ACQUA BOREWELL PVT. LTD. versus SWAYAM PRABHA & OTHERS on 17 November 2021

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court of Karnataka at Bengalurudated 22.09.2020 in M.F.A. No. 1638/2020 and M.F.A. No. 1849/2020(CPC), by which the High Court has allowed the aforesaid appeals inpart and has modified the interim injunction granted by the learned XIVAdditional City Civil Judge, Bengaluru, CCH 28 (hereinafter referred toas the learned ‘trial Court’) passed in IA Nos. 1, 18, 22 and 24 in O.S.No. 4709/2019 and restricted the injunction against alienation to the extentof 1/7[th] share in the total plaint schedule properties till the disposal of thecase, the third parties have preferred the present appeals.

2. That respondent nos. 1, 22, 23 and 24 herein have institutedO.S. No. 4709/2019 before the learned trial Court seeking a declarationthat the plaintiffs and defendants 18 & 19 (respondent nos. 19 & 20herein) are entitled to their mother Laxmi Devi’s 1/7[th] share in the totalplaint schedule properties and consequently prayed for a decree forpartition and separate possession. They have also further sought adeclaration that 2015 Settlement Deed is void ab-initio.

2.1 At this stage, it is required to be noted that the plaint scheduleproperties consist of number of properties ranging from A1 to A40 in thesaid suit. The original plaintiffs filed IA No. 1 in OS No. 4709/2019seeking ex-parte ad-interim injunction qua the suit schedule properties.The learned trial Court initially granted ex-parte injunction restrainingthe defendants in the suit from alienating and creating any charge andthird party interest upon the suit schedule properties to the extent of theplaintiffs share, till the next date of hearing of the interim injunctionapplication. That by order dated 26.09.2019, the learned trial Courtdismissed IA No.1 in OS No. 4709/2019 and refused to grant an interiminjunction in favour of the plaintiffs, inter alia, holding that some of the A

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Asuit schedule properties are evidently owned by the firms/trusts/companies which entities have not been made parties to the suit.

2.2 Aggrieved by the order passed by the learned trial Court refusingto grant injunction, one of the plaintiffs in O.S. No. 4709/2019 preferredM.F.A. No. 1638/2020 before the High Court. The other plaintiffs alsoBfiled a separate appeal being M.F.A. No. 1849/2020 (CPC). By theimpugned common judgment and order, the High Court has partly allowedthe said appeals and has modified the order passed by the learned trialCourt in the interim injunction application and has directed to issue restraintorder qua the defendants against the alienation to the extent of 1/7[th]share in the total plaint schedule properties till disposal of the case. TheCHigh Court has also passed an order insofar as the activity such asconstruction, improvements, whether fresh or modification, are conductedover the schedule properties, the party doing so shall be doing it at hisrisk and shall not be entitled to claim equity at the end.

3. Feeling aggrieved and dissatisfied with the impugned commonDjudgment and order passed by the High Court granting injunction to theextent of 1/7[th] share in the total plaint schedule properties, the thirdparties to the suit have preferred the present appeals.

3.1 It is the case on behalf of the appellants that some of the suitproperties for which the injunction has been granted, the appellants haveEright, title or interest on the basis of the development agreement/s and/orotherwise and though they are directly affected by the interim injunctiongranted by the High Court, they are not made parties to the suit and theinjunction has been granted with respect to properties in which theappellants herein claim right, title or interest without hearing them.F3.2 It is also the case on behalf of the appellants that as such theplaintiffs have filed the application/applications to implead the appellantsherein as party to the suit contending inter alia, that the appellants arethe necessary and proper parties. It is submitted that without disposingof the said application/applications to implead the appellants as necessaryGand proper parties, the High Court ought not to have granted injunctionwith respect to properties in which the appellants claim right, title orinterest.

3.3 It is submitted that the High Court has failed to appreciatethat the learned trial Court passed a reasoned and speaking order whilerefusing to grant injunction. It is submitted that the learned trial CourtH

specifically observed while refusing to grant injunction that some of theproperties are standing in the name of the firms/trusts/companies andadmittedly the said entities have not been made parties to the suit. It issubmitted that despite the above, the High Court has granted injunctionwith respect to properties in which the appellants claim right, title orinterest, without impleading the appellants and without giving them anopportunity of being heard.

4. Learned counsel appearing on behalf of the original plaintiffs/original appellants before the High Court have supported the impugnedcommon judgment and order passed by the High Court.

5. We have heard Shri K.V. Vishwanathan, learned SeniorAdvocate appearing for the appellants and Shri Saurabh Kansal, learnedAdvocate appearing on behalf of the contesting respondent nos. 1,20 &23.

5.1 At the outset, it is required to be noted that against the suitschedule properties A1 to A40, the appellants herein – third parties tothe suit are claiming right, title or interest on the basis of the developmentagreements or otherwise with respect to Schedule A 6 (Part); ScheduleA8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part),A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part);Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part);and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that theapplication/s submitted by the original plaintiffs to implead the appellantsherein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed by the original plaintiffs toimplead the appellants as defendants to the suit contending inter alia,that they are necessary and proper parties. Therefore, according to theplaintiffs also, the appellants herein (proposed defendants) are necessaryand proper parties. Therefore, before granting any injunction with respectto the properties in which the appellants herein (proposed defendants)are claiming right, title or interest on the basis of the developmentagreements or otherwise they ought to have been given an opportunityof being heard. No injunction could have been granted against themwithout impleading them as defendants and thereafter without givingthem an opportunity of being heard.

6. It is required to be noted that the learned trial Court dismissedthe injunction application and refused injunction by observing that some A

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Aof the properties are evidently owned by the firms/trusts/companieswhich have not been made parties to the suit. Therefore, the impugnedcommon judgment and order passed by the High Court granting injunctionwith respect to 1/7[th] share in the total plaint schedule properties whichhas been passed without giving an opportunity of being heard to theappellants and without impleading them as party-defendants in the suitBby the learned trial Court, is unsustainable and deserves to be quashedand set aside.

7. In view of the above and for the reasons stated above, all theseappeals succeed. The impugned common judgment and order passed bythe High Court granting injunction against alienation to the extent ofC1/7[th] share in the total plaint schedule properties is hereby quashed andset aside qua Schedule A6 (Part); Schedule A8; Schedule A9, A30, A32(Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 &A34(Part); Schedule A4(Part), A34(Part); Schedule A35; ScheduleA4(Part), A11(Part), A25, A26, A27, A34 (Part); and Schedule A3, A28,DA32, A37 & A38 properties only.

The learned trial Court to first decide and dispose of the application/applications filed by the plaintiffs to implead the appellants herein asparty-defendants in O.S. No. 4709/2019 after giving them an opportunityof being heard, which shall be considered and decided in accordanceEwith law and its own merits and thereafter, if at all the appellants herein– proposed defendants are impleaded as party-defendants, the learnedtrial Court to consider the interim injunction application afresh with respectto the properties mentioned above, in accordance with law and its ownmerits.

F8. The present appeals are allowed to the aforesaid extent. Nocosts.

Nidhi Jain

Appeals allowed.

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