SMT P LATHA vs SRI P RAJEEV
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:56768
MFA No. 3487 of 2023
CNR: KAHC010259102023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 6 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3487 OF 2023 (CPC)
BETWEEN:
SMT. P. LATHA
S/O. LATE C. PUTTANARASIMHAIAH
W/O. DR. S.C. JAGANNATH
AGED ABOUT 64 YEARS
TH
R/AT NO.462, 4 LINK ROAD
ST RD
21 CROSS, 3 BLOCK JAYANAGAR
BANGALORE - 560 011.
…APPELLANT
(BY SRI S. RAMA MURTHY,ADVOCATE)
AND:
1. SRI P. RAJEEV
S/O. LATE C. PUTTANARASIMHAIAH
AGED ABOUT 60 YEARS
ND
R/AT NO.739, 2 MAIN ROAD
PADMANABHANAGAR
BANGALORE - 560 070
2. SRI P. GURUDUTT
S/O. LATE C. PUTTANARASIMHAIAH
AGED ABOUT 57 YEARS
TH
R/AT NO.462, 4 LINK ROAD
ST RD
21 CROSS, 3 BLOCK JAYANAGAR
BANGALORE - 560 011.
3. SMT. VINUTHA P. KUMAR
D/O. LATE C. PUTTANARASIMHAIAH
W/O. DR. A.M. PRASANNA KUMAR
AGED ABOUT 62 YEARS
R/AT NO.2995/1, HOSPITAL ROAD
Digitally
signed by
VINUTHA M
Location:
HIGH COURT
OF
KARNATAKA
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HC-KAR
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MFA No. 3487 of 2023
CNR: KAHC010259102023
TH
5 CROSS, NEHRUNAGARA
MADYA - 571 401.
…RESPONDENTS
(BY SRI HARISH H.V., ADVOCATE FOR C/R2)
THIS MFA IS FILED UNDER SECTION 104(1)(I) OF CPC
READ WITH ORDER XLIII RULE 1(R) OF CPC, PRAYING TO SET
ASIDE THE ORDER DATED 10.04.2023 PASSED ON I.A.NO.III
IN O.S.NO.562/2022 BY X ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant, who is the
plaintiff before the trial Court, challenging the order dated
10.04.2023 passed on I.A.No.III in O.S.No.562/2022 by X
Additional City Civil and Sessions Judge, Bengaluru (for
short, “trial Court”). The respondents are the defendants
before the trial Court.
2. Parties shall be referred to as per their status
before the trial Court.
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HC-KAR
NC: 2026:KHC:56768
MFA No. 3487 of 2023
CNR: KAHC010259102023
3. Brief facts of the case are as under:
The plaintiff filed a suit against the defendants
seeking partition and separate possession. Along with the
plaint, the plaintiff filed I.A. No. III under Order XXXIX
Rule 10 of CPC, seeking an order directing defendant No.2
to permit her to take her belongings such as clothes,
jewels, money and articles, which are stored in the ground
floor of the suit schedule 'A' property.
3.2 Defendant No.2 appeared and filed his
statement of objections to the said application.
3.3 Even prior to this, the plaintiff had filed I.A.No.I
under Order XXXIX Rules 1 and 2 of CPC seeking an order
of temporary injunction restraining the respondents-
defendants from interfering with her possession of the
ground floor premises of the residential property bearing
th st rd
No.462, 4 Link Road, 21 Cross, 3 Block, Jayanagar,
Bengaluru. The said application came to be dismissed.
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MFA No. 3487 of 2023
CNR: KAHC010259102023
Aggrieved by the same, the appellant-plaintiff challenged
the said order in MFA No.2885/2022.
3.4 The said appeal came to be disposed of with
certain observations and grant of relief in favour of the
appellant-plaintiff, permitting her to remove her
belongings such as personal records like passport, from
the subject property. Liberty was also reserved in this
regard. This Court, in the said MFA.No.2885/2022,
directed the respondents-defendants not to alienate the
property till the disposal of the suit. It is pursuant to the
said order that I.A.Nos. III and IV came to be filed by the
plaintiff.
3.5 Along with IA.No.1, IA.No.3 came to be filed by
the plaintiff, which is mentioned herein above, to allow her
to take her belongings, such as clothes, jewels, money
and articles that are stored on the ground floor of the suit
schedule property. This application is heard by the learned
trial judge along with IA.No.4, which was filed for a
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MFA No. 3487 of 2023
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direction to the defendant No.2 to open the lock of the
premises and allow her to collect all her articles since she
is prevented to enter the premises by the defendants by
virtue of the order passed on IA.No.1 under order XXXIX
Rule 1 and 2 read with Section 151 of CPC. The trial Court
by the impugned order dated 10.04.2023 rejected both
the applications IA.Nos.3 and 4. Aggrieved by which the
appellant/plaintiff is before this Court on IA.No.3, and she
has filed writ petition challenging the IA.No.4, which is
pending adjudication.
4. It is the vehement contention of the learned
counsel for the appellant/plaintiff that the trial Court has
committed an illegality and perversity in passing the
impugned order. The trial Court has committed an error in
hearing both the applications, though Hon'ble High Court
in MFA.No.2885/2022 has stated IA No.3 becomes
infructuous if the joint effort made by the
appellant/plaintiff visiting the suit 'A' schedule property
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MFA No. 3487 of 2023
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along with the learned counsels for the parties to collect
the materials on the ground that IA No.4 was for the relief,
without being heard first. On both applications, orders
came to be passed, which is not proper and incorrect.
4.1 Learned counsel for the appellant/plaintiff
further contends that the trial court has committed an
illegality in not considering the broad scope of IA.No.3 and
thereby the impugned order has caused miscarriage of
justice. It is also contended by the learned counsel that
the ingredients of Order XXXIX Rule 10 are not satisfied. It
is an error committed by the learned trial Judge and has
mechanically disposed of the application without adverting
to the merits of the matter. It is further contended by the
learned counsel that the trial Court has decided the
application without noticing the observations made by this
Court in MFA No.2885/2022, which is again an error
committed by the trial Court, which is not sustainable.
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MFA No. 3487 of 2023
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Therefore, he contends that the impugned order deserves
to be set aside and seeks to allow the appeal.
5. Per contra, learned counsel appearing for the
respondents/defendants vehemently contends that there is
no illegality or perversity in the impugned order passed by
the trial Court on IA No. 3. He contends that the trial
Court has taken into consideration the materials placed on
record and the reliefs sought for by the plaintiff on
application - IA.No.3 and so also the observations made
by this Court in the MFA No.2885/2022 whereby an
opportunity was given to the appellant/plaintiff to visit the
suit schedule property whereby the learned counsels for
both parties had visited and ultimately came to a
conclusion that there was no passport available and
accordingly the application-IA.No.3 came to be dismissed,
which does not call for interference.
5.1 Learned counsel for the
respondents/defendants further contends that on the
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MFA No. 3487 of 2023
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earlier application-IA.No.1 filed under Order XXXIX Rule 1
and 2 read with Section 151 of CPC when the same was
dismissed, the appellant herein had challenged the same
in MFA No.2885/2022, and in the said MFA proceedings,
this Court had permitted the learned counsel for both
parties to visit the suit schedule property, and if there are
any articles of the plaintiff to take out the same from the
ground floor, and upon visit by both the learned counsels
it was found that no such articles as claimed with regard
to the passport were available and therefore an
opportunity despite having been given, nothing was
available for the plaintiff to collect in the said property,
was noted in the said MFA herein above mentioned.
5.2 Learned counsel for the
respondents/defendants further contends that in fact the
Bench of this Court in the earlier round of MFA passed a
favourable order of a direction to the respondents/
defendants to not alienate the property, and on the
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MFA No. 3487 of 2023
CNR: KAHC010259102023
submission of the learned counsel for the defendants that
he would not alienate the residential property, the same
was recorded, and liberty was given to the
respondents/defendants to seek leave of the Court in case
they want to alienate the suit schedule property that was
recorded and this Court passed an order directing the
respondents/defendants not to alienate the property, i.e.,
the residential property mentioned herein above till the
disposal of the suit, which holds good even as on date.
Therefore, he contends that taking into consideration all
these aspects, the trial Court has passed a reasoned order
rejecting the application of the appellant/plaintiff, which
does not call for interference. Hence, he seeks to dismiss
the appeal.
6. I have heard learned counsel for the
appellant/plaintiff and learned counsel for the
respondents/defendants.
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HC-KAR
NC: 2026:KHC:56768
MFA No. 3487 of 2023
CNR: KAHC010259102023
7. The point that arises for consideration before
this Court is:-
" Whether the impugned order passed
by the trial Court calls for interference, if
so, what order?"
8. It is not in dispute with regard to the
relationship between the plaintiff and the defendants. The
suit came to be filed by the plaintiff for partition and
separate possession. It is the case of the plaintiff that
while she was residing in the suit schedule property along
with her parents, she had kept certain articles in the
ground floor of the property. Hence, she had filed the
application IA.No.3 along with IA.No.1 for taking clothes,
dress, money, records, and other articles belonging to her
kept in the ground floor of the suit schedule property since
she was prevented from entering the premises by the
defendants due to the rejection of the application filed
under Order XXXIX Rule 1 and 2 read with Section 151 of
CPC.
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MFA No. 3487 of 2023
CNR: KAHC010259102023
9. When this application was taken up for
consideration by the trial Court, the application -IA No.1
filed under Order XXXIX Rule 1 and 2 read with Section
151 of CPC was already dismissed as against the plaintiff,
which came to be challenged by the plaintiff in MFA
No.2885/2022, which came to be disposed of vide order
dated 09.06.2022. In the said MFA, a contention was
raised by the appellant/plaintiff that certain articles of her
were kept in the suit schedule property in the ground
floor, which she intends to take. On noticing this aspect,
this Court in the coordinate petition, had at the instance of
the submission of the learned counsel for the
respondents/defendants permitted the counsels for the
appellant/plaintiff and the respondents/defendants to go to
the suit schedule property and if the plaintiff's articles or
personal belongings are kept in the suit schedule property,
to remove/recover the same from the suit schedule
property and accordingly, the appellant was at liberty to
take the offer made by the learned counsel for the
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MFA No. 3487 of 2023
CNR: KAHC010259102023
respondents to take the belongings, if any, in the subject
property in the presence of two learned counsels.
10. It is submitted that based on the said proposal
given, the learned counsels had visited the property and
did not find any articles, more specifically the passport as
claimed by the plaintiff, which was noticed by the co-
ordinate Bench of this court. Despite the same, the co-
ordinate Bench of this Court had granted an order
direction against the respondent No.2 to not alienate the
suit schedule property till the disposal of the suit.
Therefore, it is seen that an opportunity was given to the
appellant/plaintiff in the earlier appeal proceedings before
this Court to visit the property which was exercised and
having not found any articles, this Court noticed the same
in the impugned order and did not find any favour with the
plaintiff and accordingly, rejected the application-IA No.3.
11. During the course of the argument, it is
submitted by the learned counsel for the
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MFA No. 3487 of 2023
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respondents/defendants that the ground floor of the
property has now been given on lease to a third party and
there is no movable property of the appellant/plaintiff on
the instructions of the defendant. Be that as it may, this
Court is required to see whether the trial Court has
exercised the judicial discretion in considering the
application filed under Order XXXIX Rule 10 of CPC in
accordance with law and whether there is any perversity
or illegality committed by the trial Court in dismissing the
application.
12. It is the contention of the learned counsel for
the appellant/plaintiff that IA.No.4 ought to have been
considered prior to considering IA No.3 in view of the fact
that said application was made to visit the spot to
remove/recover the articles of the appellant/plaintiff in the
suit schedule property. The trial Court has considered this
aspect in pursuance to the order passed by this Court in
MFA No.2885/2022 whereby such exercise was already
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MFA No. 3487 of 2023
CNR: KAHC010259102023
performed by an order of this Court by directing both the
learned counsels who are representatives of the parties to
go to the suit schedule property and see if any items are
there and to remove the same, which was exercised and
nothing was found. The affidavit was filed before the trial
Court on the basis of the directions given by this Court and
the same was taken note of by the learned trial judge
while deciding the impugned order. Therefore, I do not
find any good ground or cogent reason made out by the
learned counsel for the appellant/plaintiff to interfere with
the order passed by the learned trial Court.
13. Having perused the impugned order and having
heard of the counsel for both parties and also the order
passed by the co-ordinate Bench of this Court in MFA
No.2885/2022, I do not find any illegality or perversity in
the impugned order passed by the trial Court in dismissing
the application-IA.No.3. This Court does not find any need
to advert to the application - IA No. 4 as the same is the
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MFA No. 3487 of 2023
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subject matter in the writ petition that is pending
adjudication. Accordingly, I pass the following order:
ORDER
dismissed
1) The appeal is as it is devoid of
merits, and I do not find any perversity or
illegality in the impugned order passed by
trial Court.
2) It is made clear that this Court has not
expressed any opinion on the merits of the
matter.
3) All the contentions of the parties are kept
open.
4) Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
paragraphs 1 to 3.4.. CPN
RCK - 3.5 to end.
List No.: 1 Sl No.: 27