M.F.A.No.7055/2013

1

M

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23^RD DAY OF FEBRUARY 2021

BEFORE

THE HON’BLE MRS JUSTICE K.S.MUDAGAL

MISCELLANEOUS FIRST APPEAL NO.7055/2013 (CPC)

BETWEEN:

1.

VITTAL GURUDAS PAI

SINCE DECEASED BY LRS

a. SMT.V.AMRITHKALA PAI

W/O LATE V.GURUDAS PAI

AGED ABOUT 44 YEARS

b. V.ABHISHEK ANJAN PAI

S/O LATE V.GURUDAS PAI

AGED ABOUT 17 YEARS

c. V.ALANKAR PAI

S/O LATE V.GURUDAS PAI

AGED ABOUT 14 YEARS

A1(b) & A1(c) BEING MINORS

ARE REP. BY THEIR MOTHER/

NEXT FRIEND A1(a)

ALL ARE R/AT FLAT NO.7

III FLOOR, BALAJI ENCLAVE

SITE NO.1/1, YELLUKUNTE

HOSAPALYA MAIN ROAD

HSR LAYOUT, BENGALURU – 560 068

(AMENDMENT CARRIED OUT

V/O DATED 25.10.2018)

2.

AMARA SREEKRISHNA BALAJI RAO

S/O AMARA VENKATESHWARALU

AGED ABOUT 37 YEARS

R/AT NO.48/8, 3^RD ‘B’ MAIN

ANIL NURSERY, NEAR AYYAPPA

R

M.F.A.No.7055/2013

2

M

SWAMY TEMPLE

VENKATAPURA LAYOUT

KORAMANGALA

BENGALURU – 560 034

…APPELLANTS

(BY SRI PRADEEP H.S. FOR SRI M.N.RAGHU, ADVOCATES)

AND:

1.

M/S LEPAKSHI CONSTRUCTION CORPORATION

(PARTNERSHIP FIRM)

NO.298/18, SAI RAM SOUDHA

11^TH ‘B’ CROSS, I PHASE

J.P.NAGAR, BENGALURU – 560 078

REP.BY R2 & R3 AS ITS PARTNERS

2.

SMT.LAVANYA C

W/O CHALSANI

AGED ABOUT 50 YEARS

NO.298/18, SAI RAM SOUDHA

11^TH ‘B’ CROSS, I PHASE

J.P.NAGAR, BENGALURU – 560 078

3.

CHALSANI R.B.

S/O LATE RAMALINGAIAH

AGED ABOUT 55 YEARS

NO.298/18, SAI RAM SOUDHA

11^TH ‘B’ CROSS, I PHASE

J.P.NAGAR, BENGALURU – 560 078

…RESPONDENTS

(BY SRI M.N.SATYARAJ, ADVOCATE FOR R3;

R1 & R2 SERVED AND UNREPRESENTED)

THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC

READ WITH SECTION 104(i) OF CPC READ WITH ORDER XLIII

RULE 1(r) READ WITH ORDER XLI RULES 1 & 2 OF CPC PRAYING

TO SET ASIDE THE ORDER DATED 02.08.2013 PASSED BY VIII

ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-15)

BENGALURU IN MISC.NO.38/2011 FILED UNDER ORDER XXXIX

RULE 2A OF CPC.

THIS MFA HAVING BEEN HEARD AND RESERVED ON

01.02.2021 AND COMING ON FOR PRONOUNCEMENT OF

JUDGMENT

THIS

DAY,

THE

COURT

THROUGH

VIDEO

CONFERENCE/PHYSICAL HEARING DELIVERED THE FOLLOWING:

M.F.A.No.7055/2013

3

M

J U D G M E N T

Aggrieved by the order of the trial Court dismissing

their application against the defendants under Order XXXIX

Rule 2A of CPC, the plaintiffs have preferred the above

appeal.

2.

The appellants were the plaintiffs and the

respondents were the defendants in O.S.No.4191/2007

before the trial Court. For the purpose of convenience, the

parties will be referred to henceforth with their ranks before

the trial Court.

Brief facts of the case:

3.

Plaintiffs filed O.S.No.4191/2007 against the

defendants before the VIII Additional City Civil & Sessions

Judge, Bengaluru for declaration that the registered

memorandum of understanding dated 30.04.2004 entered

into

between

them

and

the

defendants

for

joint

development of the suit schedule property and the

registered power of attorney dated 30.04.2004 relating to

the suit schedule property are revoked, rescinded and

terminated and that the defendants have no right to act

and represent the plaintiffs in respect of the same. They

M.F.A.No.7055/2013

4

M

also sought direction to the defendants to deliver the

original title deeds of the schedule property, permanent

injunction against interference in their possession and

enjoyment and against alienation of the suit schedule

property.

4.

Along with the suit, the plaintiffs filed I.A.Nos.1

and 2 seeking injunction to restrain the defendants from

alienating and changing the nature of the suit schedule

property. The trial Court issued emergent notice of

I.A.Nos.1 and 2 and suit summons to the defendants.

5.

Defendants appeared through their Counsel. On

two hearing dates their Counsel undertook that the

defendants will