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2022 Supreme(Online)(Kar) 50262
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON9BLE MR. JUSTICE M.I.ARUN
R.F.A. NO.761 OF 2017 (DEC-INJ)
BETWEEN:
MR. S. R. ANNAIAH REDDY
S/O LATE S. A. RAMASWAMY REDDY
AGED ABOUT 70 YEARS
R/AT NO.85/2, 2ND MAIN ROAD
5TH CROSS, SRINIVASA TEMPLE ROAD
MARUTHINAGAR EXTENSION
NEW EXTENSION
MADIWALA, BENGALURU 3 68
& APPELLANT
(BY SRI.N. R. NAIK, ADVOCATE)
AND:
1.
MRS. AMMAIAH
W/O LATE K. L. NARAYANA REDDY
AGED ABOUT 57 YEARS
2.
MR. ASHWIN
S/O LATE K. L. NARAYAN REDDY
AGED ABOUT 28 YEARS
BOTH RESPONDENTS 1 & 2 ARE
R/AT NO.414 DODDAKANNELLI
SARJAPURA ROAD, BENGALURU 3 35
3.
MR. H. D. SHIVE GOWDA
S/O LATE DASE GOWDA
2
AGED ABOUT 43 YEARS
4.
MRS. H. G. PUSHPA
W/O H.D. SHIVE GOWDA
AGED ABOUT 33 YEARS
RESPONDENT NOS. 3 & 4 ARE
R/AT NO.11, 12TH CROSS
GRAPE GARDEN, MARUTHINAGAR
MADIWALA, BENGALURU 3 68
& RESPONDENTS
(BY SRI.P. N. MANMOHAN, ADV. FOR R1 & R2;
SRI. V. ANAND ADVOCATE FOR R3 & R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER 47 RULE 1 READ WITH SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 22.02.2017
PASSED ON IA NO.IV IN OS.NO.2762/2014 ON THE FILE
OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE, (CCH-38)
BENGALURU, ALLOWING THE IA.NO.IV FILED UNDER
ORDER VII RULE 11 OF CPC., PRAYING TO REJECT THE
PLAINT.
THIS REGULAR FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
Though the matter is posted for admission, with the
consent of both the parties, the matter is taken up for final
hearing.
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2. Aggrieved by the order passed on I.A.IV in
O.S.No.2762/2014 dated 22.02.2017 by XXXVII Additional
City Civil and Sessions Judge (CCH-38), Bengaluru City,
wherein, the plaint filed by the plaintiff therein has been
rejected, the plaintiff therein has preferred this appeal.
3. For the sake of convenience, the parties are
referred to as per their status before the trial Court.
4. The plaintiff by way of registered sale deed dated
20.06.1997
sold
site
bearing
No.11
comprised
in
Sy.No.91/1C of Tavarekere village, Begur Hobli, Bengaluru
South Taluk to defendant No.1. However, it is contended
that what is in fact sold is site No.10 and not site No.11
and defendant No.1 is in possession of site No.10 and not
site No.11 and site No.11 is sold in favour of one
Sri.Nirmal Kumar Jayapuria. For the said reasons, the
plaintiff has filed the original suit with following prayers:-
<(i) For a declaration to declare that the plaintiff did
not had the subsisting right to convey the schedule
property to the first defendant in the registered
4
sale deed dated 20.06.1997 and thus the sale
deed is void and not binding on the plaintiff.
(ii)
For a declaration to declare that the Gift Deed
executed by the first defendant in the name of the
second defendant is nullity as the first defendant
did not had ownership to donate the schedule
property to the second defendant.
(iii)
Grant an order of permanent injunction restraining
the defendants, their agents, servants, officials,
attorneys or any person/s claiming under them or
through them in any way alienating, encumbering
creating any lien charge to whatsoever over the
schedule property.=
5. Thereafter, the plaintiff got the plaint amended
and substituted the prayers as mentioned below:-
(i)
<For
the
relief
of
permanent
injunction
restraining
the
defendants,
their
agents,
servants, officials or attorneys or any person/s
claiming under them or through them in any
way claiming any kind of damages in future
from the plaintiff on the basis of the sale deed
dated 20.06.1997 by showing the wrong site
number and boundaries in the above suit.
5
(ii)
For
an
order
of
permanent
injunction
restraining
the
defendants,
their
agents,
servants, officials or attorneys or any person/s
claiming under them or through them in any
way claiming any kind of reliefs against the
plaintiff on the basis of the fabricated gift deed
dated
29.01.2014
by
contracting
the
boundaries as against the sale deed dated
20.06.1997 making the plaintiff any way liable
for the same.
(iii)
Grant an order of permanent injunction
restraining
the
defendants,
their
agents,
servants, officials, attorneys or any person/s
claiming under them or through them in any
way alienating, encumbering, creating any lien
charge or whatsoever over the schedule
property.=
6. After the said amendment, the defendant No.1
filed an application under Order VII Rule 11 of CPC seeking
rejection of the plaint. The trial Court on the ground that
the prayers sought by the plaintiff in the original suit are of
the nature restraining the defendants from prosecuting a
6
case and such prayers cannot be allowed, has rejected the
plaint. Aggrieved by the same, the instant appeal is filed.
7. During the course of the appeal, the appellant
has filed I.A.1/2021 seeking amendment of the plaint as
under:-
<To be insert para No.7(a) after para no.7 as follows:-
7(a)
The plaintiff submits that the suit has been filed for
declaration and subsequently the said prayer was
withdrawn by filing amended application and
deleted. The permanent injunction has been
sought against the defendants from the relief of
directing the defendants not to initiate any
proceeding in pursuance of the sale deed and gift
deed executed between the defendants and also
directing them not to claim any future damages
from the plaintiffs. As per the plaint averment the
plaintiff has e
