendant Nos.1 and 2 are his brother. 'A' and 'B' schedule properties belong to their joint undivided family. The suit schedule properties which were inherited by their ancestors and some of the items of family properties are sold for a valuable consideration by the family members and the sale proceeds derived from family properties are invested in the lands and shares by the family for the benefit and welfare of their entire undivided joint family. The funds derived from the family properties on the sale proceeds and other ancestral nucleus, they purchased the properties described in 'A' schedule.
3. The defendant No.1 being the eldest member and yajaman of the joint family is managing the family properties. Either himself nor defendant Nos.1 and 2 have no independent source of income other than family income and have fully dependent on the income derived from the family properties. Defendant No.1 is maintaining and supervising the entire family properties with regard to construction of apartment with the assistance of him and defendant No.2. It is contended that the defendant No.1 himself participated in all the sale transactions of the family properties and entire sale proceeds are invested to acquire properties described in 'A' schedule properties on behalf of entire family. Even the properties are purchased in his name, the defendant Nos.1 and 2 as per their convenience and the entire fund to purchase the properties used out of the income derived from the family properties, therefore, all the schedule properties are joint family properties. It is also contended that for convenience and for management of the family and their properties smoothly, himself and defendant No.2 have executed general power of attorney in good faith. In the beginning of 2017, the defendant No.1 has started to misappropriate the family funds, in order to get wrongful gain to himself by defrauding him and defendant No.2. After they came to know the illegal and unlawful intention of defendant No.1, they constrained to cancel the power of attorney by issuing notice dated 04.03.2017 by registered post to his permanent residential address and also by way of paper publication. Prior to issuing legal notice to cancel the power of attorney executed by him, himself and defendant No.2 have orally informed the defendant No.1 that he should not do any acts on their behalf on the strength of said power of attorney. Therefore, from the date of notice about cancellation of power of attorney, defendant No.1 has no right or authority to represent on their behalf in respect of the suit schedule properties or any properties belongs to their family. Even though the said power of attorney is cancelled and if he performs any acts on the said power of attorney, such act or things would not be binding on them.
4. It is also the case of the plaintiff that defendant No.1 leased out the premises bearing item No.4 of the plaint 'A' schedule premises on a monthly rent of Rs.1,08,333/- to defendant No.3 and collecting monthly rent and misappropriated the said money. Without their consent, defendant No.1 schemed to construct building in item Nos.1 and 2 of the plaint 'A' schedule properties, in order to damage the family properties. If he carries out the same, it would materially affect the enjoyment of the joint family. If
AI
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