The Karnataka High Court provided insights into the permissibility of filing a new suit for an injunction while a comprehensive suit for partition is still pending.

The Court allowed an Appeal against the order of the Trial Court Dismissing applications filed under order 39 rule 1 and 2 read with section 151 of the Civil Procedure Code, 1908 (CPC).

The Court observed that even though the relief being sought was not mentioned in the partition suit against respondent No.1, the behaviour of both parties could still be considered. This suit involved Defendant Nos. 5 to 7, who were not part of the previous suit, which justified the filing of a new cause of action.

The Bench of Justice H. P. Sandesh observed, “when the earlier suit is filed against respondent No.1 seeking the relief of partition and the same has been pending, the Court has to take note of the conduct of both the parties and no doubt, the plaintiff has not sought the relief in the very same suit. I have already pointed out that fresh cause of action arose and in the said suit, defendant Nos.5 to 7 are not parties and when defendant Nos.5 to 7 based on the said JDA came near the land, fresh cause of action arose and the suit is filed. If defendant Nos.5 to 7 are also parties to the said suit, then the arguments of the respondents that in the said suit itself, the plaintiff ought to have sought the relief could be accepted, however, defendant Nos.5 to 7 are not parties to the said suit”.

Senior Advocate Vevek Subba Reddy for the Plaintiff and Senior Advocate Dhyan Chinnappa appeared for the Respondent.

The plaintiff, being the granddaughter of Sri Krishnappa and the daughter of Sri K. Harish Kumar, stood as the sole legal heir to represent her father's share. Her legal action involved a property dispute, initiated due to Defendant Nos. 1 to 4 entering a Joint Development Agreement with Defendant Nos. 5 to 7. This resulted in the demolition of a building on the property and an attempted illegal construction. Seeking permanent and temporary injunctions to safeguard the property from interference and alienation, the plaintiff faced responses from the summoned defendants.

The Miscellaneous First Appeal was filed seeking to overturn the Trial Court's order, which had rejected various applications seeking reliefs related to the property dispute.

The Court framed the following issues: “Whether the appellant has made out a ground to allow the application filed Order 41 Rule 27 of CPC?

Whether the Trial Court has committed an error is dismissing the applications- I.A.Nos.1 to 3 filed by the plaintiff in coming to the conclusion that the plaintiff has not made out a prima facie case to grant temporary injunction as sought?

Whether the order of the Trial Court requires interference of this Court?

The Court allowed the consideration of documents under Order 41 Rule 27 of CPC, about a 1950 partition among Krishnappa's joint family members. The respondents acknowledged Krishnappa as the head of the joint family, and the property's origin in the mentioned partition. Although not presented before the Trial Court, the power of attorney and sale agreement were deemed relevant by the respondents to establish the Plaintiff's joint family membership. The Appellate Court insisted that these documents be considered for their merit and admissibility, emphasizing their relevance to the relief sought in the partition and permanent injunction.

The plaintiff's claim centred on her lineage as the daughter of Harish Kumar, Krishnappa's son, who originally owned the property. The ongoing legal proceedings involving other family members did not include the plaintiff, who sought inclusion in a prior lawsuit and filed a separate suit challenging a previous decree obtained by her relatives.

Examining whether the plaintiff received a share in the property, the Court noted that a sale deed from 2006 referencing partition, was countered by a power of attorney from 1983. The Court noted the plaintiff's decision to file a new suit due to changed circumstances, specifically the entry of defendant Nos. 5 to 7 into a Joint Development Agreement leading to a fresh cause of action.

The Court noted the Trial Court's error in assuming the comprehensive suit had already been filed, emphasising the need for a separate suit when defendants Nos. 5 to 7 initiated construction based on the Joint Development Agreement. The Court noted that this case filed independently, involved events post the previous suit, justifying a new cause of action. Despite similar applications in the Trial Court, the plaintiff filed a new suit against the original defendants, citing changed circumstances like the joint development agreement with defendant Nos. 5 to 7. The Court deemed the Trial Court's order capricious and unreasonable. The Bench emphasized the emergence of a new cause of action and defendant Nos. 5 to 7 not being part of the earlier application.

The Court considered the circumstances under which the suit was filed, highlighting the plaintiff's transparency and the conduct of respondent Nos. 1 to 4 entering a Joint Development Agreement during the pendency of the comprehensive suit. The Trial Court's failure to consider the circumstances and the urgency of relief during ongoing construction further reinforced the capricious nature of its order.

The Court placed reliance on the case of Gowrishankara Swamigalu v State of Karnataka and another [(2008) 14 SCC 411], reiterating the Appellate Court's discretion to rectify prejudice caused by an unreasonable Trial Court order. The Bench emphasized the Trial Court's omission in considering the defendant's conduct and withdrawal of Family Dispute Resolution proceedings, crucial factors in assessing the plaintiff's prima facie case.

Accordingly, the Court allowed the appeal, set aside the impugned order and granted relief to the Plaintiff.

Cause Title: Jagadishwari v M. Revathi (2024:KHC:2577)

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