GOWTHAM. S. P v. K. M. PREETHAM

(BY SRI. BHAT SHANKAR SHIVARAM, ADVOCATE FOR R1; VIDE ORDER DATED:7/1/2025 NOTICE TO R2 TO R6 IS DISPENSED WITH) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED:01.10.2024 PASSED ON I.A. NO.III IN O.S.NO.29/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, ALLOWING THE I.A. NO.III FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:6487 MFA No. 7980 of 2024 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This appeal is filed by the appellant, the proposed defendant No.6 in the Trial Court, under Order 43 Rule 1(r) of CPC, for setting aside the order of injunction granted by the Trial Court in O.S.No.29/2023 dated 01.10.2025.

2. Heard the arguments of learned counsel for the appellant and learned counsel for the respondents.

3. The appellant was the proposed defendant in the Trial Court. The respondents are the plaintiffs before the Trial Court. The ranks of the parties are retained for the sake convenience.

4. The case of the plaintiff before the Trial Court is that there was a suit filed for partition and separate possession in respect of 3 schedule items of the properties and an ad-interim injunction was granted against the defendant Nos.1 to 5 in the suit. Subsequently, defendant Nos.1 to 5 appeared and filed written statement, where the defendant No.1 said to have alienated one of the item in the schedule property to the proposed defendant No.6/the present appellant. Again even prior to the filing of the suit, after it came to the knowledge of - 4 - NC: 2025:KHC:6487 MFA No. 7980 of 2024 the plaintiff the plaintiff filed the interlocutory application under Order 1 Rule 10 of CPC to implead the proposed defendant No.6, as additional defendant No.6 in the suit. A notice was initially issued and he was served and unrepresented. However, the plaintiff also filed another interlocutory application under Order XXXIX Rules 1 and 2 of CPC, for directing the proposed defendant No.6 not to alienate the schedule property. Both the interlocutory applications said to be heard. Subsequently, when the proposed defendant No.6/present appellant appeared and interlocutory application under Order 9 Rule 7 of CPC for setting aside the ex-parte judgment. After hearing the arguments, the Trial Court passed the impugned order on I.A.No.3 under Order XXXIX Rules 1 and 2 of CPC directing the proposed defendant No.6 from restraining the defendant No.6 from alienating the schedule property, till disposal of the suit. Hence, the appellant proposed defendant No.6, is before this court. In view of the filing of the application leave has been granted.

5. Learned counsel for the appellant has contended that on prima facie the tenure of the record is wrong when the two applications were filed under Order 1 Rule 10 of CPC to implead - 5 - NC: 2025:KHC:6487 MFA No. 7980 of 2024 this appellant as defendant No.6 which was not allowed and it was kept pending but injunction was granted against him not to alienate the property which is erroneous, done without impleading the party, the injunction has been granted against the non party to the suit. Therefore, until impleading him as party, no injunction can be granted against him. Hence, prayed for setting aside the order.

6. Learned counsel for the respondents supported the order of the Trial Court and contended that previously there was injunction operating against defendant Nos.1 to 5 and it came to their knowledge that defendant No.1 sold the property to defendant No.6 who is none other than the son of defendant No.1 . Therefore, the trial court passed the order, on the ground, if the interlocutory application is not allowed, there is apprehension of alienation of the schedule property by defendant No.6, is not ruled out. Therefore, it leads to multiplication of litigation and hence pending consideration of impleading application, injunction has been granted and there is no wrong, in the order. Hence, prayed for dismissing the same. - 6 - NC: 2025:KHC:6487 MFA No. 7980 of 2024

7. Upon hearing the arguments, perused the records, the only point arises for my consideration is, Whether the Trial Court committed in allowing interlocutory application granting injunction against proposed defendant No.6/the appellant without impleading him as party?

8. On perusal of the record, it is admitted fact, as per the defense statement in the Trial Court, the schedule property is said to be sold even prior to the filing of the suit. The suit came to be filed for partition and separate possession on

4.9.2023. Whereas the defendant No.1, said to have alienated the property by way of gift to the proposed defendant on

25.7.2023 prior to the filing of the suit. The same came to the knowledge of the plaintiff, he has rightly filed an application to implead the proposed defendant No.6, as party. However, the said interlocutory application was kept pending. The connected interlocutory application for injunction has been allowed by the Trial Court. Admittedly, the injunction is granted against the 3rd party who is not party to the suit and until and unless he is impleaded as the party to the suit, the Trial Court ought to - 7 - NC: 2025:KHC:6487 MFA No. 7980 of 2024 have not granted injunction as against defendant No.6. That apart, the order sheet of the Trial Court produced wherein it clearly reveals when the notice has been ordered and it was heard on the proposed defendant, he was unrepresented. The Trial Court ought to have allowed the application under Order 1 Rule 10 of CPC impleading proposed defendant No.6 as additional defendant No.6, but without doing so, posting the matter for further hearing on the next day, the defendant No.6 once appeared and filed his objection, Trial Court ought to have passed the order on interlocutory application under Order 1 rule 10 of CPC. Later, proceeded to pass the order under Order XXXIX Rules 1 and 2 of CPC, to a non-party to the suit, injunction has been granted, even when interlocutory application is already pending before the court. Such being the case, the order of the Trial Court requires to be set aside for the purpose of remitting back the matter for fresh consideration only after disposal of interlocutory application filed under order 1 and Rule 10 of CPC. Hence, I proceeded to pass the following order, Accordingly, the appeal is here allowed. - 8 - NC: 2025:KHC:6487 MFA No. 7980 of 2024 The order of the Trial Court granting injunction against the proposed defendant No.6 appellant is hereby set aside. The matter is remitted back for fresh consideration by disposing the interlocutory application filed under Order 1 Rule 10 and then Trial Court to pass the order. Considering the facts and circumstances of the case, the injunction order granted regarding status quo ordered by this court is continued, until disposal of the interlocutory application by the Trial Court. All the pending interlocutory applications before this court are hereby not considered and hence disposed of. Sd/- (K.NATARAJAN) JUDGE AKV List No.: 1 Sl No.: 23 CT:SK