Karnataka High Court
Shri K Ganesh vs Shri Govind Reddy on 3 March, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REVIEW PETITION NO.587 OF 2025
BETWEEN:
1. SHRI K. GANESH
SON OF LATE M. KRISHNAPPA,
AGED 42 YEARS.
2. SHRI C. MANJU
SON OF SHRI M. CHANNARAYA REDDY,
AGED 42 YEARS,
BOTH ARE RESIDENTS OF NO.329,
'VEERABHADRA NILAYA' 3RD CROSS,
KODIHALLI, AIRPORT ROAD,
BANGALORE-560008.
...PETITIONERS
(BY SRI ARUN B. M., ADVOCATE)
AND:
Digitally signed by
MALLIKARJUN
RUDRAYYA
KALMATH 1. SHRI GOVIND REDDY
Location: High
Court of
Karnataka,
SON OF LATE SHRI MUNIYAPPA,
Dharwad Bench
AGED 69 YEARS, REP. BY GPA AND SON
SHRI G. RAVI REDDY,
2. SHRI G. RAVI REDDY,
SON OF SHRI GOVIND REDDY,
AGED 39 YEARS,
BOTH ARE RESIDENTS OF NO.19/1,
THIRUPALYA VILLAGE,
NEXT TO GOVERNMENT SCHOOL,
TOWARDS HULIMANGALA ROAD,
BOMMASANDRA INDUSTRIAL AREA,
BENGALURU-560099.
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3. SMT. Y. SUGUNA
WIFE OF LATE M. KRISHNAPPA,
AGED 67 YEARS.
4. SHRI K. MUNIRAJ
SON OF LATE M. KRISHNAPPA,
AGED 50 YEARS.
5. SHRI PRITHVI KRISH
SON OF SHRI K. MUNIRAJ,
AGED 13 YEARS.
6. MASTER ROHAN REDDY
SON OF SHRI K. MUNIRAJ
AGED 10 YEARS.
7. KUMARI NEHA
DAUGHTER OF SHRI K. GANESH,
AGED 18 YEARS.
8. MASTER NITHEN
SON OF SHRI K. GANESH,
AGED 10 YEARS.
9. SMT. K. PADMA
DAUGHTER OF LATE M. KRISHNAPPA,
AGED 49 YEARS.
10. MASTER SHREYASH
SON OF MRS. K. PADMA,
AGED 16 YEARS.
11. SMT. K. BHAGYA
DAUGHTER OF LATE M. KRISHNAPPA,
AGED 47 YEARS.
12. MR. MANISH
SON OF SMT. K. BHAGYA,
AGED 23 YEARS.
13. MR. LOHITH,
SON OF SMT. BHAGYA,
AGED 19 YEARS.
14. KAMARI KAVITHA
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DAUGHTER OF LATE M. KRISHNAPPA,
AGED 39 YEARS.
15. SHRI M. CHANNARAYA REDDY,
SON OF LATE MUNIYAPPA,
AGED 73 YEARS.
16. SMT. Y. VANALAKSHMI,
WIFE OF SHRI M. CHANNARAYA REDDY,
AGED 64 YEARS.
17. SHRI C. VIJAYA KUMAR,
SON OF M. CHANNARAYA REDDY,
AGED 45 YEARS.
18. KUMARI MAHALAKSHMI
DAUGHTER OF SHRI C. VIJAYAKUMAR,
AGED 20 YEARS.
19. MASTER CHIRAG,
SON OF SHRI C. VIJAYAKUMAR,
AGED 16 YEARS.
20. SMT. HEMAVATHI
DAUGHTER OF M. CHANNARAYA REDDY,
AGED 49 YEARS.
21. KUMARI NAVYA
DAUGHTER OF SMT. HEMAVATHI,
AGED 23 YEARS.
22. MASTER ANKITH
SON OF SMT. HEMAVATHI,
AGED 19 YEARS.
23. SMT. USHA
DAUGHTER OF SHRI M. CHANNARAYA REDDY,
AGED 40 YEARS.
24. MASTER GURUSWAROOP
SON OF SMT. USHA, AGED 10 YEARS.
RESPONDENT NOS.5, 6, 8, 10, 19 & 24
ARE MINORS AND REP. BY THEIR
PARENTS/NATURAL GUARDIANS
4TH RESP. 1ST PETR., 9TH RESP.,
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17TH RESP. AND 24TH RESP.
RESPS. NO.3 TO 24 ARE RESIDENTS
OF NO.329 'VEERABHADRA NILAYA'
3RD CROSS, KODIHALLI, AIRPORT ROAD,
BANGALORE-560008.
25. SMT. CHANNAMMA
DAUGHTER OF SHRI MUNIYAPPA,
AGED 75 YEARS, RESIDENT OF NO. 329
'VEERABHADRA NILAYA' 3RD CROSS, KODIHALLI,
AIRPORT ROAD, BANGALORE-560008.
26. MR. KISHORE KUMAR,
SON OF SHRI SHANTHILAL,
AGED 51 YEARS, RESIDENT AT FLAT NO.102,
1ST FLOOR, NO.432, 30TH CROSS, 7TH 'B' MAIN,
4TH BLOCK, JAYANAGAR, BENGALURU-560011.
27 M/S. METRIK INFRA PROJECTS PVT. LTD.,
A PRIVATE LIMITED COMPANY,
HAVING ITS OFFICE AT FLOOR-11,
'JAIN HEIGHTS SOLUS', NO.2, 1ST CROSS,
J. C. ROAD, BENGALURU-560027,
REPRESENTED BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI SUNIL KUMAR H., ADV. FOR R1 AND R2;
SRI PARUSHURAM AJJAMPUR, ADV. FOR R25
NOTICE TO R3 TO R24, R26 AND R27 ARE DISPENSED WITH)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO
REVIEW THE ORDER DATED 05.11.2025 PASSED BY THIS
HON'BLE COURT IN MFA NO.7416/2025, VIDE ANNEXURE-'A'
AND CONSEQUENTIALLY, ALLOW THE APPEAL FILED IN MFA
NO.7416/2025 AND SET ASIDE THE ORDER DATED 17.09.2025
IN O.S.NO.4625/2025 PASSED BY THE XXIV ADDITIONAL CITY
CIVIL JUDGE, BENGALUR CITY (CCH NO.6) IN SO FAR AS
ALLOWING I.A.NO.1 IS CONCERNED AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
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CAV ORDER
This review petition is filed by the review petitioners,
who are defendants No.5 and 19 in O.S.No.4625/2025
challenging the order dated 17.09.2025 passed by the
Court of XXIV Additional City Civil and Sessions Judge,
Bangalore City (C.C.H.No.6). The review petitioners were
the appellants in MFA No.7416/2025, which was disposed
of by this Court on 05.11.2025. The review petitioners
have preferred this petition seeking review of the order
dated 05.11.2025 passed by this Court in MFA
No.7416/2025.
2. The appeal filed by the review petitioners in MFA
No.7416/2025 was allowed in part by modifying the order
dated 17.09.2025 passed in O.S.No.4625/2025 on
I.A.Nos.1 and 2 filed under Order XXXIX Rules 1 and 2 of
CPC. This Court directed that the appellants in MFA
No.7416/2025, who are defendants No.5 and 19 in
O.S.No.4625/2025 shall reserve 1/4th share in all the suit
schedule properties in the name of plaintiffs and defendant
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No.25. The appellants/defendants were permitted to utilize
other remaining respective shares and were further
directed to furnish the details of apartments constructed
over suit Item Nos.8 and 9 and to submit such particulars
before the Trial Court, as ordered in MFA No.7416/2025.
3. Being aggrieved by the direction to reserve 1/4th
share in the name of plaintiffs and defendant No.25, the
present review petition is filed. According to the review
petitioners, there ought not to have been any direction to
reserve 1/4th share in favour of plaintiffs and defendant
No.25.
4. This review petition is filed by raising various
grounds, which are summarized as follows:
4.1 This Court has not taken note of the conduct of
plaintiff No.1/respondent No.1 and defendant
No.25/respondent No.25;
4.2 That the defendant No.25 had filed suit earlier in
O.S.No.2085/2021 and was unsuccessful in
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obtaining interim order of injunction and in the
meantime, the respondents No.1 and 2 herein
have filed suit in O.S.No.4625/2025 and in this
suit, the plaintiff in O.S.No.2085/2021 is arrayed
as defendant No.25 and later on, defendant No.25
has withdrawn the said suit OS.No.2085/2021;
4.3 It is contended that the above fact was
suppressed in the subsequent suit in
O.S.No.4625/2025. According to the review
petitioners, such suppression amounts to
misconduct on the part of plaintiffs and defendant
No.25. It is further contended that filing of
O.S.No.2085/2021 and O.S.No.4625/2025
seeking partition of the suit properties amounts to
abuse of process of Court. Further, the review
petitioners also contend that this Court while
passing the order in MFA No.7416/2025 failed to
extract and properly consider the relevant
paragraphs of the judgment of the Hon'ble
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Supreme Court in MANDALI RANGANNA AND
OTHERS vs. T RAMACHANDRA AND OTHERS1,
regarding conduct of parties while considering
grant of equitable relief of temporary injunction;
4.4 It is further contended that this Court erred in
reserving 1/4th share in favour of plaintiffs and
defendant No.25 despite there being an
inordinate delay of 12 years in challenging the
joint development agreement dated 08.08.2013.
According to the review petitioners, permitting
such reservation despite the delay constitutes an
error apparent on the face of the record;
4.5 Further, the review petitioners contend that there
is an error apparent on the face of record,
inasmuch as, this Court has observed that
whatever alienations made would be subject to
Section 52 of the Transfer of Property Act, 18822
this alone is sufficient, but proceeded to grant
1
(2008) 11 SCC 1
2
Hereinafter referred to as the 'T.P. Act'
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temporary injunction albeit with modification.
According to them, such direction is contrary to
the judgment of the Hon'ble Supreme Court in the
case of VINOD SETH Vs. DEVINDER BAJAJ AND
ANOTHER3;
4.6 It is further contended that this Court has wrongly
interpreted the said judgment and also the
judgment in MANDALI RANGANNA's case
(supra) and the said judgment is contrary to the
order dated 03.09.2025 passed by this Court in
MFA No.2475/2024. It is therefore contended
that this Court ought to have confined its
observation only to the applicability of Section 52
of the T.P. Act without directing reservation of
shares in favour of plaintiffs and defendant No.25.
5. This Court hereby makes clear that whatever
observations and discussions made in this order are only
passed on the documents produced by both sides and not
3
(2010) 8 SCC 1
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more than that. This Court is required to examine
whether the order passed in MFA No.7416/2025 suffers
from any error apparent on face of the record so as to
warrant review of the said order.
6. The Hon'ble Supreme Court in BOARD OF
CONTROL FOR CRICKET IN INDIA AND ANOTHER vs.
NETAJI CRICKET CLUB AND OTHERS4, has laid down
the principles of law governing the scope of review under
Section 114 and Order XLVII Rule 1 of CPC. The relevant
paragraphs of the said judgment are extracted
hereinbelow:
"88. We are, furthermore, of the opinion that the
jurisdiction of the High Court in entertaining a review
application cannot be said to be ex facie bad in law. Section
114 of the Code empowers a court to review its order if the
conditions precedents laid down therein are satisfied. The
substantive provision of law does not prescribe any
limitation on the power of the court except those which are
expressly provided in Section 114 of the Code in terms
whereof it is empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an
application for review. Such an application for review would
be maintainable not only upon discovery of a new and
important piece of evidence or when there exists an error
apparent on the face of the record but also if the same is
necessitated on account of some mistake or for any other
sufficient reason.
4
(2005) 4 SCC 741
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90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the undertaking
may also call for a review of the order. An application for
review would also be maintainable if there exists sufficient
reason therefor. What would constitute sufficient reason
would depend on the facts and circumstances of the case.
The words 'sufficient reason' in Order 47 Rule 1 of the Code
are wide enough to include a misconception of fact or law
by a court or even an Advocate. An application for review
may be necessitated by way of invoking the doctrine "actus
curiae neminem gravabit".
91. It is true that in Moran Mar Basselios Catholicos
Vs. The Most Rev. Mar Poulose Athanasius8, this Court
made observations as regard limitations in the application of
review of its order stating: (SCR p.529)
"Before going into the merits of the case it is
as well to bear in mind the scope of the application
for review which has given rise to the present
appeal. It is needless to emphasise that the scope
of an application for review is much more restricted
than that of an appeal. Under the provisions in the
Travancore Code of Civil Procedure which is similar
in terms to Order XLVII, Rule 1 of our Code of Civil
Procedure, 1908, the Court of review has only a
limited jurisdiction circumscribed by the definitive
limits fixed by the language used therein. It may
allow a review on three specified grounds, namely
(i) discovery of new and important matter or
evidence which, after the exercise of due diligence,
was not within the applicant's knowledge or could
not be produced by him at the time when the
decree was passed, (ii) mistake or error apparent
on the face of the record and (iii) for any other
sufficient reason. It has been held by the Judicial
Committee that the words 'any other sufficient
reason' must mean 'a reason sufficient on grounds,
at least analogous to those specified in the rule'."
but the said rule is not universal.
92. Yet again in Lily Thomas (supra), this Court has laid
down the law in the following terms: (SCC pp. 247-48, para
52)
"52. The dictionary meaning of the word
"review" is "the act of looking, offer something
again with a view to correction or improvement". It
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cannot be denied that the review is the creation of
a statute."
This Court in Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji, held that the power of review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. The review is also
not an appeal in disguise. It cannot be denied that justice is
a virtue which transcends all barriers and the rules or
procedures or technicalities of law cannot stand in the way
of administration of justice. Law has to bend before justice.
If the Court finds that the error pointed out in the review
petition was under a mistake and the earlier judgment
would not have been passed but for erroneous assumption
which in fact did not exist and its perpetration shall result in
miscarriage of justice nothing would preclude the Court
from rectifying the error."
(Emphasis supplied)
93. It is also not correct to contend that the court while
exercising its review jurisdiction in any situation whatsoever
cannot take into consideration a subsequent event. In a
case of this nature when the court accepts its own mistake
in understanding the nature and purport of the undertaking
given by the learned senior counsel appearing on behalf of
the Board and its correlation with as to what transpired in
the AGM of the Board held on 29th September, 2004, the
subsequent event may be taken into consideration by the
court for the purpose of rectifying its own mistake."
7. Further, the Hon'ble Supreme Court in SANJAY
KUMAR AGARWAL vs. STATE TAX OFFICER AND
5
ANOTHER , has discussed regarding scope of review and
laid down the principles of law, which are extracted below:
"10. It is also well settled that a party is not entitled to
seek a review of a judgment delivered by this Court merely for
the purpose of a rehearing and a fresh decision of the case. The
normal principle is that a judgment pronounced by the Court is
final, and departure from that principle is justified only when
5
R.P. (Civil) No.1620 of 2023 in Civil Appeal No.1661/2020 and connected
with other matters
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circumstances of a substantial and compelling character make it
necessary to do so6.
11. In Parsion Devi and Others vs. Sumitri Devi and
Others7, this Court made very pivotal observations: -
"9. Under Order 47 Rule 1 CPC a judgment may be
open to review inter alia if there is a mistake or an
error apparent on the face of the record. An error
which is not self-evident and has to be detected by a
process of reasoning, can hardly be said to be an
error apparent on the face of the record justifying
the court to exercise its power of review under Order
47 Rule 1 CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and corrected". A
review petition, it must be remembered has a limited
purpose and cannot be allowed to be "an appeal in
disguise."
12. Again, in Shanti Conductors Private Limited vs.
Assam State Electricity Board and Others8, a three Judge
Bench of this Court following Parsion Devi and Others vs.
Sumitri Devi and Others (supra) dismissed the review
petitions holding that the scope of review is limited and under
the guise of review, the petitioner cannot be permitted to
reagitate and reargue the questions which have already been
addressed and decided.
13. Recently, in Shri Ram Sahu (Dead) Through Legal
Representatives and Others vs. Vinod Kumar Rawat and
Others9, this Court restated the law with regard to the scope of
review under Section 114 read with Order XLVII of CPC.
14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal
Nos. 8345-8346 of 2018 (Arun Dev Upadhyaya vs.
Integrated Sales Service Limited & Another), this Court
reiterated the law and held that: -
"15. From the above, it is evident that a power to
review cannot be exercised as an appellate power
and has to be strictly confined to the scope and ambit
of Order XLVII Rule 1 CPC. An error on the face of
record must be such an error which, mere looking at
6
AIR 1965 SC 845, Sajjan Singh and Ors. Vs. State of Rajasthan and Ors.
7
(1997) 8 SCC 715
8
(2020) 2 SCC 677
9
(2021) 13 SCC 1
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the record should strike and it should not require any
long-drawn process of reasoning on the points where
there may conceivably be two opinions."
15. It is very pertinent to note that recently the
Constitution Bench in Beghar Foundation vs. Justice K.S.
Puttaswamy (Retired) and Others10, held that even the
change in law or subsequent decision/judgment of co-ordinate
Bench or larger Bench by itself cannot be regarded as a ground
for review.
16. The gist of the afore-stated decisions is that: -
i) A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the
record.
ii) A judgment pronounced by the Court is final,
and departure from that principle is justified only
when circumstances of a substantial and
compelling character make it necessary to do so.
iii) An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be
said to be an error apparent on the face of record
justifying the court to exercise its power of review.
iv) In exercise of the jurisdiction under Order 47 Rule
1 CPC, it is not permissible for an erroneous
decision to be "reheard and corrected."
v) A Review Petition has a limited purpose and
cannot be allowed to be "an appeal in disguise."
vi) Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions
which have already been addressed and decided.
vii) An error on the face of record must be such an
error which, mere looking at the record should
strike and it should not require any long-drawn
process of reasoning on the points where there
may conceivably be two opinions.
viii) Even the change in law or subsequent decision/
judgment of a co-ordinate or larger Bench by itself
cannot be regarded as a ground for review.
10
(2021) 3 SCC 1
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Analysis:
17. Keeping in view the afore-stated legal position, let us
examine whether the Review Petitioners have been able to make
out any case within the ambit of Order XLVII of Supreme Court
Rules, read with Order XLVII of CPC, for reviewing the impugned
judgment."
8. Therefore, keeping in view the principles of law
laid down by the Hon'ble Supreme Court the present
review petition is considered on the materials produced
once again in the review petition. The materials produced
by the review petitioners through the learned counsel,
Sri.B.M.Arun were already submitted during the course of
his arguments in MFA No.7416/2025. According to the
learned counsel, Sri.B.M.Arun a comment is made on the
conduct of the plaintiffs and defendant No.25 in
O.S.No.4625/2025. According to learned counsel,
Sri.B.M.Arun the defendant No.25 has filed a suit in
O.S.No.2085/2021 for partition claiming 1/4th share and
was unsuccessful in getting an order of temporary
injunction and later on the plaintiffs in O.S.No.4625/2025
(who were parties in O.S.No.2085/2021) have filed the
suit O.S.No.4625/2025 and obtained an interim order of
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temporary injunction on 02.07.2025 and later on, the
defendant No.25 who was plaintiff in O.S.No.2085/2021
has withdrawn the said suit. Therefore, according to
learned counsel Sri.B.M.Arun this is misconduct.
9. Further learned counsel Sri.B.M.Arun has
contended that rejection of application for temporary
injunction in O.S.No.2085/2021 is not disclosed in
O.S.No.4625/2025. Therefore, this suppression of fact is
misconduct on the part of plaintiffs and defendant No.25 in
O.S.No.4625/2025.
10. It is pertinent to mention here that both
O.S.Nos.2085/2021 and 4625/2021 are for partition. It is
stated that original propositus is Muniyappa, who has four
children namely, Govinda Reddy, Channamma, Krishnappa
and Channaraya Reddy. The relationship between them is
admitted. Smt.Channamma has filed O.S.No.2085/2021
for partition and later on, it was withdrawn on 24.09.2025
with liberty to agitate her right in O.S.No.4625/2025 by
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mentioning reasons that she is old aged woman and
therefore, could not pursue by engaging lawyer and as
such, she will agitate her right through O.S.No.4625/2025.
Accordingly, the trial court has dismissed the suit
O.S.No.2085/2021 as withdrawn by reserving liberty to
Channamma to agitate her legitimate right in
O.S.No.4625/2025. When admittedly there are four joint
family members/co-sharers, among them two sons have
entered into exercise of executing the joint development
agreement, general agreement, etc. Here as per the
materials produced by the learned counsel Sri.B.M.Arun
the same have to be considered, which is apparent on the
face of record.
11. There is rival contentions among the members
of the joint family whether the suit item Nos.8 and 9 are
joint family properties or not. It is one of the contentious
issue in the suit and this is yet to be decided in full fledge
trial in the suit. There was joint development agreement
dated 25.10.2007 in which Govinda Reddy and his wife
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and children are recognized as owners of the suit item
Nos.8 and 9 properties, but Channamma (daughter of
Muniyappa) is not recognized as joint owner. As why the
review petitioners have left out Channamma from the
array of joint owners, is best reasons known to the review
petitioners. This joint development agreement dated
25.10.2007 with one Kishore Kumar, who is developer. In
this agreement, except Channamma all others have been
considered as owners. It is not disputed that Channamma
(daughter of Muniyappa) is not a sister of Krishnappa and
Channaraya Reddy. However, the sister Channamma is
given a go-by in this joint development agreement. Thus,
prima facie it is nothing but causing deprivation of right of
Channamma.
12. Again on 12.04.2011 a supplementary
agreement was executed in which also review petitioners
have been left out Channamma being made as party as
joint owner. Further there is one more joint development
agreement with the same developer by the same parties
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on 08.08.2013, in which also the review petitioners, other
joint family members and plaintiffs, wife and children have
been made as parties but Channamma is left out for the
best reasons known to the review petitioners. Thus,
causing deprivation of right of Channamma.
13. Considering all these three documents,
Channamma is left out and admittedly she is a sister
review petitioners being daughter of Muniyappa has not at
all been considered in all these documentary transactions
while executing joint development agreement with
developer. Therefore, Channamma has filed suit
O.S.No.2085/2021 for partition seeking her 1/4th share in
all the properties including item Nos.8 and 9 in the suit
schedule properties. But Channamma was unsuccessful in
obtaining the order of temporary injunction. The plaintiff
in O.S.No.4625/2025 Govinda Reddy, admittedly he is
dumb and deaf. Therefore, when these two co-sharers
one being physically disabled person and another being old
aged woman, being vulnerable at the hands of the review
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petitioners, have filed the suit for partition claiming their
legitimate rights of share. Under these circumstances, the
suit filed by Channamma in O.S.No.2085/2021 and
O.S.No.4625/2025 filed by Govinda Reddy are considered
and Channamma has withdrawn the suit
O.S.No.2085/2021 by assigning reason that she being old
aged woman, she could not pursue the suit independently.
Therefore, when her own brother had initiated suit
O.S.No.4625/2025 and as such permission sought for to
agitate her right in O.S.No.4625/2025 and withdrew the
suit O.S.No.2085/2021. But according to learned counsel
Sri.B.M.Arun it is misconduct on part of Govinda Reddy
and Channamma, but the misconduct by the review
petitioners is also to be highlighted here.
14. In the joint development agreements of the
year 2007, 2011 and 2013 though plaintiff - Govinda
Reddy was shown as owner in joint development
agreement of the year 2007 and 2011, but suddenly in the
joint development agreement dated 08.08.2013 this
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Govinda Reddy has made as confirming party.
Furthermore, this joint development agreement executed
at the hands of the review petitioners and developer, it is
made as Govinda Reddy and his branch have no right, title
and interest whatsoever any person over the suit schedule
property, which are item Nos.8 and 9 in the suit schedule
properties. Therefore, here the review petitioners and
developer both have decided the ownership and title of the
parties according to their convenient documents. If this is
not misconduct, then no other things would be
misconduct. Therefore, when this Court while passing
order in MFA No.7416/2025 ordered whatever alienations
or transactions are subject to Section 52 of T.P. Act, but
also protected the rights of plaintiffs of O.S.No.4625/2025
and Channamma just by ordering to reserve their 1/4th
share.
15. Sri.B.M.Arun, learned counsel appearing on
behalf of review petitioners being aggrieved and also
annoyed by this order of reserving 1/4th share, has argued
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in high pitch voice that this order of reserving 1/4th share
could not have been done according to him. Sri.B.M.Arun
while addressing his submissions thinking that this Court
has committed a blunder submitted that this order could
not have been made and virtually he has dictated the
Court to write the order according to his convenience and
his whims and fancies. It is not disputed that on item
Nos.8 and 9 properties review petitioners with joint
development agreement with developer have constructed
hundred numbers of flats in apartment.
16. When the two co-sharers have filed the suit for
partition and considering the facts and circumstances
involved in the case, the review petitioners along with the
developer have constructed hundred number of flats and if
those flats are sold away entire property consisting of flats
then even if decree is passed for partition then there are
every possibilities of plaintiffs and defendant No.25 would
not get any fruitful share in reality and practically. Then
whatever decree would be paper decree. Therefore, when
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this Court has ordered with a view to protect the interest
of plaintiffs and defendant No.25, that too subject to result
in the suit with avowed object that even if a decree is
passed the parties must be able to get fruitful of decree
otherwise the decree would become a paper decree.
Therefore, if all the flats and apartments are sold out even
if decree is passed by granting share but for realising the
fruits is only nightmares for the decree holders.
Therefore, protecting the rights of co-sharers as it is
inherent to claim share in joint family properties and such
order is made, which is attacked in this review petition.
Here when the review petitioners have pointed out conduct
on the part of plaintiffs and defendant No.25 in
O.S.No.4625/2025 filing suit for partition is abuse of
process of Court with a single finger, but other four fingers
are pointing towards the review petitioners is lost sight by
learned counsel, Sri.B.M.Arun.
17. Upon considering the three documents of
agreement of the years 2007, 2011 and 2013, the plaintiff
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Govinda Reddy being recognized as the owner in
agreement of the years 2007 and 2011, but in the
agreement of 2013 suddenly he has been shown as a
confirmed parties showing a recital in the agreement that
he has no right and title. Therefore, a question comes up
in the mind of the Court whether such title or ownership
can be changed in any agreement between some parties
at their whims and fancies in the family as in the present
case by review petitioners is to be considered in the suit in
the trial. This is observed because of the fact that
admittedly Govinda Reddy is deaf and dumb moreover
Channamma is not at all included in the share. This is the
conduct and attitude shown by the review petitioners and
this is found prima facie apparent on face of the record as
submitted by learned counsel Sri.B.M.Arun himself.
18. Just because non granting order of temporary
injunction in O.S.No.2085/2021 is not disclosed in
O.S.No.4625/2025 is not amounting to suppression of fact
prima facie. O.S.No.4625/2025 is filed by Govinda Reddy
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and not by Channamma. Though the contents in both the
plaints are same, but are having different cause of actions
and filed by different members of Joint Family. In the suit
for partition the cause of action is continues and
concurrent one till the division takes place. Therefore, the
review petitioners have found fault that Channamma and
Govinda Reddy filing suit for partition is wrong. Therefore,
what the review petitioners desire is that other two co-
sharers namely, Govinda Reddy and Channamma are
being under the mercy of the review petitioners and to see
that Govinda Reddy and Channamma would not get any
share in reality. This is the conduct shown by the review
petitioners. Therefore, in this regard, there is no merit in
the grounds urged by the learned counsel Sri.B.M.Arun,
Advocate of the review petitioners.
19. Further, one of the document on the face of
record produced by the learned counsel for the review
petitioners Sri.B.M.Arun a deed of partition executed on
11.07.2018 between Mrs.Y.Suguna, who is wife of late
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M.Krishnappa and M.Channaraya Reddy S/o. Late
Muniyappa and other children of M.Krishnappa and
Channaraya Reddy entered themselves as first party,
second party and third party. This deed of partition is only
between wife and children of M.Krishnappa and
Channaraya Reddy and his children regarding division of
share of residential flats among themselves without taking
into consideration Govinda Reddy and Channamma in
respect of apartment and flats constructed on item Nos.8
and 9 properties. This is one of the conducts shown by
the review petitioners on face of the record itself.
Therefore, systematically excluded Govinda Reddy and
Channamma in respect of properties item Nos.8 and 9.
The suit is filed for partition also in respect of item Nos.8
and 9 properties. Whether this is joint family property or
not, is a question to be determined in the trial in the suit.
Therefore, if all the flats mentioned in the deed of partition
dated 11.07.2018 are sold out and in the event the suit is
decreed in respect of item Nos.8 and 9 properties, Govinda
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Reddy and Channamma are compelled once again start
litigation against several hundred purchasers to realize the
fruit in terms of the decree to be passed in respect of
partition against by way of final decree proceedings and
execution. Therefore, in order to protect the right of share
to get in the share this Court has ordered to reserve 1/4th
share. But according to review petitioners filing of suit
itself is abuse of process of Court which can be certainly
termed as ridicule. Therefore, it is very redicule
submission that when Govinda Reddy and Channamma
have filed suit for partition for claiming their legitimate
share in the properties, is abuse of process of Court.
Considering the conduct of the review petitioners that they
are making every attempt to deprive the legitimate share
of the Govinda Reddy and Channamma on the one hand
and submission made by the review petitioners that filing
of such suit for partition is abuse of process of Court, the
review petitioners are going to make new definitions of
what is legitimate exercise of right and abuse of process of
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Court. This attempt of the review petitioners on the face
of the record produced by the learned counsel
Sri.B.M.Arun are considered while observing in the order
that the protection under Section 52 of the T.P. Act is
weak protection, therefore, ordered to reserve shares till
disposal of the suit. Justice must be given really and
substantially, but should not be a mere paper decree.
Whatever order of reservation in MFA is subject to result in
the suit. Therefore, this conduct of the review petitioners
on the face of record is also considered. Hence, there is
no merit in the grounds urged by the review petitioners
through learned counsel Sri.B.M.Arun.
20. The Hon'ble Supreme Court in the case of
MANDALI RANGANNA AND OTHERS vs.
T.RAMACHANDRA AND OTHERS11 case it is observed
that while granting relief of injunction the conduct of
parties also be considered. Learned counsel Sri.B.M.Arun
has argued much and taken on this Court that this Court
11
(2008) 11 SCC 1
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has not extracted the paragraph 21 in MANDALI
RANGANNA's case. Non extracting of this paragraph 21
of the judgment according to Sri.B.M.Arun is a misconduct
on the part of the Court. This argument is very ridicule
and misconceived and untenable when considering the
gross misconduct on the part of review petitioners as
above discussed. The Hon'ble Supreme Court in the said
case at paragraph 21 has held as follows:
"21. While considering an application for grant of
injunction, the court will not only take into
consideration the basic elements in relation thereto viz.
existence of a prima facie case, balance of convenience
and irreparable injury, it must also take into
consideration the conduct of the parties."
21. Therefore, the conduct of the review petitioners
has to be considered while granting equitable relief of
injunction in the order. This Court in MFA No.7416/2025
has ordered by modifying the order of trial court that the
review petitioners shall make claims of other share of
properties, which they would get in the suit for partition,
but reserved shares of plaintiff and defendant No.25 in
order to protect their rights. Therefore, when this Court
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protects the rights of co-sharers being members of joint
family this is being annoyed and aggrieved by learned
counsel Sri.B.M.Arun. Therefore, the review petitioners
desire the Court shall pass order according to whims and
fancies and their convenience, which argument of
Sri.B.M.Arun is having found no merit against ethics f
advocacy profession. Considering the argument virtually
the review petitioners through learned counsel
Sri.B.M.Arun is amounting to dictating and browbeating
the Court in order to see that the order be passed in their
favour. According to learned counsel Sri.B.M.Arun filing
of suit for partition by two co-sharers who are Govinda
Reddy and Channamma are abuse of process of Court.
This attitude of the review petitioners is found with
malafide intention having oblique motive just to see that
Govinda Reddy and Channamma do not get any fruitful
share in reality even if the suit is decreed and making
them frustrated and relegating to further litigations in
future with purchasers of flats to get share.
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22. According to the learned counsel for the review
petitioner Sri.B.M.Arun filing of suits by Channamma and
Govinda Reddy as stated above claiming their legitimate
right of share is abuse of process of Court. Channamma
was not at all party in any of the agreements from 2007 to
2013 as explained above. Therefore, she filed the suit for
partition. When Channamma with apprehension that all
the suit properties are being sold only by review
petitioners who are representing two branches in the
family and she may not get any share or fruit in the joint
family properties, therefore, she filed a suit but was
unsuccessful in obtaining interim order of temporary
injunction. Considering the factors that the suit filed for
partition, there might have been other documents
executed but the main relief is to seeking partition in the
joint family/ancestral properties is inherent right of
members of joint family/coparceners and that cannot be
taken away by any of the documents. Therefore, when
considering the main relief is partition, unless there is a
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division/severance in the joint family properties, the cause
of action continuous. The review petitioners with a desire
to deprive the legitimate share of Govinda Reddy and
Channamma have executed the agreements above stated.
Channamma is not at all taken into confidence in the
agreements, whereas Govinda Reddy is made a party in
the agreement of the year 2007 and 2011 as owners and
sharers, but suddenly in the agreement of the year 2013
Govinda Reddy and his branch were made as only
confirming parties and also by mentioning the recitals that
he has no right and title. Therefore, this is an attempt
made by the review petitioners apparent on the face of the
record. Somehow to exclude the shares to Govinda Reddy
and Channamma so far as item Nos.8 and 9 properties are
concerned, when this being the facts revealed on the
materials placed by the review petitioners itself, observing
that whatever transactions made are subject to Section 52
of the T.P. Act, is a weak protection for the reason that
suppose if 1/4th share each to plaintiff and defendant
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No.25 is not reserved and the review petitioners and
developers would sell all the properties during the
pendency of the suit, then, in real terms Section 52 of
T.P.Act would not come to give real fruit of decree to
plaintiffs and defendant No.25. In such an event,
whatever decree would be passed in future would become
a mere paper decree. At the most the decree would be
paper tiger or cinema tiger. If this protection of
reservation is not given and mere if Section 52 of the
T.P.Act is made a shield, then this shield is a weak shield
unable to protect the interest of the plaintiffs and
defendant No.25. In case all the flats are sold out, then,
the co-sharers/members of joint family once again will
relegate to cumbersome legal proceedings against every
purchasers of the review petitioners and developers who
are hundred in numbers and in such an event, the rights
of plaintiffs and defendant No.25 would be frustrated and
rendering virtually impossible to get share practically.
Therefore, this Court has modified the order of trial court
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allowing MFA No.7416/2025 in part permitting the review
petitioners to utilise the remaining portion, but reserved
1/4th share each to the plaintiffs and defendant No.25.
Therefore, this order is completely in protecting the rights
and interest of the plaintiffs and defendant No.25.
Therefore, the contention taken by the learned counsel
Sri.B.M.Arun that filing of suits for partition is abuse of
process of Court is nothing but a redicule and ferocious
submission virtually making the plaintiffs and defendant
No.25 cannot claim their legitimate share/right.
Therefore, virtually the review petitioners are in abuse of
process of the entire legal proceedings including the
transactions made through agreements above stated.
Hence, there is no merit found in the submission of the
learned counsel for the review petitioners.
23. There is no bar under law if one member of the
joint family files a suit for partition and another member of
the joint family cannot maintain the suit for portion.
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24. Learned counsel for respondent Nos.1 and 2,
who are plaintiff in O.S.No.4625/2025 submitted that the
suit filed by Channamma in O.S.No.2085/2021 the cause
of action is different and there is no specification of
identifying the property with its boundaries, therefore trial
court has not granted an order of temporary injunction.
Later on, Govinda Reddy has filed the suit
O.S.No.4625/2025 for partition as in Channamma's suit
there is no order of temporary injunction. Therefore, to
protect his right and interest he filed the suit in
O.S.No.4625/2025, but the learned counsel Sri.B.M.Arun
pointed out that this is abuse of process of Court.
Therefore, the review petitioners wanted no share would
be given to plaintiff and defendant No.25. Therefore, this
desire of review petitioners is nothing but abuse of process
of entire legal proceedings and by this trying to engulp
entire properties.
25. Learned counsel Sri.B.M.Arun places reliance on
the judgment of Hon'ble Supreme Court in the case of
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Y.B.PATIL AND OTHERS v. Y.L.PATIL12 at paragraph 4,
which reads as follows:
"4. In appeal before us Mr. Gupte on behalf of the
appellants has contended that the High Court was in error
in not interfering with the order of the Tribunal whereby
the revision petition filed by the appellants had been
dismissed. It is urged that the Tribunal in affirming the
findings of the Assistant Commissioner and the Deputy
Commissioner regarding the question of the appellants
being strangers qua the land in dispute took a very
restricted view of section 79 of the Act dealing with
revision. This contention, in our opinion, is not well
founded. The High Court at the time of the decision of the
earlier writ petition on December 18, 1964 recorded a
finding and gave directions to the Tribunal not to reopen
the questions of fact in revision. The Tribunal while
passing the order dated September 12, 1967 complied
with those directions of the High Court. The appellants are
bound by the judgment of the High Court and it is not
open to them to go behind that judgment in this appeal.
No appeal was filed against that judgment and it has
become final. It is well settled that principles of res
judicata can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent stage
of the same proceedings. Once an order made in the
course of a proceeding becomes final, it would be binding
at the subsequent stage of that proceeding. In view of the
High Court judgment dated December 18, 1964, the
Tribunal while passing the order dated September 12,
1967, disposing of the revision petition filed by the
appellant, could not reopen the questions of fact which
had been decided by the Assistant Commissioner and the
Deputy Commissioner. The High Court, in our opinion, was
right in holding in the judgment under appeal that the
concurrent findings of fact arrived at by the Assistant
Commissioner, the Deputy Commissioner and the Tribunal
cannot be set aside in the writ petition. The appeal
consequently fails and is dismissed but in the
circumstances with no order as to costs."
26. The above said judgment is found to be
distinguishable on facts in comparison with the facts
12
(1976) 4 SCC 66
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involved in the present case. Therefore, this judgment is
not helpful to the review petitioners.
27. According to the learned counsel Sri.B.M.Arun
appearing for the review petitioners making observations
that whatever transactions made are subject to Section 52
of the T.P. Act is sufficient and not more than that. He
places reliance on the judgment of Hon'ble Supreme Court
in the case of VINOD SETH v. DEVINDER BAJAJ AND
ANOTHER13 wherein at paragraphs 41, 42 and 43 it 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 the 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 of 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 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 pendens which was enunciated in Bellamy
v. Sabine [(1857) 1 De G & J 566] 44 ER 842:
13
(2010) 8 SCC 1
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"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.
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."
28. The principle of law laid down regarding
pendente lite transactions attract Section 52 of the T.P.
Act. The Hon'ble Supreme Court in VINOD SETH's case
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(supra) has dealt with the challenges made to the order
passed by the High Court regarding validity of a novel and
innovative direction by the High Court, purportedly issued
to discourage frivolous and speculative litigation. The
facts in the above case are that the appellant/plaintiff is a
builder cum real estate dealer and filed the suit for specific
performance upon oral agreement and defendants are the
owners of the property. Therefore, the High Court has
imposed cost of Rs.25 Lakhs on the appellant as it has
brought false and frivolous litigation. In these facts and
circumstances, the observations were made at paragraphs
41, 42 and 43 as above stated. Also at paragraph 45, the
Hon'ble Supreme Court has highlighted the need for
reform for curbing false and frivolous litigations. The High
Court and the Hon'ble Supreme Court have expressed
concern to protect the right of defendants, who are owners
of the property and held several transactions made are
subject to Section 52 of T.P. Act. In those circumstances,
it is observed that whatever transactions to be made by
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defendants conveying the property attracts Section 52 of
T.P.Act and observed that imposition of cost is
unnecessary. In that case, the High Court both Single
Bench and Division Bench have concluded that the suit
filed by appellants is vexatious, frivolous and speculative
litigation and therefore, imposed cost of Rs.25 Lakhs. But
the Hon'ble Supreme Court at paragraph 45 observed that
there is need to make reform and if there is no any
effective provision to curb frivolous litigations, then the
High Courts may impose costs. Therefore, in that case
virtually High Court and Hon'ble Supreme Court have
arrived to protect the rights of defendant, who is the
owner of the property. Therefore, considering the same
spirit expressed by the Hon'ble Supreme Court in VINOD
SETH's case (supra), this Court has also in the same spirit
has passed the order protecting the rights and interest of
the co-sharers/members of the joint family.
29. In the present case, this Court held that under
the facts and circumstances involved in the case ordered
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to reserve 1/4th share to Channamma and Govinda Reddy
as the shield of Section 52 of T.P.Act is a weak protection
to protect the right and interest of Govinda Reddy and
Channamma for the reasons above stated. Also at the
cost of repetition why this order is made for the reason
that the entire transactions are made by the review
petitioners only with builders and if the review petitioners
and the builders sell all the flats in the property during the
pendency of the suit though those transactions are hit by
Section 52 of the T.P.Act, then the real litigation will start
between the purchasers who are large in numbers and
Govinda Reddy and Channamma on the other side and
therefore, it would frustrate Channamma and Govinda
Reddy to get their legitimate share and will keep remain
litigation in getting fruitful decree even in case the suit is
decreed. Therefore, subject to result in the suit and
Section 52 T.P.Act this Court has ordered to reserve 1/4th
share each. Therefore, there is no merit found in the
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submission made by the learned counsel Sri.B.M.Arun for
the review petitioners.
30. Here it is worth to refer the judgment of the
High Court of Delhi in the case of MRS DEEPAK KAUR vs.
S HARI SIMRAN SINGH & ORS14 wherein at paragraph
7 it is observed as follows:
"7. As far as the filing of the earlier suit
CS(OS)738/2010 (713/2007) is concerned, it is admitted
fact that no decree of partition was passed in that suit. It
was agreed that the plaintiff would have 20% undivided
share in the land. The plaintiff now seeks partition of the
property seeking to have her share of 20% of the suit
property determined. The right to seek partition is a
recurring cause of action. In Sri. Kishan v. Shir Ram
Kishan, 2009 (110) DRJ 323 this court held as follows:--
"17. The right to enforce partition is a legal incident
of a co-ownership and as long as such co-ownership
subsists, the right to seek partition continues. The mere
fact that a co-owner files a suit for partition and then
abandons or withdraws it will not deprive him of his right
to seek partition of the joint property. The substantive
right of a co-owner to seek partition of the joint property
will not be extinguished by the provisions of Order XXIII
Rule 1. If the plaintiff brings a suit for partition and then,
for any reason, decides not to enforce the right
immediately and withdraws the suit, then he would be
deemed to have chosen to continue the ownership in
common for some time more till he would find it
necessary again to seek its termination. A suit which is
barred by withdrawal of the claim under Order XXIII Rule
1(3) is one which is based on the same cause of action
but a suit for partition and separate possession of the
share which may be brought subsequently will be on a
cause of action arising upon a demand subsequently made
and refused [See Radhe Lal v. Mulchand: AIR 1924 ALL
905].
14
2019 SCC Online 7487
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18. A Division Bench of this Court in Jai Devi v. Jodhi
Ram: 6 (1970) DLT 549 has held that the bar of second
suit contemplated in Order XXIII, Rule 1(4) is not
applicable to a partition suit, as the cause of action in
such a suit is a recurring one. In the said case the
husband of the appellant therein, Mr. Babu Ram had filed
a suit in the Court of Subordinate Judge Ist Class, Delhi
for partition of the joint family properties. An application
was moved in the said suit by the plaintiff stating that he
intended to withdraw the suit and did not want to pursue
the same. Liberty was not reserved by the plaintiff either
in his application or in his statement in Court to institute a
fresh suit in respect of the subject matter of the suit nor
was permission granted by the Court to withdraw with
liberty to institute a fresh suit. Thereafter the wife of the
plaintiff and his sons filed a suit for the partition of the
same properties. One of the issues before the Court was
whether the subsequent suit was barred by Order XXIII
Rule 1 of the Code of Civil Procedure. The Court observed:
(13) Coming to the merits of the appeal the
only Issue which require determination is whether
the suit out of which the present appeal has arisen
was barred by Order 23, Rule 1 of the Code of Civil
Procedure. The learned Subordinate Judge came to
the conclusion that where a party withdraws a suit
without seeking permission to bring a fresh suit on
the same cause of action or abandons a part of the
claim, he is precluded from claiming the abandoned
relief or from bringing a fresh suit on the same cause
of action. This proposition, as a general proposition,
is correct but it does not apply to suits for partition.
In 1967 (1) Mlj 175 in re: Bajah V. Maheswara
Rao v. Bajah V. Bajeswara Rao it has been held that:
So far as a suit for partition or a suit for
redemption is concerned, it is axiomatic that, when
the plaintiff withdraws his suit, he will be entitled to
file a fresh suit as the cause of action is recurring
cause of action. Even if the plaintiff is not granted
permission, under Order 23, Rule 1, Civil Procedure
Code, he will nevertheless have a right to file a suit
for partition at any time he pleases.
(14) To the same effect are the cases reported
in AIR 1944. Sindh 192; AIR Mad 112;: AIR 1935 Mad 909
and: AIR 1924 All 905. We may only mention one other
case reported in AIR 1950 FC In re: Thota China Subha
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Rao v. Mattapalli Raju where it has been observed:
Provisions like Order 9, Rule 9 or Order 23, Rule 1
will not debar the mortgagor from filing a second suit for
redemption because, as in a partition suit the cause of
action in a redemption suit is a recurring one.
(15) Even though, therefore, liberty was not
reserved while withdrawing the earlier suit, the present
suit would not be barred by Order 23, Rule 1 of the Code
of Civil Procedure."
31. Considering the prayers made in both the suits,
one is for seeking partition of 1/4th share and other one is
seeking relief of declaration to declare that joint
development agreement dated 08.08.2013 as null and
void. The right of filing suit for partition is having
recurring effect and cause of action is continuous one till
severance is taken place. Just because in subsequent suit
filed in O.S.No.4625/2025 by Govinda Reddy, if he has not
mentioned that Channamma has filed O.S.No.2085/2021
and not granted order of temporary injunction that would
not amount to abuse of process of Court considering the
facts and circumstances involved in the case. The trial
court has exercised discretionary power while granting
equitable relief of temporary injunction protecting the
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rights of plaintiff and defendant No.25. In such an event
where an inherent right is involved in deciding the case,
the limitation is to be considered on the main relief of
seeking partition but not on any other ancillary
documentary transactions.
32. The joint development agreement is dated
08.08.2013, but this joint development agreement is only
at the behest of review petitioners having executed to
deprive rights of Govinda Reddy and Channamma,
considered Govinda Reddy as a confirmed party making
recital that he does not have any right, title and
Channamma is not made a party. When this being the
position, the limitation is counted for main relief of
partition and would be dealt in the suit as it is a mixed
question of fact and law, such alone cannot make
deprivation of claiming legitimate right of partition. Under
these facts and circumstances, the judgment relied on by
the counsel for the review petitioners in the case
M.R.VINODA vs. M.S.SUSHEELAMMA (DEAD) BY
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LEGAL REPRESENTATIVES AND OTHERS15 could be
distinguished and not applicable in the present case. The
learned counsel for the review petitioners while
highlighting the factual matrix and observations made at
paragraphs 4 to 11 (which are extracted below) has
submitted that suit filed for partition is bared by limitation.
"4. On 13-3-1969, M.R. Rajashekar, the eldest among
five sons of M.C. Rudrappa who had expired in 1967, and
M.P. Basavaraju, only son of Mogannagowda alias
Puttaswamygowda, who it appears had also expired,
executed a relinquishment deed, marked Ext. P-2, of the
property admeasuring 6 acres 34 guntas in Survey No. 29,
Madenahalli Village (the suit property), in favour of Patel
Mallegowda.
5. On 18-11-1994, M.R. Shivakumar (Plaintiff 1),
M.R. Mallesha (Plaintiff 2), M.R. Vinoda (Plaintiff 3) and
M.R. Chidananda (Plaintiff 4), all younger sons of late M.C.
Rudrappa, filed a suit seeking a declaration that the
relinquishment deed dated 13-3-1969, Ext. P-2, executed
by their eldest brother M.R. Rajashekar, Defendant 4, and
their cousin, M.P. Basavaraju, Defendant 3 in favour of
their eldest uncle Patel Mallegowda, is null and void. Patel
Mallegowda, having expired, his sons M. Shantappa and H.
M. Puttappa were impleaded as Defendants 1 and 2.
6. The plaint, in a nutshell, states that Plaintiff 4
being minor on 13-3-1969, their eldest brother M.R.
Rajashekar, the fourth defendant, had no right to
relinquish their shares. [As per the plaint, all the plaintiffs
had attained majority at the time of execution of the
relinquishment deed except Plaintiff 4. It is observed that
there is some discrepancy with regard to the year of birth
of four plaintiffs. However, in the context of the present
judgment this would not make any difference.] The
relinquishment deed dated 13-3-1969, Ext. P-2, being
void, the property remained the joint Hindu family
property and should be partitioned equally amongst them.
15
(2021) 20 SCC 180
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7. The suit was resisted by Defendants 1 to 3
primarily on the ground that the relinquishment deed is
valid and the suit is barred by limitation.
8. The trial court dismissed the suit as barred by
limitation and that Defendant 4, being the eldest male
member, was entitled to execute the relinquishment deed
on behalf of his branch of the family.
9. In the regular first appeal, the Additional
Sessions Judge decreed the suit inter alia holding that
Defendant 4 was not competent to execute the
relinquishment deed, which being void, the suit was not
barred by limitation.
10. Legal representatives of Defendant 1
preferred Regular Second Appeal No. 1989 of 2006 and
have succeeded by the judgment [M.S.
Susheelamma v. M.R. Shivakumar, 2008 SCC OnLine Kar
548] under challenge passed by the High Court of
Karnataka at Bangalore on 19-11-2008 inter alia ruling
that the relinquishment deed is not void ab initio and the
suit having been filed beyond three years as stipulated
under Articles 58 and 59 of the Schedule to the Limitation
Act, 1963 was barred by limitation. The prayer for the
partition was rejected as the property had ceased to be a
joint Hindu family property inter se the three branches.
11. Aggrieved by the decision, Plaintiff 3 has
preferred this appeal. Plaintiff 1, who is represented by his
legal representative, Plaintiffs 2 and 4, having not
preferred this appeal are the pro forma Respondents 8, 9
and 10. Defendant 1, represented by his legal
representatives are Respondents 1 to 4, and Defendant 2
represented by his legal representative is Respondent 5,
and Defendant 4 is Respondent 7 in the present appeal.
Defendant 3, Respondent 6 herein, has been deleted from
the array of parties."
33. The facts in the above said case are that on
15.04.1961 there are partition deed dividing the joint
hindu family properties inter-se between the three
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branches and the validity of legality of the partition deed,
is accepted and not under challenge. On 13.03.1969 a
relinquishment deed was executed. On 18.11.1994 filed a
suit seeking declaration that relinquishment deed dated
13.03.1969 is null and void. The trial court dismissed the
suit as barred by limitation. The said suit is for declaration
to declare the relinquishment deed dated 13.03.1969 is
null and void and the trial court dismissed the suit as
barred by limitation. The above said suit is not for
partition and the main relief involved in the above stated
case is for declaration to declare relinquishment is null and
void. The suit was dismissed on the limitation, but in the
present case the substantive relief asked is partition. The
relief of declaration to declare agreement dated
08.08.2013 is null and void is ancillary one. This makes
distinguishment in the facts and circumstances in the
above said case and in the present case. Therefore, this
judgment is not applicable to the case of the review
petitioners.
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34. The learned counsel for the review petitioners
has placed reliance on the order passed by this Court in
MFA No.1416/2022 dated 25.03.2022 wherein it is
observed that the suit is for partition and the facts are that
there was already partition on 26.10.2004 and then after
13 years once again the suit is filed for re-partition. Under
these factual matrix and circumstances it is observed that
while denying to grant the relief of temporary injunction
but observed whatever alienations are subject to Section
52 of the T.P. Act. Here in the present case Govinda
Reddy and Channamma have not filed the suit for seeking
re-partition. Also in the present case it is not the case of
review petitioners that there was prior partition. For the
first time, the suits are filed for partition but in the above
cited stated case there is already a registered partition in
the year 2004 and the appellant was party to the said
partition deed. This makes difference in the facts and
circumstances involved in the above cited case and in the
present case. In the present case, it is not sufficient to
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safeguard the rights and interest of the Govinda Reddy
and Channamma with the aid of Section 52 of the T.P.Act
only and prima facie warrants to give more protection.
35. Further, learned counsel Sri.B.M.Arun appearing
for the review petitioners argued that the relief prayed in
prayer (iii) in the plaint regarding seeking declaration of
the joint development agreement 08.08.2013 as null and
void by contending that said prayer is barred by limitation
and where main relief could not be granted, then interim
relief shall also not be granted. He places reliance on the
judgment of Hon'ble Supreme Court in the case of
COTTON CORPORATION OF INDIA LIMITED v.
UNITED INDUSTRIAL BANK LIMITED AND OTHERS16
wherein at paragraph 10, it has held as follows:
"10. Mr Sen, learned counsel for the respondent
Bank, contended that Section 41(b) is not at all attracted
because it deals with perpetual injunction and the
temporary or interim injunction is regulated by the Code
of Civil Procedure specially so provided in Section 37 of
the Act. Expression 'injunction' in Section 41(b) is not
qualified by an adjective and therefore, it would
comprehend both interim and perpetual injunction. It is,
however, true that Section 37 specifically provides that
temporary injunctions which have to continue until a
16
1983 (4) SCC 625
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specified time or until further order of the court are
regulated by the Code of Civil Procedure. But if a
dichotomy is introduced by confining Section 41 to
perpetual injunction only and Section 37 read with Order
39 of the Code of Civil Procedure being confined to
temporary injunction, an unnecessary grey area will
develop. It is indisputable that temporary injunction is
granted during the pendency of the proceeding so that
while granting final relief the court is not faced with a
situation that the relief becomes infructuous or that during
the pendency of the proceeding an unfair advantage is not
taken by the party in default or against whom temporary
injunction is sought. But power to grant temporary
injunction was conferred in aid or as auxiliary to the final
relief that may be granted. If the final relief cannot be
granted in terms as prayed for, temporary relief in the
same terms can hardly if ever be granted. In State of
Orissa v. Madan Gopal Rungta [1951 SCC 1024 : AIR
1952 SC 12 : 1952 SCR 28 : 1951 SCJ 764] a Constitution
Bench of this Court clearly spelt out the contours within
which interim relief can be granted. The Court said that
'an interim relief can be granted only in aid of, and as
ancillary to, the main relief which may be available to the
party on final determination of his rights in a suit or
proceeding'. If this be the purpose to achieve which power
to grant temporary relief is conferred, it is inconceivable
that where the final relief cannot be granted in the terms
sought for because the statute bars granting such a relief
ipso facto the temporary relief of the same nature cannot
be granted. To illustrate this point, let us take the relief
which the Bank seeks in its suit. The prayer is that the
Corporation be restrained by an injunction of the court
from presenting a winding up petition under the
Companies Act, 1956 or under the Banking Regulation
Act, 1949. In other words, the Bank seeks to restrain the
Corporation by an injunction of the court from instituting a
proceeding for winding up of the Bank. There is a clear bar
in Section 41(b) against granting this relief. The court has
no jurisdiction to grant a perpetual injunction restraining a
person from instituting a proceeding in a court not
subordinate to it, as a relief, ipso facto temporary relief
cannot be granted in the same terms The interim relief
can obviously be not granted also because the object
behind granting interim relief is to maintain status quo
ante so that the final relief can be appropriately moulded
without the party's position being altered during the
pendency of the proceedings."
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36. It is the principle of law laid down in the above
said case that if the final relief cannot be granted in terms
as prayed for, temporary relief in the same terms can
hardly be granted. There is no complete bar for granting
an order of temporary injunction. The word used is "can
hardly be granted". Considering the prayer made in the
suit in the present case and also in O.S.No.2085/2021, the
substantive relief is seeking partition. Considering the
relief claimed by the plaintiffs in both the above said suits
filed by Channamma and Govinda Reddy, the substantive
relief in the suits is partition of suit properties. Other
prayers are ancillary. The right seeking partition cannot
be curtailed by any instrument by some of members of
joint family. Main relief is to be considered which is
partition here and if it is proved the properties are joint
family properties then there could be grant of relief of
partition as it is prima facie revealed in the present case.
On the factual matrix involved in the above said case it
can be distinguished from the present case, as above
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explained, therefore this judgment is also not applicable to
the present case.
37. Therefore, the grounds taken at paragraph 13
in the review petition that interim relief could not be
granted is found to be meritless and this Court has not
extended undue latches, but this Court by allowing the
appeal in-part has safeguarded and protected the interest
and right of the co-sharers/members of the joint family for
the reasons stated supra during pendency of the suit. Also
the court has permitted the review petitioners utilize other
portion of properties for consideration. Hence, there is no
absolute bar to utilize other portions. There is no merit
found in the review petition to review the order and
whatever arguments addressed by the learned counsel for
the review petitioners in MFA were already canvassed in
the appeal and those are considered and as such, there is
no error apparent on the face of the record.
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38. Learned counsel for the review petitioners
Sri.B.M.Arun has filed a Memo stating that in respect of
item Nos.8 and 9 of schedule properties the joint
development agreement dated 08.08.2013 is executed
with the developer/respondent No.27 stating that the
plaintiffs have no claim over the suit schedule properties
as they are not parties to the suit and submitted
calculation, which reads as follows:
1) Total number of Towers: 7.
2) Total number of Flat: 380.
3) Share of Flats of the Petitioners and
Respondents 3 to 24/Defendants 1 to 24: 129.
The have sold 69 Flats, remaining 50 Flats are
available.
4) Share of Flats of the Developer (Respondent
No.27) 216. All 216 sold.
5) Share of Vasudeva Reddy and family: 31 (nor
part of the suit).
6) 4 Flats-kept as vendors Hold in the Sharing
Agreement dated 12.08.2013.
7) Estimated Amount towards Completion of
the remaining portion of the Share of the 50
Flats of Petitioners and respondents 3 to
24/Defendants 1 to 24-Rs.10 Crores (approx).
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8) Settlement with the Appellant Owner's
Association amount payable Rs.3 Crores.
9) Pending works (BWSSB, BESCOM, Occupancy
Certificate etc., of the entire project), Petitioners
and Respondents 3 to 24/Defendants 1 to 24
share -Rs.10 Crores.
10) It is of note that Maintenance Charges and
Electricity Charges may become applicable
towards unsold flats.
39. Considering the above said memo with factual
figures of the flats is found to be false one for the reason
that it is stated that still amount is required for completion
of remaining portion of share of the 50 flats of the
petitioners and respondent Nos.3 to 24 of Rs.10 Crores by
showing pending works as BWSSB, BESCOM, Occupancy
Certificate, etc. But at the same time, in the Memo it is
stated that the share of flats of developer which are 216
were sold and the share of flats of petitioners and
respondent Nos.3 to 24, which are all 129 flats out of
which 69 flats were sold and remaining 50 flats are
available, but at the same time it is stated some pending
works are required. Therefore, without completion of
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pending works and without obtaining completion certificate
how the flats were sold out is a question for consideration
on the Memo filed by the counsel for the review
petitioners. If some works of BWSSB, BESCOM and
obtaining occupancy certificate and completion certificate,
etc., are pending, how the flats were sold out without
there being these essential things to be done. Therefore,
this itself falsifies the contention of the review petitioners.
40. Furthermore, it is stated that there are total 7
towers and total number of flats are 380 and the shares
are apportioned between the developers, review
petitioners and defendant Nos.1 to 24, but there is no
allotment of shares to be made to plaintiffs and defendant
No.25. Therefore, in this context, if all the flats are sold
out then nothing remains for plaintiff and defendant No.25
for getting fruits out of decree in case the suit is decreed
for partition. Therefore, the review petition filed is found
to be nothing but threatening and dictating the Court to
pass such orders according to the convenience of the
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review petitioners and at their whims and fancies. In this
regard the arguments canvassed by the counsel for the
review petitioners in such a way that virtually it is
amounting to dictating and threatening the Court. I have
my own doubt whether the review petitioners have
instructed the learned counsel Sri.B.M.Arun in this regard
to make these types of submissions, which are witnessed
in the open Court Hall.
41. Therefore, the entire review petition is
misconceived one. Apart from vexatious, false and
frivolous as present case is one of the example how the
mighty people are controlling and dominating the
vulnerable sections, vulnerable parties to deprive the
legitimate rights of getting share in the properties. The
petitioners have entered into an agreement in such a way
that there could not be share given to plaintiffs and
defendant No.25 hand-to-hand with the developer.
Therefore, in these circumstances, this case would be one
of the example how the mighty people are causing
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deprivation of co-sharers/members of the joint family in
giving their legitimate share, who are vulnerable people.
Whether suit item Nos.8 and 9 properties are joint family
properties or not is the question to be decided in the suit.
42. Therefore, the review petition is found to be
misconceived, frivolous and vexatious and thus, liable to
be dismissed for the reasons above discussed. Hence, it is
dismissed with cost of Rs.25,000/-.
43. Hence, I proceed to pass the following:
ORDER
(i) The review petition is dismissed with cost of
Rs.25,000/-.
ON ADVOCACY:
44. Now let me make observations on the manner
in which the learned counsel Sri.B.M.Arun has argued on
the review petition is to be observed and considered here.
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45. Sri.B.M.Arun, learned counsel argued the
matter on review petition in the tone of virtually
threatening the Court and with an intention to compel to
pass the order according to his whims and fancies what he
wants. Just because in MFA No.7416/2025 according to
his understanding he failed to get the order according to
his wishes and by making certain remarks on the Court he
has argued with all vehemence showing his anguish
personally to the Court. These submissions are made on
three occasions dated 18.12.2026, 09.02.2026 and
06.02.2026. Therefore, this Court is constrained to make
some observations, which are as follows:
(i) There are several duties of an Advocate to the
Court and one among prominent is the Advocate
shall act in the Court in a dignified manner and
respect the court;
(ii) This court need not make any observations on
Sri.B.M.Arun, Advocate but because of his
submissions which are virtually threatening and
remarking on the Court, compelled this Court to
make some observations not with any punitive
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action but to make remembering to the said
Advocate. This observation is confined to only
learned counsel Sri.B.M.Arun, Advocate.
(iii) It appears to the Court prima facie by his argument
that said advocate has too much personally
involved in the case as if it is his own brief and
when he is dissatisfied with the order passed by this
Court in MFA No.7416/2025 it is an option for him
to approach the Hon’ble Apex Court, but without
doing so on the guise of filing review petition has
browbeaten, threatening and dictating in nature
and his submissions are appearing to disrespect the
Court and virtually he wanted to get orders
according to his wishes. This makes the Court
unhappy regarding conduct of the learned counsel
Sri.B.M.Arun.
46. The Hon’ble Supreme Court in the case of
CHETAK CONSTRUCTION LTD. vs OM PRAKASH AND
OTHERS17, reminds the Lawyers and Judges of their
duties and functions and towards dispensation of justice.
The words expressed by Hon’ble Supreme Court in the
above said case at paragraphs 16 and 17 should remind all
17
(1998) 4 SCC 577
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of us the duties of Lawyers’ and the Judges’ as to how
they are important in the voyage of justice. At paragraphs
16 and 17 their Lordships were pleased to observe as
follows:
“16. Indeed, no lawyer or litigant can be permitted to
browbeat the court or malign the presiding officer with a
view to get a favourable order. Judges shall not be able to
perform their duties freely and fairly if such activities were
permitted and in the result administration of justice would
become a casualty and rule of law would receive a
setback. The Judges are obliged to decide cases
impartially and without any fear or favour. Lawyers and
litigants cannot be allowed to “terrorize” or “intimidate”
Judges with a view to “secure” orders which they want.
This is basic and fundamental and no civilised system of
administration of justice can permit it. We certainly,
cannot approve of any attempt on the part of any litigant
to go “forum-shopping”. A litigant cannot be permitted
“choice” of the “forum” and every attempt at “forum-
shopping” must be crushed with a heavy hand.
17. At the same time, it is of utmost importance to
remember that Judges must act as impartial referees and
decide cases objectively, uninfluenced by any personal
bias or prejudice. A Judge should not allow his judicial
position to be compromised at any cost. This is essential
for maintaining the integrity of the institution and public
confidence in it. The credibility of this institution rests on
the fairness and impartiality of the Judges at all levels. It
is the principle of highest importance for the proper
administration of justice that judicial powers must be
exercised impartially and within the bounds of law. Public
confidence in the judiciary rests on legitimacy of judicial
process. Sources of legitimacy are in the impersonal
application by the Judge of recognised objective principles
which owe their existence to a system as distinguished
from subjective moods, predilections, emotions and
prejudices. Judges must always ensure that they do not
allow the credibility of the institution to be eroded. We
must always remember that justice must not only be done
but it must also be seen to be done.”
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47. The Hon’ble Supreme Court in the case of
RAMESHWAR PRASAD GOYAL, ADVOCATE, IN RE18
has observed that an Advocate being an Officer of the
Court has a duty to ensure smooth functioning of the
Court and also Lawyers are equal partners with the Judges
in the administration of justice.
48. The Lawyers play an important and pivotal role
in the administration of justice. The profession itself
requires the safeguarding of high moral standards. Since
the main job of lawyer is to assist the Court in
dispensation of justice, therefore, the Advocate cannot
behave with the Court in a disrespectful manner. But, in
the present case, the way in which Sri.B.M.Arun, Advocate
has argued is nothing but shouting to the Court derogative
to the dignity and decorum of the Court, which is
witnessed by the Officials of the Court as well as
Advocates, who were present in the Court Hall at Dharwad
Bench.
18
AIR 2014 SC 850
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49. It is worthwhile to mention here in what way
the order is passed in MFA No.7416/2025. The suit is filed
for partition. This Court has ordered to protect the
interest of co-sharers by passing the orders of reserving
the shares to plaintiff and defendant No.25 on the reason
that the other co-sharers have played dominant role
virtually causing deprivation of giving a share to defendant
No.25 and to the plaintiff both who are old aged woman
and deaf & dumb respectively. The agreement of the year
2007, 2011, 2013 and 2018 above stated are the example
that protection by mere Section 52 of the T.P. Act is not
sufficient, also compelled this Court to make order for
reserving shares of plaintiff and defendant No.25. The
reason is, if all the flats and apartments are sold out
during the pendency of the suit though Section 52 of
T.P.Act is applicable, but virtually plaintiff and defendant
No.25 would be relegated to more litigations with hundred
number of persons who are purchasers of flats in future
that frustrate the parties who seeks justice at the hands of
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the Court. Dispensation of justice must be real and
practical but shall not be a mere paper decree. Therefore,
in this context, the observations are made in MFA
No.7416/2025 but learned counsel Sri.B.M.Arun Advocate
became angry and made remarks in the Court, which are
unwarranted.
50. The Court has witnessed that Sri.B.M.Arun has
frustrated himself by the order passed in MFA
NO.7416/2025. Even this Court has expressed its view if
being aggrieved by the order passed in MFA
No.7416/2025, then the parties are at liberty to approach
the Hon’ble Supreme Court. Filing of review petition is
statutory right of the parties and let them file, but on the
guise of filing review petition no one should threaten or
defame or browbeat the Court, just because they did not
receive the order what they want. Therefore, this Court is
constrained to make above observations.
51. The Hon’ble Supreme Court in the case of
MAHABIR PRASAD SINGH v. M/S. JACKS AVIATION
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PVT. LTD.19 has observed that the judicial function cannot
and should not be permitted to be stoneward by
browbeating or bullying methodology either it is by
litigants or by counsel. Therefore, this Court is compelled
to make the above observations what it transpired in the
Court while hearing the review petition.
52. A client engages a lawyer for addressing his
grievances. The lawyer is not an agent of his client, but
he is dignified, responsible spokesman. The lawyer cannot
wear shoes of his client. The Court cannot satisfy both
parties; one party obviously being dissatisfied and the
Advocate – Sri.B.M.Arun could not have stepped into the
shoes of the client to express his dissatisfaction as if it is a
personal case and ought not to have addressed the Court
in the conduct disrespecting the Court and harming dignity
and decorum of the Court. In this review this Court
observed the learned Advocate – Sri.B.M.Arun has
19
AIR 1999 SC 287
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exceeded his limits while addressing the Court on the
review petition.
53. Though this may be one of the factors to
request the Bar Council to take necessary disciplinary
action against said Advocate – Sri.B.M.Arun, but this court
has restrained itself not to take such excessive steps as
the Court has highest regard to Advocates.
54. For the aforesaid reasons discussed from
paragraph Nos.1 to 43, the review petition is dismissed
on its merit. It is made clear that the observations made
at paragraph Nos.44 to 53 are only regarding the manner
in which the arguments are canvassed by the learned
counsel Sri.B.M.Arun and these observations are nothing
to do with the merit and result in the review petition.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR
List No.: 19 Sl No.: 1