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2016 DIGILAW 21 (KAR)

H. Sharadamma v. R. Ramappa

2016-01-06

B.S.PATIL

body2016
ORDER : B.S. PATIL, J. 1. In this writ petition, petitioner is calling in question dismissal of his application filed seeking grant of temporary injunction. The order passed by trial court in O.S. No. 511 of 2014 has been confirmed in M.A. No. 1 of 2015 by the Principal Senior Civil Judge and CJM, Ballari, vide his judgment dated 30th July 2015. 2. The plaintiff/petitioner has filed the suit seeking specific performance of the agreement to sell said to have been executed by defendant Nos. 3, 8 to 10 and predecessor of defendant Nos. 5 to 7 by name R. Hanumantappa. According to petitioner, a sum of Rs. 2,00,000/- was agreed to be paid as sale consideration, out of which an amount of Rs. 1,75,000/- was paid as advance sale consideration. It is contended by the plaintiff that as there was dispute regarding partition between the members of the family in O.S. No. 151 of 1997, the plaintiff did not file the suit seeking specific performance until the proceedings in the suit attained finality and till the final decree proceedings were concluded. 3. It is necessary to notice that plaintiff has filed the suit through his General Power of Attorney holder-Sri P.J. Neelakantam. Said P.J. Neelakantam, according to the defendants, represented them as their counsel in O.S. No. 151 of 1997 and it was at his instance that the suit agreement to sell was fabricated and created with a fraudulent design and the suit came to be filed taking advantage of the creation of such a document styled as agreement to sell allegedly signed by the defendants. 4. The defendants denied the execution of the said agreement to sell. It is in this background, the trial court considered the application filed by plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short 'CPC') praying for a restraint order against the defendants from alienating and encumbering the suit schedule property. The trial court has come to the conclusion that having due regard to the facts and circumstances of the case and the nature of allegations made by defendants against the power of attorney holder of plaintiff, no prima facie case had been made out by the plaintiff for grant of temporary injunction and that balance of convenience was not in favour of plaintiff. 5. 5. On appeal, the appellate court has concurred with the findings recorded by the trial court. These concurrent findings are assailed by the learned counsel for petitioner contending inter-alia that both the Courts below have committed serious illegality in proceeding solely on the basis of the allegations made in the written statement, directed against the General Power of Attorney holder of plaintiff. It is his submission that veracity of these allegations is a matter that is required to be examined at the stage of trial and the same could not have been made basis for rejection of the application filed for temporary injunction. He urges that while deciding the question of presence prima facie case to grant temporary injunction, it is not desirable to record any finding with regard to the merits of the allegations made. In this regard, learned counsel for petitioner has relied on the decision of this Court in the case of SMT. T.K. GOWRAMMA Vs. SRI C.K. RAVIPRASANNA, reported in 2007 (2) KCCR 1482 . 6. Learned counsel for the respondent strongly supports the concurrent findings recorded by both the Courts below. He urges that the suit schedule property, as described in the plaint schedule, is vague. He further points out that the power of attorney holder of plaintiff being an advocate, had indeed represented the defendants in O.S. No. 151 of 1997 and by using his position as an advocate of defendants, he has created the suit agreement to sell and therefore, no prima facie case was made out by plaintiff and both the courts below were right and justified in dismissing the application. 7. Having heard the learned counsel for both parties, I find that both the Courts below have taken note of the serious nature of allegations made against the plaintiff and his power of attorney holder. The power of attorney holder of plaintiff, who has filed the suit seeking specific performance, being an advocate, has represented the defendants in O.S. No. 151 of 1997. Based on this prima facie finding recorded, both the Courts below have come to the conclusion that the allegations made by the defendants against their own advocate, who has filed the present suit as General Power of Attorney holder of plaintiff, had to be viewed seriously. Based on this prima facie finding recorded, both the Courts below have come to the conclusion that the allegations made by the defendants against their own advocate, who has filed the present suit as General Power of Attorney holder of plaintiff, had to be viewed seriously. Both the Courts have refused to exercise their discretion in granting the equitable relief of temporary injunction in favour of plaintiff taking note of this important aspect. 8. It is true correctness or otherwise of the allegations has to be ultimately decided only after trial. But, while granting or refusing temporary injunction, the Courts are required to take into consideration the conduct of the plaintiff and the nature of allegations made by defendants against the plaintiff. Both the Courts have come to the conclusion that defendants were at one point of time represented by Sri P.J. Neelakantam, an advocate, who has now filed the suit as General Power of Attorney holder of the plaintiff. It is in this background, the Courts below have attached significance to the allegations made by defendants against their advocate alleging that he was instrumental in creating the agreement to sell. 9. In such circumstances, it cannot be said that the Courts below committed any illegality in refusing the equitable relief of temporary injunction. However, it has to be stated that whatever opinion has been expressed by the Courts below shall be confined only for the disposal of application and shall not influence the Courts below in adjudicating the main dispute on merits. 10. I do not find that there is any miscarriage of justice by the orders passed by the Courts below. At any rate, this Court, in exercise of writ jurisdiction under Articles 226 & 227 of Constitution of India, will not interfere with such findings, as the discretion exercised by the Courts below is informed by consideration of relevant materials produced by the parties. Hence, the Writ Petition is dismissed, making it clear that observations made by the trial court and the appellate court shall not influence the disposal of main matter on merits.