- 1 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 4052 OF 2020 (CPC) BETWEEN: 1. SHRI. S. MAHAVIRCHAND DHARIWAL S/O LATE P. SUGANCHAND DHARIWAL AGED ABOUT 63 YEARS RESIDING AT NO.355, 1ST CROSS ROAD ROBORTSONPET KOLAR GOLD FIELDS-563 122 2. SMT. NIRMALA W/O SHRI. S. MAHAVIRCHAND DHARIWAL AGED ABOUT 63 YEARS RESIDING at NO.355, 1ST CROSS ROAD ROBORTSONPET KOLAR GOLD FIELDS-563 122 …APPELLANTS (BY SMT. SRUTI CHAGANTI, ADVOCATE FOR SRI. SHEKHAR BADIGER, ADVOCATE) AND: SHRI. ASHOK S. DHARIWAL S/O LATE P. SUGANCHAND DHARIWAL AGED ABOUT 67 YEARS RESIDING AT NO.7, SHRAVANI PRIDE MARKET ROAD, GANDHI BAZAAR BANGALORE 560 004 …RESPONDENT (BY SRI. P.D. SURANA, ADVOCATE ) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.09.2020 PASSED ON I.A.NO.1 IN OS.NO. 132/2018 ON THE FILE OF THE XLIII ADDITIONAL Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 CITY CIVIL JUDGE, BENGALURU, DISMISSING THE I.A. NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC. THIS MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This Misc.First Appeal is preferred by the appellants under Order 43 Rule 1(R) of CPC, of 1908 being aggrieved by the order dated 14.09.2020 passed by the XLIII Additional City Civil and Sessions Judge, Bengaluru (CCH No.44) in OS No.132/2018, whereby, the learned trial Court dismissed IA.No.1 filed under Order 39 Rules 1 and 2 CPC seeking temporary injunction against respondent- defendant. 2. The appellants herein are the plaintiffs in the suit who have sought cancellation of four registered gift deeds executed on 5.8.2014. Plaintiff no.2 who originally owned Schedule A and 1/4th undivided share in schedule B- 1 property had gifted her rights to plaintiff no.1., i.e. her - 3 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 husband, who in turn gifted same to the defendant, his brother. The plaintiff's claim is that, the said transactions were not gratuitous but, formed part of a single transaction involving reciprocal promises which included a payment of Rs.25 lakhs and a promise of allotment of 10,000 sq.ft. of built up area in a future joint development project allegedly proposed by the defendant. 3. According to the plaintiffs, the defendant persuaded them to execute the gift deeds as a means to facilitate khata amalgamation necessary for development. It is further alleged that, the plaintiffs were later shocked to receive summons in OS no.5286/17 filed by the defendant claiming repayment of Rs.25 lakhs., portraying the amount as a loan rather than part of development consideration on alleged fraud, misrepresentation and unjust enrichment, the plaintiffs sought cancellation of gift deeds and a temporary injunction restraining the def. from alienating or encumbering subject properties pending disposal of the suit. - 4 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 4. The learned trial Court, after a detailed examination of the pleadings, documents and legal principles, dismissed the application for temporary injunction. Being aggrieved by the same, now the appellants are before this Court. Having heard the arguments and on perusal of records, upon re-appreciation of the entire materials, this Court finds no reason to interfere with a well considered findings of the trial Court for the following reasons: Learned counsel for the appellant though relied upon the plaint averments, documents and pointed out certain observations, made by the trial Court in the impugned order, but, failed to convince this Court that, what is the fault being committed by the trial court in passing the impugned order. Repeatedly, it is submitted by the appellant-plaintiff that, though prayer nos. 1 and 2 if not maintainable, the other prays are maintainable and the trial court has committed mistake with regard to reciprocal promises made by the defendant and ultimately - 5 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 false suit portraying the amount as the amount paid by him and sought for recovery of the same. To that effect, he has filed a separate suit. On receipt of the suit summons, the plaintiffs were shocked with regard to the pleadings made by the defendant in the said suit. Therefore, to protect the interest of the plaintiffs in the schedule property it is necessary to grant the interim order. 5. As against this submission, the learned Sri P.D.Surana, counsel for the respondents supported the reasons assigned by the trial Court while passing the impugned order. He submits that, when equitable remedy is sought by the plaintiff, the plaintiff has to comply the components of grant of temporary injunction. None of the ingredients with regard to grant of temporary injunction are fulfilled by the plaintiffs with acceptable evidence. Therefore, he would submit that, this appeal is devoid of any merits and prays to dismiss the appeal. - 6 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 6. At the outset, this Court notes that, the relief of temporary injunction is an equitable remedy governed by the three cardinal principles i.e. no.i) the existence of prima facie case, ii) Balance of convenience and iii) Irreparable injuries. These are not to be decided in abstract but, on the strength of the pleadings, documents and the probabilities. In the present case, the plaintiffs have failed to satisfy any of these three limbs warranting such relief. 7. The registered gift deeds are dated 5.8.2014 stand undisputed with regard to their execution. These are solemn documents duly registered and executed without any recitals indicating conditionality or dependence upon a future contract. Section 122 of Transfer of Property Act defines a `Gift' as transfer of property made voluntarily and without consideration. The deeds in question explicitly mention love and affection as a motive and categorically declare the gifts to be unconditional. There is no mention of either Rs.25 lakhs or 10,000 sq.ft. built up area in the said deeds. Courts are reluctant to entertain extraneous oral - 7 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 agreements or unilateral assertions to alter the terms of such solemn registered documents unless fraud is clearly established. 8. From the record so placed by the plaintiff, it is very much clear that, they seek to create a contractual framework post facto by contending that, the gifts were reciprocal promises as defined under Section 2(f) of Indian Contract Act. However, the law does not permit a gift which, by nature is without consideration, to be treated as consideration for another promise unless the entire agreement is properly documented and registered. The plaintiffs have failed to produce any memorandum of understanding, agreement to develop or any corresponding evidencing mutual obligations. The entire arguments rests upon tenuous claim of inducement which is unsubstantiated by written record. 9. The allegation of fraud while serious requires precise pleadings and cogent evidence even at the prima - 8 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 facie stage. The mere fact that, a recovery suit was filed by the def. cannot by itself, establish fraud. The transaction becomes suspect, but, suspicion alone is not evidence. The trial Court rightly noted that, there was no specific material to show that, the defendant at the time of execution had no intention of fulfilling the promises. Courts have consistently held that, fraudulent intent at the inception must be clearly shown: it cannot be presumed. 10. Even on reading the plaint averments and prayer, the plaint so framed also suffers from procedural inconsistencies. The plaintiffs have sought cancellation of gift deeds executed by plaintiff no.2 in favour of plaintiff no.1 who is co-plaintiff. A plaintiff cannot ordinarily seek relief against another co-plaintiff in the same suit without proper cause restructuring and without converting the suit into one involving adversarial claims between co-plaintiffs. The trial Court was correct in noting that such prayers are not maintainable. Further, plaintiff no.2 has sought for cancellation of deeds executed by plaintiff no.1 in favour of - 9 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 defendant despite being a stranger to that transaction. This again is legally unsustainable as no person who is not a party to a contract can seek its cancellation, unless it directly affects their rights. 11. Another glaring defect in the suit is non-joinder of necessary parties. The suit schedule B-1 property in which the plaintiff's claim a share, is jointly owned by multiple co-owners including the defendant wife and one Pushpadevi. Any challenge to gift deeds affecting joint undivided properties necessarily requires impleadment of all affected parties to avoid multiplicity of proceedings and to enable a comprehensive adjudication. The omission to do so renders the suit partly defective. 12. The apprehension of alienation or encumbrance is also not well founded. The plaintiffs have not produced any document or communication suggesting that, the defendant is attempting to sell, mortgage or otherwise deal with the property in a manner adverse to their interest. It - 10 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 is trite that, for an injunction to be granted, the threat must be real, imminent and credible. A vague apprehension is insufficient. Moreover, doctrine of lis pendens under Section 52 of Transfer of Property Act provides sufficient protection to the plaintiffs. Any alienation during pendency of the suit would be subject to the outcome of litigation and purchasers if any, would take the property with full notice of the existing dispute. 13. The learned trial Court further found that, the plaintiffs have not approached the court with clean hands. They admittedly received 25 lakhs and have not refunded the same. Yet, they have not sought any specific relief for possession of the alleged 10,000 sq.ft. of built up area which they now claim as promised. The absence of such a prayer shows that, the plaintiffs are attempting to selectively approbate and reprobate which is impermissible in law. - 11 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 14. It is a settled proposition that, an appellate court will not interfere with discretionary order unless it is shown that, discretion has been exercised arbitrary and or illegally. In the present case, the learned trial Court has passed a detailed and reasoned order examining all the relevant documents, pleadings and law. Plaintiffs have failed to demonstrate that, the said order suffers from perversity or illegality wanting interference under appellate jurisdiction. 15. This Court is satisfied that, the learned trial Court has justified in refusing to grant temporary injunction the appellants have failed to demonstrate the prima face case of fraud, they have not established imminent threat of alienation and they have not shown that balance of convenience tilts in their favour. No irreparable injury is caused to them if injunction is refused. On the contrary allowing such injunction on speculative claims would result in misuse of equitable jurisdiction and undue hardship to the defendant who is presently the recorded owner under - 12 - HC-KAR NC: 2025:KHC:25509 MFA No. 4052 of 2020 registered documents. Accordingly, as the appeal is devoid of merit, is liable to be dismissed. Resultantly, pass the following: ORDER (i) Appeal is dismissed. (ii) The order dated 14.09.2020 passed by the XLIII Additional City Civil and Sessions Judge, Bengaluru (CCH No.44) in OS No.132/2018, rejecting I.A.1 filed under Order 39 rule 1 and 2 of CPC, is affirmed. Under the circumstances, no order as to costs. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 2 Sl No.: 4