Smt. Munilakshmamma vs Sri H.B. Bharath Kumar

B.V. Pinto, J.—This writ petition is filed challenging the order dated 9.2.2012 passed on I.A. No. 2 in O.S. No. 144/2011 on the file of Additional Senior Civil Judge at Ramanagara [hereinafter called as ''Trial Court'' for short] and the order dated 26.9.2013 passed by the II Addl. District & Sessions Judge, Ramanagara, at Kanakapura, Ramanagara District [hereinafter called as ''Lower Appellate Court'' for short]. The parties are referred according to their ranking before the trial Court. The plaintiff filed a suit against the defendant seeking for a decree of specific performance of the agreement dated 4.2.2010 executed by him with the defendant for sale of two items of properties in Kanakapura Taluk, Ramanagara District.

It is the case of the plaintiff that he has paid a sum of Rs. 65,00,000/- by way of cash and cheque for purchasing the suit schedule properties by means of an agreement and that the total price for the said land agreed between the parties is Rs. 1,30,00,000/-. It is the further case of the plaintiff that the defendant has thereafter applied for conversion of suit schedule property and further applied for extraction of granite deposit. Apprehending that the defendant would not honour the agreement with the plaintiff, he has filed the suit before the trial Court. Along with the said suit he has filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking for an injunction restraining the defendant from extracting, removing and transporting the black granite deposit from the suit schedule property until the disposal of the suit. After notifying the suit to the defendant, the trial Court has passed an order dated 9.2.2012 restraining the defendant from extracting, removing and transporting the black granite deposit situated in the suit schedule property by allowing the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC filed by the plaintiff. Being aggrieved by the said order passed by the trial Court, the defendant approached the Lower Appellate Court and the Lower Appellate Court by order impugned in this case in M.A. No. 6/2012 dismissed the appeal filed by the defendant and confirmed the order passed by the trial Court. It is these orders, which are challenged by the petitioner/defendant in this writ petition.

Heard Sri M.R. Rajagopal, learned Counsel appearing for the Petitioner and Sri H.C. Shivaramu, learned Counsel appearing for the Caveator/Respondent.

Sri M.R. Rajagopal, learned Counsel appearing for the Petitioner submitted that the trial Court has erred in granting an Interim Order of Injunction against the defendant and that the ingredients of Order XXXIX Rule 1 and 2 read with Section 151 of CPC have not been followed by the trial Court. In support of the same, he has cited the following rulings reported in:-

(1) Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd. and Others, ;

(2) Dalpat Kumar and Another Vs. Prahlad Singh and Others, ; and

(3) Rambaran Prosad Vs. Ram Mohit Hazra and Others, .

Sri H.C. Shivaramu, learned Counsel for the Respondent on the other hand submits that he has raised a technical plea that Section 19 of Karnataka Civil Courts Act, 1964 provides for an appeal against the order passed by the trial Court-Senior Civil Judge to this Court where the valuation of the suit schedule property is more than rupees 10 lakhs and hence, the appeal before the Lower Appellate Court is not maintainable. He also submits that on merits, the petitioner has agreed to purchase the property only because there is granite deposit or else he would not have parted with a sum of Rs. 65 lakhs. It is his submission that the balance of convenience is in his favour since the granite deposit is not perishable and since no injury or hardship would be caused to the defendant if the order passed by the Courts below is sustained. He therefore submits that the writ petition may be dismissed.

It is seen that the defendant has not denied the signature on the agreement to sell. Her case in the written statement is that, she was in need of Rs. 15,00,000/- and she received the same from the defendant and while taking the amount, the defendant and her two children were made to sign on the blank papers, which was converted by the plaintiff into an agreement for sale. However, Sri H.C. Shivaramu, learned Counsel for the Respondent submits that the said document contains the signature of her two sons. Besides, the agreement is in Kannada language and defendant has signed in Kannada language; whereas her two sons have signed in English language indicating that the defendant was aware as to what undertaking she is giving while entering into the agreement. So far as the irreparable loss or injury is concerned, the trial Court has held that it is definitely in favour of the plaintiff since the plaintiff has parted with the money of Rs. 65 lakhs whereas defendant''s land would be still intact and would not be perished till the disposal of the suit. I have carefully gone through the entire materials on record and also the citations as referred above. Section 19 of the Karnataka Civil Courts Act, 1964 states as follows:-

Appeals from Civil Judge- Appeals from the decrees and orders passed by a Civil Judge in original suits and proceedings of a civil nature, shall, when such appeals are allowed by law, lie.-

(1) to the District Court, when the amount or value of the subject-matter of the original suit or proceeding is less than [one lakh rupees; (Later amended as ten lakhs),

(2) to the High Court, in other cases.

Though it is provided in the aforesaid Section that when the value of the original suits or proceedings exceeds Rs. 10 lakhs, the appeal lies to the High Court. In the proceedings before the Court below, the injunction is sought in respect of the granite that has to be removed from the earth. The valuation of the said property has not been specified. Hence, I am of the opinion that Section 19 of the Karnataka Civil Courts Act, 1964 is not applicable to this case. So far as the merits are concerned, both the Courts below have concurrently held that the balance of convenience is in favour of the plaintiff. Having regard to the nature of the property namely, granite stones, I am of the view that no loss or injury would be caused to the defendant if the order of the trial Court is sustained. I do not see any perversity or illegality in the orders passed by the Courts below. Hence, this writ petition is devoid of merits and the same is dismissed. The observations made in this order are only for the purpose of disposal of this writ petition, the same will have no bearing on the merits of the case before the Courts below.