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Smt S Sujatha vs Sri N Somashekhar on 26 August, 2008

Karnataka High Court
Smt S Sujatha vs Sri N Somashekhar on 26 August, 2008
Author: B.S.Patil
MFA 8635.0'?
1

IN THE men COURT 0? KARNATAKA AT BANGALORE
A ~ -DATED THIS THE 26TH DAY 09 AUGUST, 2903
BEFORE Q 'T Q  %
THE HOIWBLE MRJUSTICE 8,;-,,iA,é$,§é;§'E,;;~€.T;,f,   ,_,
g.1r¢go.ss35     * x 
BETWEEN:   A 1   ' "  V  '

SMT. S.SUJA'I"HA,  
W/O.S.CHANDRAKUMAR,  ~

AGED ABOUT 37 YEARS,

D/O.H.N.S!NGE GOWDA,

R/ATNO.914,9TfiBLOCI{§., _ _  _ 

LAZER ROAD, POIJCE"£}U.ARTE2?S,   ., * 

FRAZER TOWN,   :   
1aArqc;ALoRE----.s<so oo:~:--.~._j'- -_   :APPELLAN'I'

(BY "M/VS;H,,}i?,Ll§JE?1i.AD:H~.#R & c'i'()'.',"A :)vs.3

1.

352:; L N.SOM&SI¥EKH;t§R,
_ . .,S/O.LRTE NANJEPPA,
,, AGED mam 4SYEARS,
;R,(A’F 30.42,’ ‘c’ CROSS,
am BANDEPPA GARDEN,

V’ ” _ ‘mNGA__’LeRE –~ 560 054.

” . 7;.-‘J 9éI–,’1″‘3.;§;=:jMEsH,

$1 0..,1s;ARAYANA;>PA,

. AGED ABOUT 20 YEARS,

‘ ma? No.86, 32» *0 (moss,
0?? TO GOVT. SCHOOL,

V 1’ JAKKUR, YELAHANKA,

” BANGALORE – 560 064.

3. SR}. SATHYANARAYANA,

FATHERS NAME NO’? KNOWN
TO THE PLAINTIFF,

MFA 8635.07

AGED ABOUT 45 YEARS,

R/AT 1550.918, 913 BLOCK,

IAZAR ROAD POLICE QUARTERS,

FRAZER TOWN, _ __
BANGALORE – 560 005. L RESPONDENFS

(BY SR’I.V.MANJUNA’1’I-I, ADV. FOR R-1 f e- ”
SRI.’i’.PUT’I’ASWAMY, ADV. FOR R-2, R-3 IS SERVED; ” ”

was APPEAL IS FILED UNDER 01213312 Mr; ‘oz? ‘Cree
AGAINST THE omen DATED O2.06.2(){)?.__PAS;5ED Iifi.-_N9.1e’._IN’n4 v
o.s.z~zo.3939/2006 on THE FILE OF THE xzev ADDL. 01?: elm, ‘JUDGE, –.

BANGALORE, (CCH No.6), IBSMISSING THE 15- F1.LED..U1~rD’ER”:§’I2pi:R39
RULES 1&20FCPC FORTJ. -. «.

THIS APPEAL COMING ON Fcafinmlseiori, Tijis.:D;&f,”

DELIVERED THE FOLLOWING:

1. order dated 02.06.2007
passed tiy jzhg V)<:){1'\r;AZ_tjE*txidl.:"Gi'1:_§r cm: Judge, Bangalore City, in

O.S.N9.8939]1¥QG6…diemie"é§ng IA no.1 filed by the pIaiI1tifi'-

" "v:aL,I3I3é:§%;'z1ii\.e}1eff'<=i.iI1. ….. V' »

'V filed the suit O.S.No.8939/2006 seeking

a the sale deed dated 10.05.2006 executed by

~ 'her in of the 1" defendant and the subsequent sale deed

.2006 executed by the 1'" defendant in favour of the

K defendant are 111111 and void. The plaintiif has also sought

'4 for permanent injunction to restrain defendants I to 3 «-

At./,_

MFA 8635.0'?

5

5. The court below having consfiened the respective
contentions taken by the parties and on examinatioryof the

materials placed before it, has prima facie found the

xecitals contained in the sale deed executed in 15*

defendant and also in favour of the defe11d_eeI:,: ‘ifwa;s :

that the ttansaction was apparently
title was transferred for as the
aiiegation of fraud and is vvoorieemed, the
Court below has found’ 2″‘ defendant is

concerned, he wgs. a bo;;éfid¢L’jpgrcjm_sc§g~ the ‘had nothing to do

. with the “¢§1;Eeg.éi:1.io1i§§of fiaea oi9’_”i1ii§1epresentafioz1 alleged, and

theIefoIe_th:e_ out a prima facie case and

the not lie in his favour.

«. ‘_ 6. appearixlg for the appellant submits that

misdirected itself in proceeding on the basis

tllatthex sought for temporaxy injunction to restrain

-V the from interferisag with his possession. He points

it i V by referring to the order under challenge that the premises

.’ on: the Court has proceeded is itself erroneous. He has

next contended that the findings recorded by the court below

MFA 8635.07
6

teaching upon the merits of the matter virtually tantamounts to

deciding the issue involving in the suit. In the

ailcgafions of fraud and misrepresentation x_r2é;}§{1é;”

contends that the court below was 1;9t justified

order of temporary injunction Or 0′

encumbexing the suit schedule.

7. Learned Counsel fqr the findings
recorded and submits 31¢ pIaintifi’ in going
back on the registercftd sak ‘ider on 10.05.2006
in favour of considerafion of

Rs.7,20;000,’.-1 ~ __ — 0

8. At thd dstgége of of the prima facic case and of

Afhe for temporary injunction, the Court is

the intention of the parties as discemable

dated 10.05.2006. The sa1d’ document which

a deed appazently conveying absolute right, title

Vv 0′ arid’ in favour of the purchaser and cannot be

as mortgage deed. It is for the p1ai11tifl’ to establish

A E case at the time oftrial and at this stage it has to be stated

MFA 8635.07
7

that the plaintifi has tisiled to make out a prima facie case that
the transaction contained in the sale deed dated 10.05.2006 was

in fact a mortgage and not a safe.

9. Even the allegations of fraud and

ievelled against the defendants is not prima facie _&

by producing any acceptable materials; again

for trial and it is for the plaintifi’ to

these assertions and aflegations.

10. It is true that the a wrong

premises Order X)G{IX Rules 1 as.-.

2 was forvdan «.orcier injunction to restrain the
defendants the p1a1’ntifi’s possession. In
fact “injt1ncn’on sought is to restrain the
and encnmbering the suit property.

But in the order does not further the case of
3 more as even for an order of temporary
restrain the defendants from alienating or

_ the property, all the ingredients of establishing a

facie case, balance of inconvenience and irreparable

MFA 8635.0′?

8

injury to be caused are required to be established. The plaintifi’

having failed to establish the requirelnents menfiorged_:’-kierein

above, the court below was right and justified in,_.r3:.eei’i:é_’i:3§:gi.

prayer made in the application.

I 1. For the aforementioned mas

appeal fails and the same is the facts
and circumstances of to the nature of
dispute raised before the appropriate to

duvet’ the court “‘suit: and dispose of the

Sd/1
Fudge

Kit .

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