Single Application For Injunction Against Alienating, Mortgaging Or Changing Nature Of Suit Land Not Barred By Civil Practice Rules: Karnataka HC

A single judge bench of Justice Suraj Govindaraj sitting at Dharwad allowed the petition filed by one Allabaksh and set aside the order passed by trial court and appellate court by which the application filed under Order XXXIX Rules 1 and 2 of CPC was dismissed.

Case Details:

The petitioner filed a suit in 2013, seeking a declaration that plaintiff is joint owner and in possession of suit land and further, directing the defendant to hand over the possession of half share in the suit land to plaintiff. An application under Order XXXIX Rules 1 and 2 of CPC came to be filled.

However, the trial court dismissed the application on the grounds that application under Order XXXIX Rules 1 and 2 was made seeking for multiple prayers whereas in terms of Rule 23 of Civil Rules of Practice, 1967, there has to be separate application in respect of each distinct prayer.

Findings:

The bench noted that the use of the word distinct in Rule 23 would mean that the said prayer has to be distinct from each other and not consequent or dependent on the prayer sought for.

Then it held, "The application filed in the present matter seeking for injunction, restraining the defendant from transferring, alienating, mortgaging, creating gift or any right in changing nature of the suit land, in my considered opinion would not amount to distinct prayers being sought for since all the said prayers are related to each other and filing of the single application seeking for a said relief would not be in violation or come within a mischief of Rule 23 of the Civil Rules of Practice, 1967."

The bench then opined, "Procedure is only an handmaiden of justice and merely on account of a procedural violation none of the Courts ought to deny relief to a party that he may be entitled to. The Courts have held that even if the provision in the particular application is not properly shown and/or the reliefs are not properly worded, the Court should have adequate and sufficient powers to mould the relief to come within the purview of the particular provision as also make available relief which is required to be granted in the particular said facts."

It then observed, "If at all the trial court were to be of the opinion that there are distinct reliefs which are sought or under a single application an option ought to have been provided to restrict the prayer to one distinct one, reserving liberty to file another application for the other distinct prayer. It is only if the option was not exercised by the applicant that the application could have been dismissed."

Finally it said, "In matters relating to suit for declaration where the prescribed court fee is paid and injunction order sought to preserve the property and protect the same from alienation, in the event of alienation being made, the very subject matter of the suit would be lost as also it would result in multiplicity of proceedings. In such circumstances, I am of the considered opinion that the rejection of the relief sought for by plaintiffs by the Trial Court as also by the 1st Appellate Court is not proper."

Accordingly it allowed the petition.

Case Title: ALLABAKSH v. IMAM HUSSAIN

Case No: WRIT PETITION NO. 109761 OF 2016

Citation: 2022 LiveLaw (Kar) 441

Date of Order: 21ST DAY OF OCTOBER, 2022

Appearance: V M SHEELVANT, ADVOCATE for petitioner; S S PATIL AND MAHANTESH R PATIL, ADVOCATE for respondent.

Click Here To Read/Download Order