SMT ASHWINI N vs SRI SHANKARAPPA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 12 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

MISCELLANEOUS FIRST APPEAL NO.3337 OF 2025 (CPC)

BETWEEN:

SMT.ASHWINI N
W/O CHANDANKUMAR
AGED ABOUT 33 YEARS
R/AT NO.251, 1ST MAIN ROAD,
CHOWDESHWARINAGAR, LAGGERE
BENGALURU-560 058.
…APPELLANT

(BY SMT.SHILPA RANI., ADVOCATE)

AND:

SRI SHANKARAPPA
AGED ABOUT 65 YEARS
R/AT NO.854, 1ST FLOOR
9TH BLOCK, 1ST D MAIN ROAD,
MALAIMAHADESHWARA LAYOUT
NAGARABHAVI
BENGALURU-560 072.
…RESPONDENT

(BY SRI. K.VIJAYA KUMAR., ADVOCATE)

THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT. 25.03.2025 PASSED ON IA NOS 1
AND 2. IN O.S.NO.4075/2023 ON THE FILE OF THE COURT OF
THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-

















Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA

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19, BENGALURU, DISMISSING THE IA.NOS 1 AND 2 FILED
U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908.

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 in O.S.No.4075/2023, challenging the impugned order
dated 25.03.2025 passed on I.A.Nos.1 and 2.

2. The respondent is the defendant before the trial
Court.

3. The appellant filed a suit against the respondent for
the relief of declaration to declare the appellant-plaintiff to be
the absolute owner of the suit schedule property. Thereafter to
direct the defendant to hand over vacant possession of the suit
schedule property to the plaintiff and consequently, for the
relief of permanent injunction and such other reliefs.

4. Along with the suit, two applications came to be
filed i.e., I.A.No.1 for temporary injunction restraining the
defendant or anybody on his behalf from alienating or

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encumbering the suit schedule property, till disposal of the suit
and I.A.No.2 for restraining the defendant or anyone claiming
on his behalf from changing the nature of the suit schedule
property, till disposal of the suit.

5. Upon summons being served, the respondent-
defendant appeared and contested the applications by filing
objections statement so also by filing the written statement;
denied the claim so made by the appellant-plaintiff and sought
for dismissal of the applications by taking several pleas therein.

6. The trial Court on the basis of the pleadings and the
materials placed on record, after hearing the learned counsel
for both parties, did not find favour with the appellant-plaintiff
and came to the conclusion that the plaintiff has not made out
a prima facie case for grant of temporary injunction as sought
for in I.A.Nos.1 and 2 and accordingly, dismissed both the
applications.

7. It is this common order of dismissal of both the
applications that is questioned by the appellant-plaintiff in this
appeal on the following grounds:

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8. It is a vehement contention of the learned counsel
for the appellant that the impugned order passed by the
learned trial Judge is illegal, perverse and arbitrary, the same is
not sustainable and requires to be interfered by setting aside
the same. Learned counsel further contends that the trial Court
has failed to take into consideration the registered sale deed of
the appellant-plaintiff and prior documents of the General
Power of Attorney of the predecessors of the plaintiff and has
merely rejected the applications only on the ground that the
earlier suit in O.S.No.6401/2020, which was filed by the
appellant-plaintiff for bare injunction, an order was passed on
the application under Order 39 Rule 1 and 2 which went against
the appellant-plaintiff against the very same defendant,
whereby the trial Court held that the appellant-plaintiff did not
make out a prima facie case so also the title to the suit
schedule property and dismissed the application therein and
the same that was challenged before this Court did not fetch
any favourable order to the plaintiff. Therefore, learned counsel
for the appellant contends that the trial Court has mechanically
passed the order without taking into consideration these crucial

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aspects of the plaintiff having secured the property by way of
registered sale deed and the predecessors of the plaintiff
having obtained the General Power of Attorney coupled with
interest. Therefore, the sale deed of 17.05.2017 from one
Srimathi obtained by the plaintiff is valid in the eye of law. The
trial Court has totally ignored the same without giving due
credence to the said document and has committed an error and
illegality in dismissing the applications. Hence, she seeks
interference of this Court.

8.1. Learned counsel produces a list of documents along
with the memo by placing the documents of her title having
secured the same through registered sale deed and the
documents preceding the said sale deed relating back to the
year 1950 i.e., the partition deed of 08.06.1950 and
subsequently, the General Power of Attorney is obtained by
various persons which ultimately culminated into a registered
sale deed in favour of the appellant-plaintiff. Therefore, she
contends that when all these documents are now produced, the
plaintiff has made out a prima facie case to go in for trial and
also for an order of injunction restraining the respondent-

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defendant from alienating or changing the nature of the suit
schedule property for the reason that in case the appellant-
plaintiff succeeds in the suit and if there is an alienation made
by the respondent-defendant during the pendency of the suit,
which creates multiplicity of proceedings and the same cannot
be compensated by way of cost. Therefore, she seeks an order
in favour of the plaintiff by allowing the appeal and
consequently setting aside the impugned order.

9. Per contra , learned counsel for the respondent-
defendant vehemently contends that there is no illegality or
perversity in the impugned order passed by the learned trial
Judge. It is further contended by learned counsel that the trial
Court is justified in rejecting both the applications in view of the
fact that the very same appellant-plaintiff had preferred a suit
in O.S.No.6401/2020 against the respondent-defendant on the
very same cause of action claiming the relief of permanent
injunction, in which an application came to be filed seeking
temporary injunction to restrain the respondent-defendant from
interfering with the peaceful possession and enjoyment of the
plaintiff over the suit schedule property. Learned counsel

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further contends that in the said suit, the respondent-defendant
had filed objection and opposed the said relief and ultimately
the temporary injunction was rejected whereby the trial Court
came to the conclusion that the appellant-plaintiff had not
made out a prima facie case so also no title vests with the
plaintiff in the guise of the registered sale deed as there was no
title to the vendors of the plaintiff to have parted with the suit
schedule property by way of a valid deed as the vendors
themselves did not have a proper valid title to convey the title
to the appellant-plaintiff.

9.1. It is also contended by learned counsel for the
respondent that the said order was no doubt challenged by the
appellant before this Court in MFA No.3682/2021. However,
learned counsel appearing for the appellant therein in the said
appeal, filed a memo seeking withdrawal of the said appeal and
by order dated 23.09.2026, the said appeal in MFA
No.3682/2021, which was filed challenging the order in
O.S.No.6401/2020, came to be withdrawn. Thereby, the order
passed in O.S.No.6401/2020 on the application for grant of

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temporary injunction has become final and the same is not
questioned and has attained finality.

9.2. It is contended by learned counsel that
O.S.No.6401/2020 no doubt is pending before the trial Court
for adjudication, but since the order is already passed by the
trial Court on the very same set of facts between the same
parties and the Court has arrived at a finding that the
appellant-plaintiff has not made out a prima facie case so also
has not made out title of herself or for that matter, her
predecessors, therefore, did not have a proper valid title to
convey by her predecessors to the appellant herein. In view of
withdrawal of the appeal, those findings have attained finality
and the same is not questioned. The same would hold good
even for the present suit on hand which is between the same
parties and on very same similar circumstances. The only
difference is that the earlier suit is filed for permanent
injunction and the present suit is filed for the relief of
declaration.

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9.3. Learned counsel further contends that the memo
with documents which are filed by the appellant-plaintiff before
this Court are filed for the first time. These documents were not
filed before the trial Court to peruse these documents to advert
to these documents, which are now filed for the first time and
therefore, the same cannot be taken into consideration by this
Court to decide the order passed by the trial Court where the
trial Court was not privy to these documents.

9.4. Learned counsel further contends that the judgment
relied by the learned counsel relating to the question of agency
and Sections 201 to 207 of the Contract Act would not be
applicable to the facts and circumstances of this case. He
contends that the trial Court has looked into the aspect of the
essential requirements for grant of temporary injunction and
having not found a prima facie case made out by the appellant-
plaintiff, the trial Court has rightly rejected the application
which does not call for interference. Hence, he seeks to dismiss
the appeal.

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10. I have heard learned counsel for the appellant and
learned counsel for the respondent.

11. The point that arises for consideration before this
Court is:
1. Whether the impugned order passed by the
learned trial Judge calls for interference and if
so, what order?

12. It is not in dispute that the appellant-plaintiff filed
the suit for declaration to declare the plaintiff to be the
absolute owner and also to hand over the vacant possession of
the suit schedule property to the custody of the plaintiff. This
apparently means that the appellant-plaintiff is not in
possession of the suit schedule property and seeks vacant
possession from the defendant so also for declaration of title of
ownership of the suit schedule property. In the meanwhile, two
applications are filed by the appellant before the trial Court.
When the application for temporary injunction is filed by the
appellant-plaintiff, it is for the plaintiff to come before the Court
with all materials available by way of pleadings and affidavit
aliunde to establish and prove that she has made out a prima

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facie case to go in for trial and that an order of temporary
injunction if not granted, the plaintiff would suffer irreparable
injury and hardship and that the balance of convenience tilt in
her favour. It is only when the prima facie case is made out
along with these two essential elements that an injunction
order could be granted in favour of the plaintiff. On the
contrary, if the same is not made out and the defendant makes
out a better case for rejection of the application, the Court is at
liberty to look into the relevant materials and pleadings and the
affidavit placed on record to determine the issue in question
regard to grant or rejection of temporary injunction.

13. Primarily, the appellant-plaintiff has not produced
the documents of title before the trial Court as the same are
now produced by way of a memo. Apparently, the trial Court
was deprived of looking into these documents.

14. Be that as it may, the plaintiff is the master of her
case. She did not find it necessary to file the necessary
documents at the stage of considering the application under
Order 39 Rule 1 and 2 and relied upon the pleadings and on the

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registered document of sale deed dated 17.05.2017 to contend
that an order of temporary injunction be granted in her favour
by restraining the defendant from not alienating the suit
schedule property.

15. When an application for a temporary injunction is
filed under Order 39 Rule 1 and 2 as stated by me earlier, three
essential requirements to be seen are prima facie case, balance
of convenience and irreparable injury and hardship that would
be caused to which of the party. Therefore, the onus is heavy
on the plaintiff to place all materials to satisfy the Court that an
order of temporary injunction if not granted, the plaintiff would
be put to irreparable injury and hardship and so also lead into
multiplicity of proceedings.

16. Apparently, the plaintiff has not produced the title
documents or title of the suit schedule property. It is also not in
dispute that the appellant-plaintiff had filed a suit in
O.S.No.6401/2020 earlier and filed a similar application to
restrain the respondent-defendant from interfering with the
peaceful possession and enjoyment of the suit schedule

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property. The parties are the same, the property is the same,
the arguments were also the same, so also material
documents. It is also not in dispute that the said application in
O.S.No.6401/2020 came to be dismissed. The trial Court came
to a conclusion that the plaintiff did not make out a prima facie
case and also title and no documents were produced to
establish ownership and title over the suit schedule property.
Though the said order of dismissal of the application under
Order 39 Rule 1 and 2 in O.S.No.6401/2020 was challenged
before this Court in MFA No.3682/2021, the same came to be
withdrawn. Therefore, the findings arrived at by the Civil Court
in the earlier round of litigation between the same parties has
attained finality.

17. Be that as it may, let me examine whether the
order of the trial Court calls for interference.

18. A careful perusal of the pleadings and materials
placed on record, the trial Court has come to a conclusion that
no prima facie case is made out by the plaintiff for grant of an
order of temporary injunction. On the contrary, the trial Court

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has come to the conclusion that the defendant has placed
sufficient material for non-grant of the order in favour of the
appellant-plaintiff and the balance of convenience would also
tilt in favour of the respondent-defendant rather than the
plaintiff so also the injury and hardship would be caused to the
defendant than the appellant-plaintiff.

19. The Hon'ble Apex Court in the case of Kashi Math
Samsthan and another vs. Shrimad Sudhindra Thirtha
1
Swamy and another has held at paragraph 16 that when a
party fails to prove prima facie case, the question of
considering balance of convenience and irreparable injury
would not be material as in the present case also, the trial
Court has come to a conclusion that no prima facie case is
made out.

20. It is also seen that the appellant-plaintiff has not
placed sufficient material to satisfy the Court and weigh in
favour of the plaintiff to grant an order of temporary injunction.
Under the circumstances, it is not for this Court to express a
different opinion even if it were to as held by the Hon'ble Apex

1
(2010) 1 SCC 689

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Court in the case of Wander Ltd. and anr. vs. Antox India
2
P. Ltd. , that the Appellate Court will not interfere with the
exercise of discretion of the Court of first instance even if it
were to come to a different opinion by itself. Therefore, I am of
the opinion that the appellant-plaintiff has not made out a case
to interfere with the well-reasoned order passed by the learned
trial Court.

21. Under the circumstances, I pass the following:
ORDER

i) The appeal stands dismissed .

ii) It is made clear that this Court has not
expressed any opinion on the merits of the
matter.

Order accordingly.




Sd/-
(PRADEEP SINGH YERUR)
JUDGE


VM
List No.: 1 Sl No.: 32

2
1990 SCC (Supp) 727