- 1 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 2510 OF 2018 (CPC) C/W WRIT PETITION NO. 12648 OF 2018 (GM-CPC) IN MFA No. 2510/2018: BETWEEN: 1. N. SUNDAR S/O. LATE SRI. M.NATESHA MUDALIAR, AGED ABOUT 52 YEARS, R/AT NO.168, SEPPINGS ROAD, BENGALURU-560 001. …APPELLANT (BY SRI. S.G. BHAGAVAN, ADVOCATE) AND: 1. N. NATESHA MURTHY S/O. LATE SRI. NATESH MUDALIAR, AGED ABOUT 63 YEARS, NO.3C004, ISRO APARTMENTS, DOMLUR, BENGALURU-560 071. 2. N. RAJASHEKARAN S/O. LATE SRI. M.NATESHA MUDALIAR, AGED ABOUT 53 YEARS, 168, SEPPINGS ROAD, BENGALURU-560 001. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 3. N. INDRANI D/O. LATE SRI. M.NATESHA MUDALIAR, AGED ABOUT 61 YEARS, 168, SEPPINGS ROAD, BENGALURU-560 001. 4. 4(a) N. SHANMUGAM S/O. LATE SRI. M.NATESHA MUDALIAR, AGED ABOUT 58 YEARS, NO. 10, HUTCHINS ROAD, FRAZER TOWN, BENGALURU-560 005. SINCE DECEASED BY HIS LRS SMT. ARCHANA W/O LATE N.SHANMUGAM AGED ABOUT 57 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. 4(b) S. KARTHIKAYAN S/O LATE N.SHANMUGAM AGED ABOUT 38 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. 4(c) S. ASHWINI D/O LATE N.SHANMUGAM AGED ABOUT 38 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. 4(d) S. KISHAN KUMAR W/O LATE N.SHANMUGAM AGED ABOUT 32 YEARS NO.10, HUTCHINS ROAD - 3 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 POTTERY TOWN BENGALURU-560 005. (AMENDED VIDE COURT ORDER 19.12.2024) …RESPONDENTS (BY SRI. N. NATESHA MURTHY, (PARTY-IN-PERSON) FOR R1; SRI HANUMANTHARAYAPPA K., ADVOCATE FOR R2 & R4; VIDE ORDER DATED 16.12.2024, NOTICE TO R3 HELD SUFFICIENT; SRI C. VIJAYA KUMAR, ADVOCATE FOR R4[a to d]) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 06.03.2018 PASSED IN I.A. NO.XII ON O.S.NO.15734/2003 ON THE FILE OF THE 4TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MYOHALL UNIT, BENGALURU, ALLOWING IA XII FILED UNDER ORDER 39 RULES 1 AND 2 R/W SECTION 151 OF CPC. IN WP NO. 12648/2018: BETWEEN: 1. N. SUNDAR S/O LATE SRI. M.NATESHA MUDALIAR AGED ABOUT 52 YEARS NO.168, SEPPINGS ROAD BENGALURU-560 001. ...PETITIONER (BY SRI. S.G.BHAGAVAN, ADVOCATE) AND: 1. N. NATESHA MURTHY S/O LATE SRI. NATESH MUDALIAR AGED ABOUT 63 YEARS, - 4 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 NO.3C004, ISRO APARTMENTS, DOMLUR, BENGALURU-560071. 2. N. RAJASHEKARAN S/O LATE SRI. M.NATESHA MUDALIAR AGED ABOUT 53 YEARS NO.168, SEPPINGS ROAD BENGALURU-560 001. 3. N. INDRANI D/O LATE SRI. M.NATESHA MUDALIAR AGED ABOUT 61 YEARS NO.168, SEPPINGS ROAD BENGALURU-560 001. 4. 4(a) N. SHANMUGAM S/O LATE SRI. M. NATESHA MUDALIAR AGED ABOUT 58 YEARS, NO.10, HUTCHINS ROAD FRAZER TOWN BENGALURU-560 005 SINCE DECEASED BY HIS LRS SMT. ARCHANA W/O LATE N.SHANMUGAM AGED ABOUT 57 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. 4(b) S. KARTHIKAYAN S/O LATE N.SHANMUGAM AGED ABOUT 38 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. 4(c) S. ASHWINI D/O LATE N.SHANMUGAM AGED ABOUT 38 YEARS NO.10, HUTCHINS ROAD - 5 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 POTTERY TOWN BENGALURU-560 005. 4(d) S. KISHAN KUMAR W/O LATE N.SHANMUGAM AGED ABOUT 32 YEARS NO.10, HUTCHINS ROAD POTTERY TOWN BENGALURU-560 005. (AMENDED VIDE COURT ORDER 19.12.2024) ...RESPONDENTS (BY SRI. VIVEKANANDA, ADVOCATE FOR R1; SRI. K. HANUMANTHARAYAPPA, ADVOCATE FOR R3 AND LRS OF R4; SRI. P. DHANANJAYA, ADVOCATE FOR R2 ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 06.03.2018 PASSED BY THE COURT OF THE IV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL UNIT, BENGALURU [CCH-21] ON I.A.NO.XIII FILED UNDER ORDER 20 RULE 12 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, IN O.S.NO.15734 OF 2003 AND DIRECTING THE PETITIONER TO "DEPOSIT THE RENT OF RS.1,09,80,000/- FOR THE LAST 17 YEARS WITHIN THREE MONTHS FROM THE DATE OF THIS ORDER AMOUNTING TO RS.1,09,80,000/- AS PER ANNEXURE-E. THIS MFA AND WRIT PETITION COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH JUDGMENT Heard learned counsel for the appellant in M.F.A.No.2510/2018 and learned counsel for the petitioner in W.P.No.12648/2018 and learned counsel for the respondents in both the matters. 2. M.F.A.No.2510/2018 is filed against the order passed by the Trial Court on I.A.No.XII, wherein the Trial Court has passed a restraint order against the appellant restraining him from collecting rent from the suit schedule property, until appointment of a receiver to receive rents. W.P.No.2510/2018 is filed against the order passed on I.A.No.XIII allowing the application directing the petitioner to deposit the rent of Rs.1,09,80,000/- for the last 17 years within three months from the date of this order. 3. The factual matrix of the case of the plaintiffs/respondents, who are the sons of Late Natesh Mudaliyar is that they have sought for the relief of partition claiming their respective share as mutually agreed upon the plaintiffs and defendants commensurate with the nature of the - 7 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 suit. While seeking such relief, mentioned in paragraph Nos.3 and 4 of the plaint with regard to ‘A’ and ‘B’ schedule properties which have been morefully described in the schedule. It is also contended that they mutually agreed to share the property among themselves amicably and to arrive at a family settlement without any kind of misunderstanding among themselves and to avoid expensive litigations. The plaintiffs have obtained consent to take schedule ‘A’ property and the defendants have decided to take schedule ‘B’ property and mutual consent of plaintiffs and defendants are accorded herein and have no objection whatsoever to have the same and become absolute owners of schedule ‘A’ and schedule ‘B’ properties accordingly. In view of these circumstances, the plaintiffs are now constrained to bring the suit for partition and separate possession and to realize their share of schedule ‘A’ property and to give the defendants in settlement of schedule ‘B’ property herein which is their ancestral property. 4. When such relief is sought in the plaint, inter alia they also sought for the relief of temporary injunction in terms of I.A.No.XII for a restraint order to restrain the appellant herein from collecting rent and also to deposit the rent in the - 8 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 Court. Learned counsel appearing for the appellant would contend that the Trial Court committed an error in passing such an order entraining the application I.A.No.XII and ought not to have passed a restraint order when the suit is filed for the relief of partition. Learned counsel also would vehemently contend that such an order ought not to have been passed, when no application is filed before the Trial Court and till the appointment of receiver, the Trial Court ought not to have passed such an order. 5. Per contra, the respondent No.1, who is party-in- person in M.F.A.No.2510/2018 would contend that receiver application is pending before the Trial Court and the same is not yet taken up for consideration and the same pending before the Trial Court. He also would contend that there is no need to seek for permanent injunction in a suit filed for partition and only an intermediate arrangement is made and having considered the grounds urged in the application, the Trial Court passed a restraint order. 6. Learned counsel for respondent No.1 in W.P.No.12648/2018 would vehemently contend that writ - 9 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 petition is filed against the order passed on I.A.No.XIII, wherein a direction was given to deposit the rent and the petitioner also not denies the fact that he is collecting the rent and also not deposited the said amount. Hence, when the suit is filed for partition, the parties are entitled for the relief of partition by metes and bounds. Therefore, well reasoned order is passed and this Court cannot exercise writ jurisdiction and quash the order on I.A.No.XIII. 7. Learned counsel for the respondent No.2 in M.F.A.No.2510/2018 would vehemently contend that in a suit filed for the relief of permanent injunction, inter alia sought for the relief of partition. Learned counsel would contend that there is no dispute with regard to the fact that the appellant was collecting rent and he is enjoying the fruits of the property without sharing the same and there was internal arrangement between the parties to avoid litigation, but consequent upon conduct of the appellant, the parties are made to approach the Court. Hence, learned counsel would contend that appellant cannot find fault with the order passed by the Trial Court giving such a direction and restraint order has been passed. - 10 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 8. Learned counsel for the legal representatives of respondent No.4 in his argument would vehemently contend that at each and every stage, the appellant is coming in the way of disposal of the suit and earlier also filed Miscellaneous Petition No.552/2014 invoking Section 24 CPC to transfer the suit and the same was dismissed with exemplary cost of Rs.20,000/- and it is categorically observed that this appellant is coming in the way of disposal of the suit. Learned counsel also would vehemently contend that suit was filed in 2003 and till date, the same is not disposed of and even with regard to the conduct of the appellant is concerned, an observation is made while dismissing Miscellaneous Petition No.552/2014. The respondent No.1, party-in-person in his argument brought to notice of this Court that earlier dispute was disposed in civil revision petition when application was filed under Order VII Rule 11(a) CPC. In the said petition, this Court also made an observation that suit was filed in 2003 and application was filed in 2018 and no doubt, that application can be filed before disposal of the suit, but also taken note of the conduct of the appellant and also observation is made that the affidavit filed in support of an application under Order VII Rule 11(a) CPC is - 11 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 silent about the grounds which have been urged before this Court and nothing is stated in the affidavit with regard to the new contention except stating that an affidavit under Order VII Rule 1(e) CPC mandates that the plaint shall contain the facts constituting the cause of action when it arose. It is also contended that the suit was filed in 2003 and the present application is filed in 2018 i.e., after lapse of 16 years and in the beginning he has not taken any such plea and the Court has to look into only the plaint averments and not the defence of the defendants while considering the application filed under Order VII Rule 11 CPC. 9. Having heard learned counsel for the appellant, learned counsel for the petitioner and learned counsel for the respondents in both the matters, the points that would arise for consideration of this Court are: (i) Whether the Trial Court committed an error in allowing I.A.No.XII passing restraint order against the appellant for collection of rent? (ii) Whether the Trial Court committed an error in allowing I.A.No.XIII, wherein direction is given to deposit the rent before the Trial - 12 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 Court within a period of three months and whether it requires interference of this Court? (iii) What order? Point Nos.(i) and (ii) 10. Having heard both the learned counsel for the appellant and learned counsel for the petitioner as well as the learned counsel for the respondents, it is not in dispute that suit is filed for the relief of partition and in the suit, it is specifically pleaded with regard to ‘A’ schedule and ‘B’ schedule properties in paragraph Nos.3 and 4 of the plaint. Apart from that, there are several pleadings in the plaint with regard to the fact that the parties have mutually agreed to take their respective schedule properties. It has to be noted that there is no dispute with regard to the relationship between the parties and also no dispute with regard to the properties i.e., ‘A’ and ‘B’ schedules are concerned. The main contention of the learned counsel for the appellant is that in the said suit, no relief is sought for permanent injunction, when such relief is not sought, the question of granting such interim order does not arise. The said contention of the learned counsel for the appellant cannot be accepted and in a suit for partition, the partition should be metes and bounds. When such being the - 13 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 case, a restraint order can be passed in the interest of parties, who seek relief before the Court. Hence, the contention cannot be accepted. 11. The other contention of the learned counsel for the appellant is that no application is filed before the Trial Court for appointment of receiver and in the absence of such application, the Trial Court ought not to have passed such a restraint order, till appointment of the receiver. The party-in-person i.e., respondent No.1 submits that an application is filed and the same is pending consideration. It has to be noted that when an order has been passed to restrain the appellant from collecting the rent and it is the case of the parties also that the appellant is collecting the rent and the appellant is also not disputing the fact that he collecting the rent and whether such application is filed or not is immaterial and the order passed by the Trial Court is in the interest of the parties or otherwise, the party, who succeeds in the partition will not get the fruits of the decree, if rents are collected. Though no such application is filed before the Trial Court, the appellant cannot find fault with the same and the said order is passed to safeguard the interest - 14 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 of the parties. Hence, the said contention also cannot be accepted. 12. Learned counsel for the respondents also contend that the appellant is also not disputing the fact that he is collecting the rent. Learned counsel appearing for the appellant also in his argument not disputed the same and he meticulously submits that the dispute is interse between the brothers and if properties are sold by mutual consent and settlement is arrived between them, there will be an end to the litigation and such submission is made in 2025 and the appeal and writ petition is filed long back in the year 2018, as against the order passed by the Trial Court. From 2018 to 2025, no such effort was put in to settle the issue, though it is interse between the brothers, but when the matter is taken up for consideration, even though the matters were heard in part earlier, said submission was not made and hence, the same cannot be accepted. Even if such attempt is made during the pendency of the suit also, this Court while considering the civil revision petition, even directed the Trial Court to dispose of the matter within six months. The Court has to take note of the pendency of the matter and the suit is more than two decades old. - 15 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 13. The counsel appearing for the respondent No.4 brought to the notice of this Court that miscellaneous petition also filed was also dismissed with the cost of Rs.20,000/- and also Court has to take note of conduct of the appellant in seeking such a relief and already filed an application under Order 7 Rule 11 of CPC after 16 years and also filed the petition before the Trial Court for transfer of the suit also and Court has to take note of such conduct and the appellant is collecting the rent and enjoying the fruits of the property without giving any share to the respondents and having taken note of all these factors into consideration, the Trial Court passed an order not to collect the rent as well as whatever rent he has collected has to be deposited before the Court within the time frame. When such orders are passed, I do not find any error committed by the Trial Court in passing such a restraint order not to collect rent and also directing the appellant to deposit the rent he has collected within the time bound period and the said order is passed only in the interest of the parties of the suit, since suit is filed for the relief of partition. The appellant also not dispute the fact that property belongs to their family, but only contention is that it can be sorted out among themselves, but - 16 - NC: 2025:KHC:2952 MFA No. 2510 of 2018 C/W WP No. 12648 of 2018 no such efforts are made from the year 2003 till 2025. Hence no grounds are made out to set-aside the order passed on I.A.No.XII and I.A.No.XIII. Hence, there is no merit in the appeal as well as in the writ petition. Point No.(iii) 14. In view of the discussion made above, I pass the following: ORDER i) The M.F.A.No.2510/2018 and W.P.No.12648/2018 filed against the order on I.A.No.XII and I.A.No.XIII respectively are dismissed. Sd/- (H.P.SANDESH) JUDGE ST, RHS List No.: 1 Sl No.: 36