Writ Petition No. 5365 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:15681 WP No. 5365 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 5365 OF 2024 (GM-CPC) BETWEEN: 1. SMT PALLAVI D/O NARAYANASWAMY AGED ABOUT 34 YEARS R/AT GADDEKANNUR TAMAKA POST, KASABA HOBLI KOLAR-563103. 2. SRI. RISHI KUMAR SURESH S/O SURESH KRISHNAPPA AGED ABOUT 49 YEARS R/AT NO.400/1, 2ND BLOCK 14TH CROSS, BENGALURU-560032. Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA 3. SMT. USHARANI W/O MAHESH M.G. AGED ABOUT 43 YEARS R/AT NO.7, 2ND CROSS MARAPPA THOTA, J.C.NAGAR BENGALURU-560006. …PETITIONERS (BY SRI. VENUGOPAL M S., ADVOCATE) AND: 1. SRI N TAMIL CHITHAN S/O LATE A NATARAJAN AGED ABOUT 54 YEARS R/AT NO.15, BAGDHAVACHALAM STREET - 2 - NC: 2025:KHC:15681 WP No. 5365 of 2024 WEST TAMBRAM, CHENNAI TAMIL NADU-600045.
Legal Reasoning
2. SRI. KARTHIK MELYAPPAN S/O LATE A.V.M. MURUGAN AGED ABOUT 53 YEARS R/AT NO.9, AVM AVENUE DR. RADHAKRISHNAN SALAI MYLAPUR, CHENNAI-04. 3. SMT. RAJANI MURUGAN W/O LATE A.V.M. MURUGAN AGED ABOUT 79 YEARS R/AT NO.9, AVM AVENUE DR.RADHAKRISHNAN SALAI MYLAPUR, CHENNAI-04. 4. SMT. LATA MURUGAN D/O LATE A.V.M. MURUGAN AGED ABOUT 54 YEARS R/AT NO.9, AVM AVENUE DR.RADHAKRISHNAN SALAI MYLAPUR, CHENNAI-04. 5. SRI.N. KRISHNAPPA S/O NARASAPPA AGED ABOUT 54 YEARS R/AT HANUMANTHAPURA VILLAGE KASABA HOBLI CHIKKABALLAPURA-562101. 6. SRI. YELLAPPA S/O NANJAPPA AGED ABOUT 64 YEARS R/AT GANGAMMAGUDI ROAD CHIKKABALLAPURA TOWN-562101. - 3 - NC: 2025:KHC:15681 WP No. 5365 of 2024 7. SRI.B. VENKATESH S/O N. BEERAPPA AGED ABOUT 51 YEARS R/AT CHEEMASANDRA BENGALURU-560049. 8. SRI. VAGEESH RAJAPPA SETTY S/O LATE RAJAPPA SETTY AGED ABOUT 53 YEARS R/AT NO.266,GROUND FLOOR 5TH MAIN, 16TH CROSS SHAKARANAGARA, BENGALURU-560092. (BY SMT.NAYANA TARA B.G., ADVOCATE FOR R1: V/O DATED: 21.02.2024 NOTICE TO R2 TO R8 ARE DISPENSED WITH) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED: 18.01.2024 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC CHIKKABALLAPURA IN O.S.NO.375/2020 VIDE ANNEXURE-L KEEPING I.A.NO.9 PENDING AT ANNEXURE –K AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD - 4 - NC: 2025:KHC:15681 WP No. 5365 of 2024 ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed by the petitioners-defendant Nos.4, 7 and 8 challenging the order dated 18.01.2024 passed by the II Addl. Senior Civil Judge and JMFC, Chikkaballapura in O.S.No.375/2020, whereby the defendants or anybody claiming under the defendants are restrained from alienating the suit properties until further orders on I.A.No.9. 2. The plaintiff filed the suit for declaration, cancellation and injunction. Along with the plaint, the plaintiff filed I.A.Nos.1 and 2 under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction. On service of suit summons, the defendants appeared through counsel. After hearing the parties, the Trial Court by order dated 22.04.2021 has dismissed I.A.Nos.1 and 2 filed by the plaintiff and the said order has attained finality. On the basis of the pleadings of the parties, the Trial Court has framed issues and matter has been posted for evidence. - 5 - NC: 2025:KHC:15681 WP No. 5365 of 2024 Thereafter, on 04.01.2024, I.A.No.9 under Order 39 Rules 1 and 2 of CPC came to be filed by the plaintiff seeking an order of temporary injunction restraining the defendants, their agents, LRs, assignees, contractors, servants, or anyone claiming under them or on their behalf from alienating/encumbering the suit properties pending disposal of the suit. The Trial Court, by impugned order dated 18.01.2024 has restrained the defendants or anybody claiming under them from alienating the suit properties till further order on I.A.No.9. Being aggrieved by the said order, the present petition is filed. 3. The learned counsel for the petitioners-defendant Nos.4, 7 and 8 has contended that earlier application i.e., I.A.No.1 filed by the plaintiff under Order 39 Rules 1 and 2 of CPC has been dismissed by the Trial Court on 22.04.2021 and the same has attained finality. Thereafter, when the matter was posted for evidence, the plaintiff has filed I.A.No.9 seeking for an order of temporary injunction to restrain the defendants from alienating the suit - 6 - NC: 2025:KHC:15681 WP No. 5365 of 2024 properties. There is no ground made out by the plaintiff to file a subsequent application and there is no any changed circumstances. When earlier application i.e., I.A.No.1 filed by the plaintiff under Order 39 Rules 1 and 2 has already been dismissed and the same has attained finality, again I.A.No.9 filed by the plaintiff under Order 39 Rules 1 and 2 of CPC, is not maintainable and the same is hit by principles of res-judcata. The Trial Court without application of mind has passed the impugned order.
Decision
Hence, he sought for allowing the writ petition. 4. Per contra, the learned counsel for respondent No.1- plaintiff has contended that the writ petition is not maintainable on an order passed by the Trial Court under Order 39 Rules 1 and 2 of CPC and the defendants have remedy of appeal under Order 43 Rule 1(r) of CPC. Secondly, she contended that I.A.No.9 is filed seeking an order of temporary injunction against the defendants only in respect of restraining the defendants from alienating or encumbering the suit properties on the basis of changed - 7 - NC: 2025:KHC:15681 WP No. 5365 of 2024 circumstances. In the affidavit accompanying the application, it is clearly stated that the plaintiff has learnt that defendant No.4 has entered into certain documents in favour of third parties and further taking advantage of the rejection of earlier application (I.A.No.1), defendant No.4 is making attempts to alienate the suit properties in favour of third parties. Thirdly, she contended that there is no bar under Order 39 Rules 1 and 2 of CPC to file a subsequent application seeking an order of temporary injunction on the basis of the changed circumstances and it is not hit by principles of res-judicata. In support of her contention, she has relied upon the decision of the High Court of Delhi in the case of Rakesh Madan & Another vs. Rajashthan Financial Corporation & Others (2009 (108) DRJ 15). Lastly, she contended that the Trial Court has not disposed of I.A.No.9 and it is still pending. The petitioners- defendants have not filed any application seeking for vacating the order dated 18.01.2024 or filed any objections to I.A.No.9. Since I.A.No.9 is pending, the defendants can agitate the matter before the Trial Court. - 8 - NC: 2025:KHC:15681 WP No. 5365 of 2024 There is no any error in the impugned order passed by the Trial Court. Hence, she sought for dismissal of writ petition. 5. Heard the learned counsel for the parties. Perused the writ papers. 6. It is not in dispute that the plaintiff has filed the suit for declaration, cancellation and injunction. Along with the plaint, the plaintiff filed I.A.Nos.1 and 2 under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction. After hearing the parties, the Trial Court has dismissed the said applications on 22.04.2021 and the same has attained finality. Thereafter, the Trial Court has framed issues and the matter was set down for evidence. At that time, the plaintiff filed I.A.No.9 under Order 39 Rules 1 and 2 of CPC seeking for an order of temporary injunction. In the affidavit accompanying the application, it is clearly stated that the plaintiff has learnt that defendant No.4 has entered into certain documents in favour of third - 9 - NC: 2025:KHC:15681 WP No. 5365 of 2024 parties and further taking advantage of the rejection of the earlier application (I.A.No.1) filed by the plaintiff, defendant No.4 is making attempts to alienate the suit properties in favour of third parties during the pendency of the suit. The said application is filed on 04.01.2024 before the Trial Court. For objections by the defendants to I.A.No.9, the matter was adjourned to 18.01.2024. However, on 18.01.2024, no objections were filed. The Trial Court on 18.01.2024 has passed the impugned order restraining the defendants or anybody claiming under them from alienating the suit properties till further order on I.A.No.9. 7. After the impugned order dated 18.01.2024 has been passed by the Trial Court, objections to I.A.No.9 has been filed by the defendants. I.A.No.9 is still pending and no final order has been passed on I.A.No.9. 8. In view of the above and in the interest of justice, the following order is passed: NC: 2025:KHC:15681 WP No. 5365 of 2024 - 10 - ORDER a) b) The writ petition is disposed of. After hearing both the parties, the Trial Court is directed to dispose of I.A.No.9 filed by the plaintiff under Order 39 Rules 1 and 2 of CPC in accordance with law, on the next date of hearing. c) The impugned order dated 18.01.2024 passed by the Trial Court shall remain in force, till the disposal of I.A.No.9. d) All the contentions of the parties are kept open. All pending I.As. in this writ petition, if any, are dismissed accordingly. Sd/- (H.T. NARENDRA PRASAD) JUDGE DM LIST NO.: 1 SL NO.: 46