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Supreme Court of India
Acqua Borewell Pvt. Ltd. vs Swayam Prabha on 17 November, 2021Author: M.R. Shah
Bench: M.R. Shah, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6779-6780 OF 2021
Acqua Borewell Pvt. Ltd. …Appellant
Versus
Swayam Prabha & Others …Respondents
WITH
CIVIL APPEAL NOS. 6787-6788 OF 2021
CIVIL APPEAL NOS. 6789-6790 OF 2021
CIVIL APPEAL NOS. 6791-6792 OF 2021
CIVIL APPEAL NOS. 6793-6794 OF 2021
CIVIL APPEAL NOS. 6781-6782 OF 2021
CIVIL APPEAL NOS. 6785-6786 OF 2021
CIVIL APPEAL NOS. 6783-6784 OF 2021
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court of Karnataka at Bengaluru
dated 22.09.2020 in M.F.A. No. 1638/2020 and M.F.A. No. 1849/2020
(CPC), by which the High Court has allowed the aforesaid appeals in
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.11.17
part and has modified the interim injunction granted by the learned XIV
17:02:23 IST
Reason:
Additional City Civil Judge, Bengaluru, CCH 28 (hereinafter referred to
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as the learned ‘trial Court’) passed in IA Nos. 1, 18, 22 and 24 in O.S.
No. 4709/2019 and restricted the injunction against alienation to the
extent of 1/7th share in the total plaint schedule properties till the disposal
of the case, the third parties have preferred the present appeals.
2. That respondent nos.1,22,23 and 24 herein have instituted O.S.
No. 4709/2019 before the learned trial Court seeking a declaration that
the plaintiffs and defendants 18 & 19 (respondent nos. 19 & 20 herein)
are entitled to their mother Laxmi Devi’s 1/7 th share in the total plaint
schedule properties and consequently prayed for a decree for partition
and separate possession. They have also further sought a declaration
that 2015 Settlement Deed is void ab-initio.
2.1 At this stage, it is required to be noted that the plaint schedule
properties consist of number of properties ranging from A1 to A40 in the
said suit. The original plaintiffs filed IA No. 1 in OS No. 4709/2019
seeking ex-parte ad-interim injunction qua the suit schedule properties.
The learned trial Court initially granted ex-parte injunction restraining the
defendants in the suit from alienating and creating any charge and third
party interest upon the suit schedule properties to the extent of the
plaintiffs share, till the next date of hearing of the interim injunction
application. That by order dated 26.09.2019, the learned trial Court
dismissed IA No.1 in OS No. 4709/2019 and refused to grant an interim
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injunction in favour of the plaintiffs, inter alia, holding that some of the
suit schedule properties are evidently owned by the
firms/trusts/companies which entities have not been made parties to the
suit.
2.2 Aggrieved by the order passed by the learned trial Court refusing
to grant injunction, one of the plaintiffs in O.S. No. 4709/2019 preferred
M.F.A. No. 1638/2020 before the High Court. The other plaintiffs also
filed a separate appeal being M.F.A. No. 1849/2020 (CPC). By the
impugned common judgment and order, the High Court has partly
allowed the said appeals and has modified the order passed by the
learned trial Court in the interim injunction application and has directed
to issue restraint order qua the defendants against the alienation to the
extent of 1/7th share in the total plaint schedule properties till disposal of
the case. The High Court has also passed an order insofar as the
activity such as construction, improvements, whether fresh or
modification, are conducted over the schedule properties, the party
doing so shall be doing it at his risk and shall not be entitled to claim
equity at the end.
3. Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court granting injunction to the
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extent of 1/7th share in the total plaint schedule properties, the third
parties to the suit have preferred the present appeals.
3.1 It is the case on behalf of the appellants that some of the suit
properties for which the injunction has been granted, the appellants have
right, title or interest on the basis of the development agreement/s and/or
otherwise and though they are directly affected by the interim injunction
granted by the High Court, they are not made parties to the suit and the
injunction has been granted with respect to properties in which the
appellants herein claim right, title or interest without hearing them.
3.2 It is also the case on behalf of the appellants that as such the
plaintiffs have filed the application/applications to implead the appellants
herein as party to the suit contending inter alia, that the appellants are
the necessary and proper parties. It is submitted that without disposing
of the said application/applications to implead the appellants as
necessary and proper parties, the High Court ought not to have granted
injunction with respect to properties in which the appellants claim right,
title or interest.
3.3 It is submitted that the High Court has failed to appreciate that the
learned trial Court passed a reasoned and speaking order while refusing
to grant injunction. It is submitted that the learned trial Court specifically
observed while refusing to grant injunction that some of the properties
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are standing in the name of the firms/trusts/companies and admittedly
the said entities have not been made parties to the suit. It is submitted
that despite the above, the High Court has granted injunction with
respect to properties in which the appellants claim right, title or interest,
without impleading the appellants and without giving them an opportunity
of being heard.
4. Learned counsel appearing on behalf of the original
plaintiffs/original appellants before the High Court have supported the
impugned common judgment and order passed by the High Court.
5. We have heard Shri K.V. Vishwanathan, learned Senior Advocate
appearing for the appellants and Shri Saurabh Kansal, learned Advocate
appearing on behalf of the contesting respondent nos. 1,20 & 23.
5.1 At the outset, it is required to be noted that against the suit
schedule properties A1 to A40, the appellants herein – third parties to
the suit are claiming right, title or interest on the basis of the
development agreements or otherwise with respect to Schedule A 6
(Part); Schedule A8; Schedule A9, A30, A32 (Part); Schedule A1,
A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part); Schedule A4(Part),
A34(Part); Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27,
A34(Part); and Schedule A3, A28, A32, A37 & A38. It is also not in
dispute that the application/s submitted by the original plaintiffs to
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implead the appellants herein as proposed defendant nos. 20, 21, 26,
18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed
by the original plaintiffs to implead the appellants as defendants to the
suit contending inter alia, that they are necessary and proper parties.
Therefore, according to the plaintiffs also, the appellants herein
(proposed defendants) are necessary and proper parties. Therefore,
before granting any injunction with respect to the properties in which the
appellants herein (proposed defendants) are claiming right, title or
interest on the basis of the development agreements or otherwise they
ought to have been given an opportunity of being heard. No injunction
could have been granted against them without impleading them as
defendants and thereafter without giving them an opportunity of being
heard.
6. It is required to be noted that the learned trial Court dismissed the
injunction application and refused injunction by observing that some of
the properties are evidently owned by the firms/trusts/companies which
have not been made parties to the suit. Therefore, the impugned
common judgment and order passed by the High Court granting
injunction with respect to 1/7th share in the total plaint schedule
properties which has been passed without giving an opportunity of being
heard to the appellants and without impleading them as party-
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defendants in the suit by the learned trial Court, is unsustainable and
deserves to be quashed and set aside.
7. In view of the above and for the reasons stated above, all these
appeals succeed. The impugned common judgment and order passed
by the High Court granting injunction against alienation to the extent of
1/7th share in the total plaint schedule properties is hereby quashed and
set aside qua Schedule A6 (Part); Schedule A8; Schedule A9, A30, A32
(Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part);
Schedule A4(Part), A34(Part); Schedule A35; Schedule A4(Part),
A11(Part), A25, A26, A27, A34(Part); and Schedule A3, A28, A32, A37 &
A38 properties only.
The learned trial Court to first decide and dispose of the
application/applications filed by the plaintiffs to implead the appellants
herein as party-defendants in O.S. No. 4709/2019 after giving them an
opportunity of being heard, which shall be considered and decided in
accordance with law and its own merits and thereafter, if at all the
appellants herein – proposed defendants are impleaded as party-
defendants, the learned trial Court to consider the interim injunction
application afresh with respect to the properties mentioned above, in
accordance with law and its own merits.
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8. The present appeals are allowed to the aforesaid extent. No
costs.
…………………………………J. [M.R. SHAH]
NEW DELHI; …………………………………J.
NOVEMBER 17, 2021. [B.V. NAGARATHNA]
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