Karnataka High Court
Sri N Ashok vs Sri M Narasimhaiah … on 19 February, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 676 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.676 OF 2025 (CPC)
BETWEEN:
SRI N. ASHOK
S/O. M. NARASIMHAIAH,
AGED ABOUT 68 YEARS,
R/AT. BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPPANAHALLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-567124.
...APPELLANT
(BY SRI SREEVATSA SENIOR ADVOCATE A/W.
SRI. NARASIMHA PRASAD S. D., ADVOCATES)
AND:
Digitally signed
by 1. SRI M. NARASIMHAIAH,
S/O. LATE. MUNISHAMAPPA,
MALLIKARJUN
RUDRAYYA
KALMATH
Location: High SINCE DEAD BY HIS LRS.
Court of
1A. SMT. JAYAMMA
Karnataka,
Dharwad
Bench
W/O. LATE NARASIMHAIAH,
AGED ABOUT 82 YEARS,
R/AT. SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-567124.
2. SRI N. RAKASH
S/O .M. NARASIMHAIAH,
AGED ABOUT 62 YEARS,
R/AT.NO.8/1,
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CAUVERY THEATRE COMPLEX
PRIVATE LIMITED,. SANKEY ROAD,
PALACE GUTTAHALLI,
BENGALURU-560003.
3. SRI N. MUTHURAJU
S/O. M. NARASIMHAIAH,
AGED ABOUT 59 YEARS,
R/AT. BHARATH SPUN AND CONCRETE
POPE FACTORY PREMISES
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BANGALORE NORTH TALUK,
BANGALORE-562157.
4. SMT. SUJATHA N.,
W/O. LATE SRINIVAS,
D/O. M. NARASIMHAIAH,
AGED ABOUT 58 YEARS,
R/AT. 'SHILPA' NO.866, ROYAL PARK,
SRINIVAS REDDY LAYOUT,
AVALAHALLI, ANJANAPURA POST,
BENGALURU-560062.
5. SRI N. ASHWATHNARAYANA,
S/O. LATE M. NAGAPPA,
SINCE DEAD BY HIS LRS
5A. SMT. R. INDRAMMA
W/O. LATE ASHWATHNARAYANA,
AGED ABOUT 62 YEARS.
5B. VIJAYAKUMAR A.
S/O. LATE ASHWATHNARAYANA
AGED ABOUT 42 YEARS,
RESPONDENT NO.5A & 5B ARE
R/AT.BHARATH SPUN AND CONCRETE
POPE FACTORY PREMISES
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BANGALORE NORTH TALUK,
BANGALORE-562157.
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6. SRI N. RAGHU,
S/O. LATE M. NAGAPPA,
AGED ABOUT 69 YEARS,
R/AT. BHARATH SPUN AND CONCRETE
POPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BANGALORE NORTH TALUK,
BANGALORE-562157.
7. SMT. NARASAMMA,
D/O. LATE NAGAPPA,
AGED ABOUT 75 YEARS,
R/AT.C/O.ASHWATHNARAYAN,
BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK-562157,
BENGALURU.
8. SMT. MUTHAMMA,
W/O. LATE LAKSHMAIAH,
AGED ABOUT 87 YEARS,
R/AT. C/O. L. RAVINDRA,
R/AT. BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
9. SMT. ANJINAMMA,
W/O. LATE LAKSHMAIAH,
AGED ABOUT 67 YEARS,
R/AT.C/O. L. PARTHA,
R/AT.BHARATH SPUN AND
CONCRETE PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
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10. SRI L. RAVINDRA,
S/O. LATE LAKSHMAIAH,
AGED ABOUT 67 YEARS,
R/AT.BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
11. SRI L. MUNISWAMY,
S/O. LATE LAKSHMAIAH,
AGED ABOUT 59 YEARS,
R/AT.C/O.L.RAVINDRA,
BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
12. SRI L. PARTHA,
S/O. LATE LAKSHMAIAH,
AGED ABOUT 57 YEARS,
R/AT BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
13. SRI L. NAVEEN KUMAR S/O. LATE LAKSHMAIAH,
AGED ABOUT 44 YEARS, R/AT. C/O. L. PARTHA,
BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
14. SMT. PARVATHI D/O. LATE LAKSHMAIAH,
W/O. MUNNE GOWDA, MAJOR,
R/AT.VANI CONCRETE FACTORY,
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CHILKUNDA VILLAGE,
HUNSUR TALUK, MYSORE DISTRICT.
15. DR. HEMAVATHI D/O. LATE LAKSHMAIAH,
MAJOR, R/AT.NO.12,
MOUNT VIEW ENCLAVE,
BETTAHALASURU POST,
BENGALURU NORTH TALUK-562157.
16. SMT. SHASHIKALA D/O. LATE LAKSHMAIAH
W/O. S. K. SOMASHEKAR,
MAJOR, R/AT.NO.235, 9TH CROSS,
K.R.PURAM, HASSAN-573201.
17. SMT. ROOPA D/O. LATE LAKSHMAIAH,
MAJOR, R/AT. C/O. PARTHA,
BHARATH SPUN AND CONCRETE
PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
18. SRI ARJUN S/O. C. ASHWATHNARAYANA, MAJOR,
R/AT. HEMAVATHI SPUN CONCRETE
PIPE FACTORY, KANDALI VILLAGE,
KANDALLI POST,
HASSAN TALUK AND DISTRICT.
19. SMT. NETHRAVATHI D/O. C. ASHWATHNARAYANA,
W/O. PARTHA, MAJOR,
R/AT. BHARATH SPUN AND
CONCRETE PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
20. SMT. THARA D/O. C. ASHWATHNARAYANA,
W/O. SRINIVASA GOWDA, MAJOR,
R/AT.NO.4, MOUNT VIEW ENCLAVE,
BETAHALASURU POST,
BENGALURU NORTH TALUK-562157.
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21. SMT. CHAITHRA D/O. C. ASHWATHNARAYANA,
W/O. VIJAYAKUMAR, MAJOR,
R/AT. BHARATH SPUN AND
CONCRETE PIPE FACTORY PREMISES,
SONNAPANAHALLI, JALA HOBLI,
BETTAHALASURU POST,
BENGALURU NORTH TALUK,
BENGALURU-562157.
22. SRI RAMACHANDRA S/O. GURUSWAMY,
AGED ABOUT 53 YEARS,
R/AT. SRIKANTAPURA, MATHURUMAJARE,
NIDIGE HOBLI, SHIMOGA TALUK.
23. SRI NARASIMHE GOWDA S/O. JAVARE GOWDA,
AGED ABOUT 53 YEARS,
R/AT. SIDDARAHALLI VILLAGE,
MATHURUMAJARE, NIDIGE HOBLI,
SHIMOGA TALUK.
24. SRI SWAMY GOWDA S/O. SIDDEGOWDA,
AGED ABOUT 64 YEARS,
R/AT. SIDDARAHALLI VILLAGE, MATHURUMAJARE,
NIDIGE HOBLI, SHIMOGA TALUK.
25. SMT. AARADHANA JHUNJHUN WALA,
W/O. SRI SUDHIR JHUNJHUNWALA,
AGED ABOUT 59 YEARS,
R/AT.NO.3/1/1, ALI ASKAR ROAD,
BENGALURU REP. BY HER GPA HOLDER
SRI P. V. RAMAKRISHNAN,
S/O. K. V. SHANKARAVARIER,
R/AT.NO.280, 1ST MAIN ROAD,
JAGADISHNAGAR, NEW THIPPASANDRA POST,
BENGALURU-75.
26. SMT. P. B. ARATHI,
W/O. SRI N. MUTHURAJ,
AGED ABOUT 43 YEARS,
R/AT.SONNAPANAHALLI VILLAGE,
BETTAHALASURU POST, JALA HOBLI,
BENGALURU NORTH TALUK.
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27. BRIGADE ENTERPRISES LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956,
HAVING ITS REGISTERED HEADQUARTERS AT:
29TH AND 30TH FLOOR WORLD TRADE CENTER,
BRIGADE GATEWAY COMPUS,
NO.26/1, DR. RAJKUMAR ROAD,
MALLESHWARAM, RAJAJINAGAR, BENGALURU,
KARNATAKA-560055, INDIA.
REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE, MR. VARUN TALLAM.
...RESPONDENTS
(BY SRI D. R. RAVISHANKAR, SENIOR COUNSEL A/W.
DR. P. M. NARAYANA SWAMY, ADV. FOR R2, R6 & R10;
SRI SRINIVASA RAGHVAN V., SENIOR COUNSEL A/W.
SRI HARSHA GUPTA, ADV.FOR R27;
SRI A. MADHUSUDHAN RAO, ADV. FOR R14 TO R17;
NOTICE TO R1(A), R3, R4, R5(A), R5(B), R9, R12, R19, R20,
R21, R24, R26 ARE SERVED;
NOTICE TO R11 HELD SUFFICIENT;
NOTICE TO R13, R23 AND R25 ARE DISPENSED WITH;
NOTICE TO R18 IS HELD SUFFICIENT;
NOTICE TO R7, R8 AND R22 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(R) OF THE CODE OF CIVIL PROCEDURE,
PRAYING TO CALL FOR THE RECORDS AND EXAMINE THE SAME
AND SET ASIDE THE IMPUGNED ORDER DATED 07.12.2024 IN
O.S.NO.3248/2012 PASSED BY THE LEARNED IX ADDITIONAL
CITY CIVIL JUDGE, BENGALURU IN DISMISSING APPLICATION
FILED UNDER ORDER 39 RULE 1 & 2 OF CPC AND
CONSEQUENTLY ALLOW THE SAID APPLICATION BY ALLOWING
THIS APPEAL WITH COSTS AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
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CAV JUDGMENT
This appeal is filed by the plaintiff questioning the
order passed on the application filed under Order XXXIX
Rules 1 and 2 of the Code of Civil Procedure, 19081, in
O.S.No.3248/2012 dated 07.12.2024, on the file of IX
Additional City Civil and Sessions Judge, Bangalore,
thereby, the application seeking grant of temporary
injunction restraining the defendants from putting up any
construction or from changing the nature of the suit
schedule item No.26 was dismissed.
2. The plaintiff has filed the suit seeking partition
and separate possession of 1/5th share in the suit schedule
‘A’ properties and 1/3rd share out of the said 1/5th share in
suit schedule ‘B’ properties along with other consequential
reliefs.
3. The application for temporary injunction pertains
only to suit schedule item No.26, namely, property bearing
1
Hereinafter referred to as the ‘CPC‘
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No.20/B situated at Aramane Nagar, Guttahalli Bangalore
(Cauvery Theatre), measuring to an extent of 45622
sq.ft2. In support of the application, in the affidavit it is
deposed that in the Memorandum of Agreement dated
19.07.2023, the plaintiff’s name was shown, but signature
was left blank, hence the plaintiff has not consented for
agreement.
4. It is further deposed that, in the meantime, the
defendants have entered into a Joint Development
Agreement with proposed respondent No.27, M/s. Brigade
Enterprises Limited, and therefore, the defendants have no
independent right to enter into such Joint Development
Agreement in respect of the appeal schedule property. If
any construction is made, it would deprive the right of the
plaintiff to claim his share in the appeal schedule property.
Hence, the plaintiff filed the application seeking grant of a
temporary injunction restraining the defendants from
2
Hereinafter referred to as the ‘appeal schedule property’
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putting up any construction or changing the appeal
schedule property pending disposal of the suit.
5. Learned Senior Counsel Sri. Sreevatsa for the
appellant/plaintiff submitted that the appeal schedule
property is joint family property and not the exclusive
property of a company known as “Cauvery Theatre
Complex Private Limited”. Therefore, the plaintiff, being a
co-sharer/Member of the Joint Family, is entitled to a
share in the appeal schedule property. It is further
contended that permitting any construction on the appeal
schedule property would affect and deprive the plaintiff
and defendants No.14 to 17, who are sisters of their
legitimate shares. Hence, he prayed for an order of
temporary injunction.
6. It is further submitted that, with reference to the
admission of DW.1, during the course of cross-
examination held on 29.06.2024, DW.1 has admitted that
the Board Resolution of the Company has not been
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produced before the Court. It is also admitted that L.
Ravindra, Raghu and Prakash executed power of attorney
to respondent No.27. Learned Senior Counsel stressed
that DW.1 has admitted that the appeal schedule property
is a joint family property. Therefore, when a prima facie
case is made out establishing that the appeal schedule
property is joint family property, any alteration in the
nature of the property would cause deprivation of claiming
legitimate shares by other members of joint family, who
are sisters including the plaintiff. It is further submitted
that the defendants have executed a joint development
agreement with proposed respondent No.27, M/s Brigade
Enterprises Limited, which constrained the plaintiff to file
an application for temporary injunction to protect both the
property and lawful shares of plaintiff and defendants
Nos.14 to 17 (sisters/daughters). However, these crucial
aspects were not properly considered by the Trial Court
while adjudicating the application for temporary injunction.
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7. It is further submitted that in the Memorandum of
Agreement dated 19.07.2023 entered into between the
Cauvery Theatre Complex Private Limited and respondent
No.27, Brigade Enterprises Limited, the plaintiff has not
affixed his signature confirming the joint development
agreement. It is further submitted that the said
Memorandum of Agreement dated 19.07.2023 was
executed during the pendency of the suit. However, in the
said agreement, the Cauvery Theatre Complex Private
Limited has recited that the appeal schedule property is
not the subject matter of any litigation or proceedings
before any Court of law or authority, which is contrary to
the admitted fact that the appeal schedule property forms
part of the subject matter of litigation of present suit for
partition. Therefore, the said agreement, having been
executed during the pendency of the suit, is not a bonafide
transaction and is intended solely to deprive the plaintiff
and other co-sharers of their legitimate shares.
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8. It is further submitted that respondent No.27, M/s
Brigade Enterprises Limited, issued a public notice
published in Times of India, informing the public of its
proposed joint venture. Immediately thereafter, the
plaintiff issued a reply notice to respondent No.27. Despite
the same, respondent No.27, M/s Brigade Enterprises
Limited, proceeded to execute joint development
agreement. Such conduct clearly demonstrates lack of
bonafides and amounts to a deliberate attempt to
prejudice and diminish the plaintiff’s and other female
members of joint family lawful claim to their legitimate
shares in the appeal schedule property.
9. Further, it is submitted that in the said joint
development agreement, in the annexure containing the
list of original title documents, at Sl.No.16 dated
22.07.1971, reference is made to a deed of partnership
executed among Nagappa, M. Lakshmaiah, M. Narasimiah
and Aswathnarayan and N. Raghu. When this being the
fact, although the defendants contended that the appeal
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schedule property exclusively belongs to Cauvery Theatre
Complex Private Limited, it is evident that upon
reconstitution of the deed of partnership on 01.04.1985,
the plaintiff was also inducted as one of the partners.
Therefore, the plaintiff has a strong prima facie case and
the balance of convenience to show that the appeal
schedule property is joint family property. In view of the
same, the plaintiff has a prima facie case and balance of
convenience to claim a share in the appeal schedule
property. However, the defendants, without the knowledge
of the plaintiff and behind his back, have entered into a
joint venture agreement with respondent No.27, M/s.
Brigade Enterprises Limited, which is nothing but an
attempt to deny the legitimate share of the plaintiff. Such
conduct clearly demonstrates the lack of bona fides on the
part of respondent No.27 and other defendants. This
aspect has not been property appreciated by the Trial
Court while considering the application for grant of
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temporary injunction. Hence, prays to allow the appeal
and grant an order of temporary injunction.
10. Learned counsel, Sri. Sreevatsa, places reliance
on the following judgments:
(i) Marirudraiah and Others Vs. B.
Sarojamma and Others3;
(ii) State of Uttar Pradesh Vs. Subhash
Kumar Singh Tomar4;
(iii) Chander Bhan (D) through Lr Sher
Singh Vs. Mukhtiar Singh and Others5;
11. Learned counsel, Sri. A Madhusudhan Rao,
appearing for respondents No.14 to 17 (defendants No.14
to 17), argued in line with the submissions of the learned
counsel for the plaintiff submitted that Cauvery Theatre
Complex Private Limited was purchased through four sale
deeds and constitutes joint family property. He further
3
(2009) 12 Supreme Court Cases 710
4
(2009) 12 Supreme Court Cases 713
5
2024 SCC Online SC 761
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submitted that respondents No.14 to 17 are not parties to
the joint development agreement dated 19.07.2023, which
is a fraudulent act intended to deprive the legitimate
shares of the plaintiff and respondents No.14 to 17. The
property, in which, Cauvery Theatre Complex Private
Limited exist belongs to the joint family.
12. It is further submitted that respondents No.14 to
17 were not parties to the meeting held wherein the other
defendants allegedly resolved to enter into a mutual
understanding. Therefore, whatever memorandum of
agreements arrived at with respondent No.27 is nothing
but a transaction hit by the doctrine of lis pendens, as the
suit is already pending for consideration and the appeal
schedule property is joint family property. Respondent
No.27 has issued a legal notice dated 11.08.2023, which
was replied by notice dated 17.08.2023.
13. But in the memorandum of agreement, it is
falsely contended that no litigation was pending. However,
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when the suit is pending, the defendants entered into a
joint development agreement and memorandum of
agreement dated 19.07.2023, which clearly constitutes a
lis pendens transaction and cannot be entertained.
Therefore, it is contended that any transaction entered
into during lis pendens cannot prejudice the rights of co-
sharers of the joint family, whose interest are required to
be protected. Hence, prays for grant of an order of
temporary injunction.
14. On the other hand, learned Senior Counsel,
Sri. D.R. Ravishankar, appearing for respondents No.2, 6
and 10 submitted that the appeal schedule property (Item
No.24 in the suit schedule property), is not included in the
partition dated 02.05.2000. Therefore, the appeal
schedule property is not the joint family property. It is
submitted that the Cauvery Theatre Complex Private
Limited consisting of Directors, Managing Director and the
plaintiff is also one of the Director of the company
receiving a monthly remuneration of Rs.15,000/- and
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Rs.7,250/- canteen remuneration, and annually sharing
the profits and losses among the directors and same has
been clearly accounted and proper books of account are
maintained and the plaintiff is also visiting to the said
theatre and he is also one of the director participating in
the meetings and signed the minuts book and books of
account, by accepting the books of account. It is further
submitted that there is no question of misusing and not
properly accounting does not at all arise for consideration,
since there is an internal and external auditor maintaining
the account books and submitting the same to the
registrar of company, income tax, sales tax and other
concerned department, for which, the plaintiff is also a
part and parcel of the participant, and the question of
partition in respect of private limited company does not at
all arise for consideration and the apportionment of share
in respect of private limited company having its own rules
contemplated under the Company Law. Therefore,
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submitted that the appeal schedule property is not the
joint family property and thus not amenable for partition.
15. It is further submitted that the Cauvery Theatre
Complex Private Limited passed a resolution dated
12.07.2023 in the Board Meeting held on the said date,
wherein the Board discussed and decided to select a Joint
Development Partner. In the said meeting, the joint
development proposal with Brigade Group (proposed
respondent No.27) was considered and approved, and a
resolution to that effect was duly passed. Therefore, the
plaintiff, being a Director of the Company, was present at
the said meeting and has affixed his signature to the
resolution dated 12.07.2023, which amounts to his
unequivocal acceptance and consent to the said resolution.
Therefore, the plaintiff himself has consented to the joint
development and construction of a commercial building in
Item No.26 of the suit schedule property (appeal schedule
property).
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16. Further submitted that the terms mentioned
supra in the said agreement are binding on the plaintiff,
and pursuant to such consent, the Cavery Theatre building
was demolished. However, despite having passed such
resolution and being a signatory thereto, the plaintiff has
subsequently resigned and is now objecting to the
construction, which clearly amounts to approbation and
reprobation. Therefore, by this, the plaintiff has prima
facie accepted the joint development, and his conduct
establishes that the suit schedule property is not excluded
from the joint venture. Hence, the plaintiff is deemed to
have given his consent to the joint development venture,
as he is also one of the beneficiaries of the said joint
development.
17. It is further submitted that if a commercial
complex is constructed on the appeal schedule property
and is developed, then in the event the suit is decreed, the
plaintiff would also be entitled to one of the share that will
be beneficial to him and also to defendants No.14 to 17.
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However, objection to the very construction of the building
itself clearly shows his intention to prevent any progress
or development with the appeal schedule property.
18. It is submitted that the Memorandum of
Association at Clause Nos.8 and 9 are very clearly enabling
the parties to unite, co-operate, amalgamate or enter into
partnerships for development etc., in the interest of the
property. When the plaintiff is also a beneficiary in the said
partnership firm, but objecting for construction of
commercial complex over the property, which shows the
malafide intention of the plaintiff causing inconvenience to
other family members in order to see not to get fruits out
of commercial complex.
19. Further submitted that there is a recital in the
Memorandum of Association that the property can be
demolished and to reconstruct the building thereon either
commercial or residential complex for the benefit of the
company represented by its directors. The plaintiff, being
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one of the Director in the company, and is also beneficiary
of receiving monthly remuneration, etc., therefore, the
plaintiff is estopped from objecting and making further
development over the suit schedule property. Therefore,
submitted that the Trial Court has rightly rejected the
application of the plaintiff, as it is filed with oblique
motive. Therefore, prays to dismiss the appeal.
20. There is a joint development agreement between
the Cauvery Theatre Complex Private Limited Company
and M/s. Brigade Enterprises Limited, the proposed
respondent No.27. The proposed respondent No.27 was
not a party to the suit and has therefore filed an
application under Order 1 Rule 10(2) read with Section 151
of the Code of Civil Procedure, 19086, seeking
impleadment. As per respondents No.2, 6 and 10
(defendant Nos.2, 6 and 10), they have entered into a
joint development agreement with the proposed
6
Hereinafter referred to as the ‘CPC‘
– 23 –
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respondent No.27. Although the proposed respondent
No.27 is a stranger to the family of the plaintiff and other
defendants, by virtue of the joint development agreement,
the proposed respondent No.27 seeks to be impleaded in
the appeal.
21. Learned Senior Counsel, Sri. Srinivasa Raghavan,
appearing for the Brigade Enterprises, the proposed
respondent No.27, submitted that the plaintiff, being a
Director of the Cauvery Theatre Complex Private Limited,
does not have any specific claim or ascertainable share in
the appeal schedule property. Therefore the plaintiff does
not have locus standi to seek partition of the appeal
schedule property, as the said property belongs to
Cauvery Theatre Complex Private Limited. The plaintiff,
being one of the Directors of the company, had affixed his
signatures to the joint development agreement executed
with Brigade Enterprises, the proposed respondent No.27.
Therefore the proposed respondent No.27 is a necessary
party in the appeal and also in the suit.
– 24 –
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22. It is submitted that the application for
impleadment has been filed and is pending consideration
in the suit. It is further submitted that the company is a
separate legal entity, distinct from its share holders and
that the property owned by the company is the property of
the company itself and that of the shareholders. It is
further submitted that the plaintiff, being a signatory to
the Board of Resolution, is estopped from contending that
the Cauvery Theatre is also a joint family property. Since
the order passed on the application would directly affect
the rights of the proposed respondent No.27, therefore the
applicant prays to allow the application and seeks
permission to implead as respondent No.27 in the appeal.
Hence, prays to allow the application and dismiss the
application filed for temporary injunction.
23. Further, it is submitted that the proposed
respondent No.27 has incurred an expenditure of Rs.30
crores towards construction of the complex under the joint
development venture. At this stage, if an order of
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temporary injunction is granted, it would cause irreparable
loss and injury, as it would adversely affect the
construction of complex and destroy the value of the
property. Therefore prays for allowing the application for
impleadment.
24. Learned Senior Counsel Sri. Srinivasa Raghavan
appearing for the impleading applicant relies on the
judgments of Hon’ble Supreme Court, which are as
follows:
i) Acqua Borewell Private Limited Vs. Swayam
Prabha and Others7.
ii) Rachappa Sathish Kumar and Another Vs.
M/s. Eaglesight Media Private Limited and
Others8.
iii) Ramesh Kumar Bhagchandka Vs. Mahesh
Kumar Bhagchandka9.
7
(2022) 15 SCC 511
8
W.P.No.13365/2025 decided on 25.06.2025
9
2014 SCC Online Del 1324
– 26 –
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v) Sunil Siddharthbhai Vs. Commissioner of
Income Tax, Ahmedabad, Gujarat11
25. Having heard the arguments from both the
parties, the following points would arise for consideration:
(i) Whether, under the facts and
circumstances involved in the case, the
impleading applicant, namely, Brigade
Enterprises makes sufficient grounds to
implead in the appeal as respondent
No.27?
(ii) Whether, under the facts and
circumstances involved in the case, the
plaintiff makes out prima facie case on the
basis of the materials produced before the
Trial Court so as to grant order of
temporary injunction?
(iii) Whether, under the facts and
circumstances involved in the case, the
plaintiff makes out case of balance of
convenience on the basis of the materials
10
C.S.No.86/2024 decided on 08.11.2024
11
(1985) 4 SCC 519
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produced before the Trial Court so as to
grant an order of temporary injunction?
(iv) Whether, under the facts and
circumstances involved in the case, if an
order of temporary injunction is not
granted, then the plaintiff would suffer any
irreparable loss or injury?
(v) Whether the order passed by the Trial
court in declining to grant injunction suffers
any perversity or illegality?
Point No.(i)
26. The impleading applicant/proposed respondent
No.27 (Brigade Enterprises Limited) has filed the
application I.A.No.2 of 2025 under Order I Rule 10(2) of
CPC to come on record as respondent No.27 on the ground
that the proposed respondent No.27 (Brigade Enterprises
Limited) has entered into a joint development agreement
on 06.12.2023 with M/s. Cauvery Theatre Complex Private
Limited represented by defendant Nos.2, 6 and 10.
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27. The plaintiff had filed a suit for partition and
separate possession of certain properties, including the
appeal schedule property. M/s. Cauvery Theatre Complex
Private Limited Company and Brigade Enterprises Limited
have entered into a memorandum of agreement dated
19.07.2023 contending that the company has passed a
resolution for construction of a commercial complex on the
appeal schedule property, for which the plaintiff was also
made a party and put his signature as confirming director.
Though the plaintiff has denied that he has put his
signature as confirming director, upon considering the
resolution passed in the board of meeting held on
19.07.2023 to discuss and choose the joint development
partner, there was a proposal to go with Brigade
Enterprises Limited for joint development, in which the
resolution was passed and contains signature of the
plaintiff. According to the plaintiff, it is a forged one, but it
appears that there is a signature in the said board meeting
resolution. Whether signature is forged is matter for trial
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and at this stage, not to be decided on this aspect of
forgery. Hence, M/s. Cauvery Theatre Complex Private
Limited Company has entered into an agreement of joint
venture and ultimately a joint development agreement
executed on 06.12.2023 with Brigade Enterprises Limited.
In what way the said joint venture affects the right of the
plaintiff and other defendants is different aspect, but with
respect to the property which is the subject matter in the
suit, after filing of the suit and during pendency of the
suit, this joint development agreement is executed.
Therefore, Brigade Enterprises Limited is found to be a
necessary party in this appeal proceedings because
whatever orders are to be passed will directly affect
Brigade Enterprises Limited; hence, Brigade Enterprises
Limited is not only a proper party, but also a necessary
party.
28. After filing the suit, after 10 years, the plaintiff
has filed an application for temporary injunction
restraining the defendants and Brigade Enterprises Limited
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from putting up any construction or changing the nature of
appeal schedule property; therefore, when this is the relief
claimed, the Brigade Enterprises Limited is found to be a
necessary party having right to participate in this appeal.
29. It is contention of the plaintiff that the appeal
schedule property is joint family property, but the
directors of M/s. Cauvery Theatre Complex Private Limited
are contending that it is not joint family property. Whether
the appeal schedule property is joint family property or not
is a question to be considered in the suit, but M/s. Cauvery
Theatre Complex Private Limited has entered into a joint
development agreement with Brigade Enterprises and the
prayer sought for in the application is not to put any
construction or change the nature of land which directly
affects proposed respondent No.27. Therefore, by virtue
this, Brigade Enterprises Limited is found to be necessary
party in this appeal.
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30. It is argued by the learned counsel appearing on
behalf of respondent No.27/Brigade Enterprises Limited
that the plaintiff has suppressed the fact that he is one of
the directors of M/s. Cauvery Theatre Complex Private
Limited and he is also a signatory to the board of
resolution dated 12.07.2023 and the same is disputed by
the plaintiff. But it is the case of Brigade Enterprises
Limited that the property on which M/s. Cauvery Theatre
Complex Private Limited was in existence was offered to
Brigade Enterprises Limited for joint development. In this
regard, copies of board resolution, memorandum of
agreement and joint development agreement are
produced; therefore, Brigade Enterprises Limited is also to
be arrayed as a party in this appeal as found to be
necessary party.
31. The plaintiff has claimed a temporary injunction
against the defendants, though Brigade Enterprises
Limited is not a party in the suit. In this appeal, whatever
orders are passed will affect Brigade Enterprises Limited.
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According to Sri. Srinivasa Raghavan, learned Senior
Counsel appearing on behalf of the Brigade Enterprises,
the company has invested more than Rs.100 crores in
planning, operationalizing and executing the joint
development of the said property and also spent about
Rs.30 crores towards demolition of the existing structure
and excavation of the lands etc., and engaged various
sub-contractors for various works, as deposed in the
affidavit at Paragraph No.12 of I.A.No.2 of 2025 filed for
impleading the applicant/proposed respondent No.27 as
respondent No.27 in this appeal. Further submitted that
the property is excavated for depth of about 20 to 30 feet
and if this is not filled with construction during rainy
season it will be filled up with water, in such an event, the
entire property and surrounding properties will be severely
damaged. Hence, Brigade Enterprises Limited is found to
have a legitimate interest in this appeal and therefore, it is
necessary to implead Brigade Enterprises Limited as a
party in the appeal. Accordingly, Brigade Enterprises
– 33 –
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Limited is permitted to come on record as respondent
No.27. Thus, the application I.A.No.2 of 2025 filed for
impleading the proposed respondent No.27 as respondent
No.27 in this appeal is liable to be allowed. Accordingly,
I.A.No.2 of 2025 is allowed and the Brigade Enterprises
Limited is permitted to participate in the appeal
proceedings.
32. Further, Sri. Srinivasa Raghavan, learned Senior
Counsel appearing on behalf of Brigade Enterprises Limited
addressed arguments on the application I.A.No.2 of 2025
filed for impleading the applicant as respondent No.27, but
also on merits in the appeal explaining how the appeal
filed for temporary injunction and why the same is liable to
be dismissed. Accordingly, I answer point No.(i) in the
affirmative as Brigade Enterprises Limited is also a
necessary party as respondent No.27 in this appeal.
Point Nos.(ii) to (iv)
– 34 –
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33. The plaintiff has filed the suit for partition and
separate possession.
34. It is vehemently submitted by the learned Senior
Counsel appearing for the appellant/plaintiff that the
appeal schedule property is joint family property and not
the property of the company. Therefore, there exists a
rival dispute regarding the nature of the property. It is
pertinent to mention here that in the context of the nature
of property, DW.1 has admitted in cross-examination that
the appeal schedule property is joint family property and
that all members have rights over it.
35. Admittedly, the Cauvery Theatre Complex building
has been demolished and this dispute regarding whether it
is joint family property or whether it is company property
is yet to be adjudicated in the trial. The defendants
contend that in the resolution dated 12.07.2023 pertaining
to Cauvery Theatre Complex Private Limited, the plaintiff
participated and his signature appears in the said
– 35 –
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resolution, but the learned counsel for the plaintiff
disputes the said signature, alleging that it has been
forged by mentioning his name. At this stage, it cannot be
determined whether the plaintiff is a signatory to the said
resolution or not. It is to be determined in the trial. The
defendants are making efforts to develop the property.
36. The learned Senior Counsels, Sri. D.R.
Ravishankar and Sri. Srinivasa Raghavan submitted that if
the appeal schedule property is developed as per the joint
development agreement for construction of a commercial
complex, then the plaintiff and other co-sharers would also
be benefited and no prejudice or harm would be caused to
the rights of plaintiff and defendants No.14 to 17.
Therefore, it is prayed that the defendants be permitted to
proceed with development of property, subject to the
result of the suit and in accordance with Section 52 of the
Transfer of Property Act, 188212. Much argument is
12
Hereinafter referred to as the ‘T.P. Act‘
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advanced regarding the internal affairs of the Cauvery
Theatre Complex Private Limited, including its assets,
liabilities and profit sharing. However, discussion of the
company’s internal affairs is unnecessary at this stage.
The question for consideration in this regard is, what
would be the effect granting or refusing an injunction?
Whose rights would be prejudiced by such grant or refusal
is alone to be considered in this appeal.
37. As submitted by both the learned Senior
Counsels, the entire Cauvery Theater Complex is
demolished and earthwork has commenced and at this
stage, the plaintiff filed an application for temporary
injunction, which was refused by the Trial Court. By virtue
of the interim order granted by this Court, the earthwork
relating to the construction has been stopped. Whether the
appeal schedule property is joint family property or
exclusively the property of the company is a matter to be
adjudicated in full-fledged trial. In this context, the
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propriety of granting or refusing temporary injunction
must be appreciated.
38. Learned Senior Counsel for the appellant/plaintiff
submitted that during the pendency of the suit, an
agreement dated 19.07.2023 was entered into with
Cauvery Theatre Complex Private Limited and questioned
bonafideness of other defendants and proposed
respondent No.27, Brigade Enterprises. When different
transactions are entered into during pendency of a suit,
Section 52 of the T.P. Act is attracted; however such
transactions cannot be termed as void transactions.
Section 52 of the T.P. Act protects the rights of co-sharers.
In the present case, construction has just commenced but
is not completed. Though Clause-D of the Memorandum of
Agreement dated 19.07.2023 states that no litigation is
pending, but admittedly the said agreement was executed
during pendency of the suit. Such transactions are subject
to the result of the suit but are not void.
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39. In this regard, I place reliance on the judgment of
the Hon’ble Supreme Court in the case of Vinod Seth Vs.
Devinder Bajaj and Other13, which reads as under:
41. Having found that the direction of the High
Court is unsustainable, let us next examine whether
we can give any relief to defendants within the four
corners of law. The reason for the High Court directing
the plaintiff to furnish an undertaking to pay damages
in the event of failure in the suit, is that Section 52 of
the Transfer of Property Act would apply to the suit
property and the pendency of the suit interfered with
the defendant’s right to enjoy or deal with the
property. Section 52 of the TP Act provides that during
the pendency in any court of any suit in which any
right to immovable property is directly and specifically
in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceedings so as to affect the rights of any other
party thereto under any decree or order which may be
made therein except under the authority of the court
and on such terms as it may impose. The said section
incorporates the well-known principle of lis pendens13
(2010) 8 Supreme Court Cases 1
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which was enunciated in Bellamy v. Sabine [1857 (1)
De G & J 566 : 44 ER 842]
“It is, as I think, a doctrine common to the
Courts both of law and equity, and rests, as I
apprehend, upon this foundation – that it would
plainly be impossible that any action or suit
could be brought to a successful termination, if
alienations pendente lite were permitted to
prevail. The plaintiff would be liable in every
case to be defeated by the defendant’s
alienating before the judgment or decree, and
would be driven to commence his proceedings
de novo, subject again to be defeated by the
same course of proceeding.”
42. It is well-settled that the doctrine of lis
pendens does not annul the conveyance by a party to
the suit, but only renders it subservient to the rights
of the other parties to the litigation. Section 52 will
not therefore render a transaction relating to the suit
property during the pendency of the suit void but
render the transfer inoperative insofar as the other
parties to the suit. Transfer of any right, title or
interest in the suit property or the consequential
acquisition of any right, title or interest, during the
pendency of the suit will be subject to the decision in
the suit.
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43. The principle underlying section 52 of TP Act is
based on justice and equity. The operation of the bar
under section 52 is however subject to the power of
the court to exempt the suit property from the
operation of section 52 subject to such conditions it
may impose. That means that the court in which the
suit is pending, has the power, in appropriate cases,
to permit a party to transfer the property which is the
subject-matter of the suit without being subjected to
the rights of any part to the suit, by imposing such
terms as it deems fit. Having regard to the facts and
circumstances, we are of the view that this is a fit
case where the suit property should be exempted from
the operation of Section 52 of the TP Act, subject to a
condition relating to reasonable security, so that the
defendants will have the liberty to deal with the
property in any manner they may deem fit, inspite of
the pendency of the suit.
40. Learned Senior Counsel appearing for the
appellant/plaintiff and respondents No.14 to 17
(defendants No.14 to 17) also referred to the public notice
issued by respondent No.27 in the Times of India, to which
the plaintiff replied. Though the Memorandum of
– 41 –
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Agreement is subject to the result of the suit, but certainly
it cannot be termed as void transaction.
41. The cross-examination of PW.1 (plaintiff) reveals
that he admitted being one of the Directors of Cauvery
Theatre Complex Private Limited and being aware of
developments relating to the Theatre. Whether he
attended the meeting held on 12.07.2023 and signed the
resolution is a matter to be considered in the trial. Prima
facie, it is revealed that the plaintiff is also one of the
Directors of the company. Therefore, even if construction
is made, the plaintiff and defendants No.14 to 17 would
benefit in the event the suit is decreed. Hence, the Trial
Court was correct in refusing temporary injunction.
42. It is also noted that the application for temporary
injunction was filed when the suit was posted for further
cross-examination of DW.1.
43. Learned counsel for defendants No.14 to 17
submitted that the Cavery Theatre Complex was
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purchased through four sale deeds dated 21.07.1969 and
is therefore joint family property. It is contended that
there is no material to show conversion of the property
into partnership property or company property. Even if
such submissions are considered, adjudicating regarding
the nature of property must take place at trial.
44. Learned Senior Counsel appearing for defendants
No.2, 6 and 10 and respondent No.27 referred to the
resolution of the Board of Directors dated 12.07.1923 as
well as the records of Board meetings held on various
dates, to demonstrate that the appellant was present at all
such meetings. When this being the fact, the question as
to whether the plaintiff attended the Board Meetings or not
is a matter to be considered during trial. Furthermore, if
property is developed, the plaintiff and defendants No.14
to 17 would also be entitled to their respective shares in
the event the suit is decreed in respect of the appeal
schedule property. In this regard, the plaintiff has failed to
establish a prima facie case and balance of convenience to
– 43 –
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grant an order of injunction halting the development of
property.
45. Further, learned Senior Counsels appearing for
respondents No.2, 6, 10 and respondent No.27, namely
Shri. D.R. Ravishankar and Sri. Srinivasa Raghavan, also
referred to the resolution of the Board of Directors dated
30.10.2022, wherein the directors unanimously decided
and accepted to invite a suitable and reliable developer for
joint development, for which, referred the signature of
plaintiff at Sl.No.6 in the said resolution. It was therefore
contended that the plaintiff cannot approbate and
reprobate. On the other hand it is contended that the
plaintiff attended the board meeting and consented to the
selection of a new developer for the development of the
property in question; but contrary, he has filed the present
suit seeking an order of temporary injunction to halt the
development of the property. This disputed fact is to be
adjudicated at the trial but not in this appeal.
– 44 –
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46. There is a considerable force in the submission
made by the learned Senior Counsel that although the suit
was filed in the year 2012, the plaintiff subsequently
attended the board meetings and consented to the
development of the appeal schedule property as a
signatory to the resolution. The filing of the application for
temporary injunction, therefore, amounts to blowing hot
and cold at the same time. Whether the plaintiff attended
the Board meetings and was a signatory to the decisions
taken therein are matters to be adjudicated in the suit
while determining the nature of the property. However,
prima facie, the defendants have prima facie shown the
active involvement of the plaintiff in the process of
development of the property.
47. Learned Senior Counsels also highlighted the
meeting of the Board of Directors held on 10.03.2013, in
which the plaintiff participated. Though these documents
are to be tested in a full-fledged trial, the plaintiff has
failed to show, prima facie, how commencement of
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construction would cause prejudice to him or to defendant
Nos.14 to 17.
48. Further, attention was drawn to the resolution
dated 02.04.2023, wherein it was resolved that the offer
made by Bagmane Developers was rejected due to their
failure to submit a technical feasibility report. The
company thereafter received offers from different builders
and one of whom was respondent No.27. Subsequent
resolutions dated 18.06.2023 and 12.07.2023 reveal that
respondent No.27, Brigade Enterprises, was selected for
development of the appeal schedule property, and the
plaintiff is stated to be a signatory to these resolutions as
well. Hence, the plaintiff has failed to show prima facie
case and balance of convenience lies in his favour so as to
warrant grant of temporary injunction.
49. It is worthwhile to refer to paragraph No.4(b) of
the memorandum of appeal, wherein it is stated that DW.1
admitted that Bharat Enterprises was subsequently
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merged into Cauvery Theatre Complex Private Limited, in
which male members, including the appellant, are
Directors. Thus, prima facie, it appears that the plaintiff is
one of the Directors of Cauvery Theatre Complex Private
Limited. It is the grievance of the plaintiff and defendants
No.14 to 17 that the signatures of female members were
not obtained before entering into the Memorandum of
Agreement. It is contended that defendants No.2, 6 and
10 alone had no authority to enter into such an
agreement, particularly during the pendency of the suit.
50. As discussed above and in the light of the
principles of law laid down by the Hon’ble Supreme Court
regarding Section 52 of the T.P. Act, whatever
development undertaken in respect of suit property shall
be subject to result of the suit. Therefore, no prejudice
would be caused to the rights of the plaintiff or other
female members of the joint family.
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51. Construction is at the stage of commencement
and no further development is taken place. If the appeal
schedule property is kept idle and the suit is decreed, then
at the most, the plaintiff and defendants No.14 to 17
would get undeveloped shares. Suppose the appeal
schedule property is developed and the suit is decreed in
respect of appeal schedule property, then the plaintiff and
defendants No.14 to 17 would be benefited of developed
portions. Therefore, if order of temporary injunction is not
granted then there would not be any loss or injury to the
plaintiff and defendants No.14 to 17 rather they would be
benefited.
52. Learned Senior Counsel, Sri. Srinivasa
Ragahavan, submitted that respondent No.27 had invested
considered amount of Rs.30 crores and if at this stage, if
construction activities are stopped then it would cause
more loss and injury to respondent No.27. Therefore,
prayed not to grant of temporary injunction.
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53. The judgment of the Hon’ble Supreme Court in
the case of Marirudraiah (referred supra) the facts are
that the pendente lite purchasers have filed an application
seeking permission to bring them on record as additional
respondents and the same is allowed by the High Court
and the suit was ended with compromise. In the regular
first appeal it was observed, the suit item No.9 cannot be
divided by metes and bounds. Therefore, the said dispute
is relegated to the final decree proceedings. It is directed
that the impleaded respondents can workout equity before
the Trial Court in the final decree proceedings.
54. Being aggrieved, the respondents No.1 and 2
therein filed a memo for ‘being spoken to’ and the High
Court had observed that since the purchasers have
stepped into the shoes of the appellants, the plaintiffs
share has to be ascertained and while working out the
equity, the share of the plaintiffs in item No.9 therein shall
be compensated in terms of money by considering the
market value by the appellants who have sold the property
– 49 –
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to respondents No.4 and 5, which is challenged before the
Hon’ble Supreme Court. In this context, it is observed at
paragraph No.15 herein under:
“15. It is relevant to point out that
Respondents 8 and 9 herein purchased Item 9
from the first respondent herein pendent elite.
In fact, the courts are not supposed to
encourage pendente lite transactions and
regularise their conduct by showing equity in
their favour. In such circumstances, we are of
the view that it is but proper to relegate all the
issues in the final decree proceedings and in the
case on hand, the same is pending before the
trial court.”
55. Further, the Hon’ble Supreme Court set aside the
direction for payment of compensation to the plaintiff and
others and working out equity are set aside and permitted
the parties to put forth their claim by way of separate
application before the trial court in the final decree
proceedings.
– 50 –
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56. Considering the factual matrix involved in the
present case, the above citation is not applicable to the
present set of facts. It is correct that there should not be
encouragement of pendente lite transactions. The
pendente lite transactions in the above said case is that
purchase made pendente lite, but in the present case,
there is no sale transaction, but is only regarding
development of property.
57. It is submitted by the learned Senior Counsels,
Sri. D.R. Ravishankar and Sri. Srinivasa Raghavan that
instead of keeping pending the property idle for decades
together, let there be improvement and all the sharers will
get benefited as per their shares even in a developed
portion also. Therefore, having considered difference in
factual matrix involved in the above cited case and in the
present case, the above cited case is not applicable in the
present appeal.
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58. Further the Hon’ble Supreme Court in the case of
Chander Bhan (D) Through Lr Sher Singh (referred
supra) is dealing with the principles of law laid down in
Sections 41 and 52 of the T.P. Act. It is observed at
paragraph Nos.15 and 16 herein under:
15. In order to appreciate the rival contentions of
the parties, it will be appropriate to reproduce the
relevant provisions of the Transfer of Property Act,
1882, the benefit of which is being claimed by both
parties. Section 41 of the Act of 1882 which governs
the principle of bona fide purchaser for valuable
consideration is reproduced below:
“41. Transfer by ostensible owner.–Where, with
the consent, express or implied, of the persons
interested in immovable property, a person is the
ostensible owner of such property and transfers the
same for consideration, the transfer shall not be
voidable on the ground that the transferor was not
authorised to make it:
Provided that the transferee, after taking reasonable
care to ascertain that the transferor had power to
make the transfer, has acted in good faith.”
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Similarly, Section 52 of the 1882 Act governs the
principle of lis pendens and is reproduced below:
“52. Transfer of property pending suit relating
thereto.–During the [pendency] in any Court having
authority [within the limits of India excluding the State
of Jammu and Kashmir] or established beyond such
limits] by [the Central Government, of [any] suit or
proceeding [which is not collusive and] in which any
right to immovable property is directly and specifically
in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made
therein, except under the authority of the Court and
on such terms as it may impose.
[Explanation.–For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the
plaint or the institution of the proceeding in a court of
competent jurisdiction, and to continue until the suit
or proceeding has been disposed of by a final decree
or order, and complete satisfaction or discharge of
such decree or order has been obtained, or has
become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution
thereof by any law for the time being in force.]”
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16. The object underlying the doctrine of lis pendens
is for maintaining status quo that cannot be affected
by an act of any party in a pending litigation. The
objective is also to prevent multiple proceedings by
parties in different forums. The principle is based on
equity and good conscience. This Court has clarified
this position in a catena of cases. Reference may be
made here of some, such as: Rajender Singh v. Santa
Singh [Rajender Singh v. Santa Singh, (1973) 2 SCC
705] ; Dev Raj Dogra v. Gyan Chand Jain (1981) 2
SCC 675] ; Sunita Jugalkishore Gilda v. Ramanlal
Udhoji Tanna (2013) 10 SCC 258 .
59. Where there is pendente lite transfer through
sale, in such an event, the rights of sharers will be
affected. Once sale transactions are made pendente lite,
then the rights of sharers will be affected. However, in the
present case, it is not a sale transaction, but is only
development of property. If once the property is
developed without keeping the property idle, in such an
event the decree is passed, all the sharers being members
of the joint family will also be benefited of development of
property. Once property is developed, the price of
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property would be escalated. Then, after decree, the
sharers/co-sharers will also be entitled to shares in the
developed property and also will be benefited at escalated
price. Therefore, having difference in the factual matrix of
the aforesaid case and in the present case, the above
principles of law laid down is not applicable in the case on
hand.
60. Learned Senior Counsels appearing for
respondents No.2, 6, 10 and 27 submitted that the
Cauvery Theatre Complex was demolished and excavation
was started and when complete excavation was done, till
that time, the plaintiff remained silent and when
earthwork to be carried out and diaphragm wall was about
to be constructed, the plaintiff has filed the instant
application for injunction.
61. It is further submitted that if really the plaintiff
had intention to protect the property, he would not have
waited until the excavation was completed but would have
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approached the Court immediately at the initial stage itself
when digging was started. It is further submitted that the
property has already been excavated to a depth of
approximately 20 to 30 feet. If the property is now left idle
at this stage, then in coming rainy season the excavated
area is likely to be filled with water, which may cause
severe damage not only to the property in question but
also to the adjoining properties. Therefore submitted that
if development work is carried out that would not cause
any harm or injury to the plaintiff and defendants No.14 to
17; rather, they would be benefit by receiving their
respective shares in the event the suit is decreed in
respect of the appeal schedule property.
62. This Court finds force in the submission and
therefore is of the opinion that upon admitted fact that the
property has been excavated to a depth of 20 to 30 feet
and if the property is kept idle at this stage, then during
rainy season, rainwater accumulation may damage the
property and may affect the surrounding buildings.
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Therefore, halting the development activities by granting
an injunction is not necessary. Therefore, in order to
protect the interests of the plaintiff and defendants No.14
to 17, respondents No.2, 6 and 10 shall reserve the shares
of plaintiff and defendants No.14 to 17, subject to the
result of the suit and they shall not alienate reserved
portions until disposal of the suit. This arrangement will
protect the interests of the plaintiff and defendants No.14
to 17.
63. The decisions relied on by the counsels for the
respondents are considered and the principles of law laid
down therein are considered in the present case while
considering the appeal.
64. Considering all these materials as discussed
above and submissions made by the learned Senior
Counsels, by making an observation that whatever
development to be taken on the property would be subject
to result of the suit and also all the co-sharers in the
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family would get their shares in the event the suit is
decreed. Therefore, there is no reason to grant an order of
temporary injunction in favour of the plaintiff. Therefore,
the Trial Court is correct and justified in not granting an
order of temporary injunction. In the result the appeal is
liable to be dismissed.
65. Accordingly, I answer point No.(i) in the
‘affirmative’ and point Nos.(ii) to (v) in the ‘negative’.
66. Hence, I proceed to pass the following order:
ORDER
a) I.A.No.2/2025 is allowed. The impleading
applicant is permitted to come on record as
respondent No.27 in the appeal.
b) The appeal is dismissed.
c) The order passed on the application filed
under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure, 1908, in
O.S.No.3248/2012 dated 07.12.2024, on
the file of IX Additional City Civil and
Sessions Judge, Bangalore, is confirmed.
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d) Respondents No.2, 6 and 10 shall reserve
shares of the plaintiff and defendants No.14
to 17 in a developed portion of the property
in question till decision in the suit and this
reservation shall be subject to the result in
the suit.
e) No order as to cost.
Whatever the observations made above are only for
the purpose of considering the application of temporary
injunction and shall not be considered as discussions and
merits involved in the case; hence the Trial Court is
directed to consider the suit in accordance with law after
receiving the evidence from both the sides independently
without being influenced by any of the observations made
above as expeditious as possible.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP para Nos.1 to 27 and 36 to end
SRA para Nos.28 to 35
CT: AN
