Elizabeth vs Mariyamma And Ors

The appellant-plaintiff has filed the present Miscellaneous First appeal against the order dated 20.09.2016 passed on I.A.No.3 in R.A.No.83/2016 on the file of the VIII Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru, under Order XXXIX Rule 1 and 2, dismissing the application filed by the plaintiff-appellant restraining the respondent No.8/defendant No.8 by changing the nature of the suit property by developing or putting up any construction on item No.1 of the schedule property.

The present appellant, who is the plaintiff before the trial court earlier had filed O.S.No.52/2004 for partition and separate possession. After contest, the suit came to be dismissed on 13.12.2007 on the ground that the suit was not maintainable for partial partition. The same was challenged in R.A.No.19/2008 before the lower Appellate Court. The appeal came to be dismissed on 31.11.2008. Being aggrieved by the concurrent finding of facts, the appellant filed RSA No.466/2009 before this Court. In the said appeal the appellant/plaintiff filed an application under Order 6 Rule 17 of CPC for amendment i.e., for inclusion of all the properties of the joint family. Further the plaintiff filed another application under Order 41 Rule 27 of Code of Civil Procedure for production additional documents. This Court dismissed the RSA 466/2009 on 23.01.2013. Thereafter, the present suit O.S. No.841/2014 was filed for partition and separate possession by contending that the suit schedule properties are the joint family properties of the plaintiff and defendants and plaintiff is entitled for a share.

Except defendant No.8, other defendants have not filed any written statement. The 8th defendant in his written statement denied the plaint averments and contested the suit by stating that the 2nd suit filed by the plaintiff is not at all maintainable in view of the dismissal of the earlier suit which was confirmed by the judgment of this Court in RSA No.466/2009, therefore sought for dismissal of the suit. The plaintiff has also filed an application for temporary injunction before the trial court restraining the defendant No.8 from putting up any construction. The trial court by the order dated 17.6.2014 granted temporary injunction and directed the parties to maintain status quo. Thereafter the 8th defendant filed an application under order 7 Rule 11 of Code of Civil Procedure for rejection of the plaint.

After hearing both the parties, the trial court by the order dated 1.3.2016, rejected the plaint. Being aggrieved by the said order, plaintiff filed R.A.No.83/2016 before the VIII Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru. In the appeal, the plaintiff filed an application under Order 39 Rule 1 and 2 Code of Civil Procedure for temporary injunction restraining the 8th defendant from putting up any construction on the suit schedule property by reiterating the averments made in the Appeal Memorandum. Said application was resisted by the 8th defendant by filing objections. The Lower Appellate court by the impugned order dated 20.9.2016 dismissed the application by holding that the plaintiff has not made out any ground to grant temporary injunction. Hence, the present appeal is filed.

I have heard the learned counsel for the parties to the lis.

Sri.G.D.Ashwathanarayana, learned counsel appearing for the appellant contended that the impugned order passed by the lower appellate Court rejecting the application for grant of temporary injunction restraining the defendant No.8 - present respondent No.8 from putting up construction is erroneous and contrary to the material on record.

He further contended that when the suit filed in the year 2014, the trial Court granted an ex- parte injunction on 17.06.2014 and was continued till the plaint came to be rejected on 01.03.2016. Therefore, in all fairness, the appellate Court ought to have granted interim order of status-quo between the parties. He further contended that when the dispute is pending between the parties, the Appellate Court ought to have directed the parties maintain status-quo, same has not been done. Therefore, he sought to set aside the impugned order by allowing the present appeal.

Per contra, Sri. Prakash D. Hebbar, learned counsel appearing for respondent No.8 sought to justify the impugned order passed by the Appellate Court and contended that the very suit filed by the plaintiff is not maintainable. Hence, question of granting temporary injunction does not arise and it has been rightly rejected by the lower appellate Court. Therefore, he sought to dismiss the present appeal.

Having heard the learned counsel for the parties, it is an undisputed fact that the present plaintiff filed the suit for partition and separate possession in respect of suit schedule property contending that the suit property is the joint family property of the plaintiff and defendant Nos.1 to 7 and 9 to 16 and there was no partition in the joint family and the same is disputed by the 8th defendant who is the purchaser of item No.1 of joint family. If the suit itself is not maintainable, question of granting injunction does not arise. The Appellate Court considering the entire material on record has recorded a finding that the High Court has rejected the application for amendment of plaint and application for production of additional documents and the present suit is filed after the appellant failed to succeed up to the High Court. The Defendant No.8 has purchased the property and he is in possession of the same.

The lower Appellate Court recorded a finding that prima-facie case includes maintainability of the suit. If suit itself is not maintainable in the eye of law, the question of granting temporary injunction does not arise. It also observed that the result of the said appeal is subject to determination of legal right of appellant in respect of suit property. Therefore, plaintiff has not made out prima facie case to grant temporary injunction against 8th defendant from putting up any construction over item No.1 of suit schedule property. The defendant No.8 has invested huge amount for conversion of agricultural land into non-agricultural purpose as observed in RSA by Hon'ble High Court of Karnataka. Therefore, the lower appellate Court has dismissed the application filed by the appellant/plaintiff under Order 39 Rule 1 and 2 r/w Section 151 of Code of Civil Procedure.

It is for the Appellate Court to decide as to whether the order passed by the trial Court in rejecting the plaint is just and proper and whether the plaintiff has made out any ground for the relief sought for after adjudication of both oral and documentary evidence on merits. It is also not in dispute that the suit filed by the plaintiff came to be dismissed on the ground that suit for partial partition is not maintainable. RSA No.466/2009 filed before this Court was also dismissed on merits on 23.01.2013. Whether the second suit is maintainable or not has to be adjudicated by the lower appellate Court after considering both oral and documentary evidence adduced and produced by both the parties to the lis. It is also not in dispute that when the suit filed, the trial court granted ex-parte temporary injunction on 17.06.2014 directing the parties to maintain status-quo and it was allowed to continued till the plaint came to be rejected on 01.03.2016.

Taking into consideration the facts and circumstances of the present case, it is suffice to direct the lower appellate Court to decide the appeal R.A. No.83/2016 itself as expeditiously within two months from the date of the receipt of a copy of this order directing the parties to maintain status-quo as on today for a period of two months, without adverting to merits and de-merits, urged by both the parties. The appellant is directed to proceed with the arguments on the next date of hearing i.e. on 27.07.2017 and complete their arguments within a week and thereafter, 8th defendant shall continue with the arguments and complete his arguments by another one week. Subject to that condition, the lower appellate Court is directed to dispose of the appeal within a period of two months.

If the arguments is not completed by the appellant, interim order of status quo granted by this Court shall be expired automatically after two months.

Both the parties shall co-operate with the lower appellate Court and complete their arguments, as observed supra. It is always open for the appellant to file necessary memo for dispensation of un-contested defendants before the Lower Appellate Court.

Ordered accordingly.