- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JUNE, 2026 BEFORE THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA MISCELLANEOUS FIRST APPEAL No.118/2026 (CPC) BETWEEN: SRI B. VENKATESHWARA REDDY, S/O B.C. VENKATASUBBA REDDY, AGED ABOUT 50 YEARS, RESIDING AT NO.446, 1ST FLOOR, 2ND MAIN, 3RD CROSS, 3RD STAGE, BEML LAYOUT, RAJARAJESHWARINAGAR, BENGALURU-560098. ...APPELLANT (BY SRI M.R. RAJAGOPAL, SENIOR COUNSEL FOR SRI THILAKRAJ S.V., ADVOCATE) AND: SRI N.B. GURUDEVA S/O LATE N.L. BYREGOWDA, AGED ABOUT 60 YEARS, RESIDING AT NO.4, 1ST FLOOR, FTI COLONY, NEAR WATER TANK, NANDINI LAYOUT, BENGALURU-560096. ...RESPONDENT (BY SRI H.N. VENKATESH, ADVOCATE FOR C/RESPONDENT) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 17.10.2025 PASSED ON I.A.NO.1 IN O.S.NO.1777/2024 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-40), DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC. Digitally signed by C K LATHA Location: High Court of Karnataka - 2 - THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30/04/2026, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA CAV JUDGMENT This miscellaneous first appeal is filed challenging the order dated 17.10.2025 passed on I.A.No.I in O.S.No.1777/2024 on the file of XXXIX Additional City Civil and Sessions Judge, Bengaluru (CCH-40) (‘Trial Court’ for short), whereby the application filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC, seeking temporary injunction came to be rejected. Brief Facts: 2. The case of the plaintiff is that, he purchased schedule ‘A’ and schedule ‘B’ properties bearing Site Nos.34 and 35 situated at Halagevaderahalli Village, Kengeri Hobli, Bengaluru South Taluk, under a registered sale deeds dated 01.02.2023 executed by GPA holders of Smt. Nirmala John. It is stated that the plaintiff traces title to the property through the original owner P.I. Joseph, thereafter through - 3 - Thangamma Joseph, who inturn executed a Will dated 01.03.1993 in favour of Smt. Nirmala John. It is submitted that the BBMP kathas have been transferred in his name and that sanctioned building plans and licences have also been obtained from BBMP for putting up construction over the suit schedule properties. It is stated that, when the plaintiff started preparation for construction, the defendant interfered with his peaceful possession, thereby constraining him to file suit O.S.No.1777/2024 seeking permanent injunction. Along with the suit, filed I.A.No.1 seeking temporary injunction. 3. The defendant contested the application. It is stated that the plaintiff has no title or possession over the suit schedule properties and the entire claim is founded on fabricated and concocted documents. It is stated that the defendant had already obtained a decree of permanent injunction in O.S.No.4508/2018 against the vendors of the plaintiff and therefore, the plaintiff, claiming through such vendors, cannot seek injunction against the defendant. According to the defendant, the properties claimed by the - 4 - plaintiff actually pertain to Site carved out of Survey No.290/2 and not Survey No.58 and the plaintiff is attempting to overlap and correlate different survey numbers and properties in order to knock off the defendant's property. It is stated that several litigations concerning nearby sites in Survey No.58 and Survey No.290/2 are pending and that injunction applications filed by similarly placed persons have already been rejected. 4. The Trial Court, upon consideration of the pleadings and documents, held that serious disputes exist regarding the identity and location of the properties claimed by the parties. The Trial Court observed that the defendant had already secured a decree of permanent injunction in O.S.No.4508/2018, against the vendors of the plaintiff and the said decree has attained finality. The Trial Court further observed that the appellant’s vendors themselves were restrained from interfering with the defendant's possession and therefore, the plaintiff, claiming through such vendors, failed to establish a prima facie case. The Trial Court also - 5 - held that the issue involves disputed questions relating to title, possession and survey identity, which require adjudication in a full-fledged trial and that at the interlocutory stage, the plaintiff has failed to establish the balance of convenience and irreparable injury. Accordingly, the Trial Court rejected I.A.No.I under Order XXXIX Rules 1 and 2 CPC. 5. Sri M.R. Rajagopal, learned senior counsel appearing on behalf of Sri Thilak Raj S.V., learned counsel for the appellant submits that the Trial Court committed a serious error in mechanically relying upon the judgment and decree passed in O.S.No.4508/2018 and the order passed in RFA proceedings, without properly examining the documents produced by the appellant. It is contended that the appellant has produced the registered sale deeds, katha certificates, sanctioned building plans, tax records, GPA documents and title flow documents establishing prima facie title and possession. Learned senior counsel further contends that the appellant was not a party to O.S.No.4508/2018 and the - 6 - properties involved therein are entirely different and pertain to Survey No.290/2, whereas the suit schedule properties are carved out of Survey No.58. Learned Senior counsel further submits that the Trial Court failed to consider that both survey numbers are distinct and separate, and that there are no findings exist in the earlier judgment that the said survey numbers relate to the same property. It is contended that the suit is one for bare injunction and that, at an interlocutory stage, it is not required to conclusively adjudicate title. Reliance is placed on the decision of the Apex Court in the case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and others1 (Ramakant Ambalal Choksi). It is submitted that the impugned order suffers from perversity and non-consideration of the material documents warranting interference by this Court. 6. Per contra, Sri Venkatesh, learned counsel for the caveator-respondent, supports the impugned order and contends that the appellant is claiming through the vendors 1 (2024) 11 SCC 351 - 7 - against whom a decree of permanent injunction is already operating in O.S. No.4508/2018. It is submitted that the appellant cannot claim better title than that of his vendors and that the decree passed against the vendors binds the person claiming under them. It is contended that the appellant is attempting to falsely correlate Survey No.58 with the converted lands in Survey No.290/2 by creating documents. It is submitted that the respondent has established possession over the converted sites in Survey No.290/2 and that similar claims made by other persons concerning Survey No.58 have already been failed before the competent Courts. It is submitted that the Trial Court has exercised its discretion judicially, having regard to the earlier decree, rival claims and the disputed identity of the properties and therefore, the Appellate Court ought not to interfere merely because another view was possible regarding the identity of the properties. 7. Reliance is placed on the decision of the Apex Court in the case of Wander Limited and another Vs. - 8 - Antox India Pvt. Ltd.2 (Wander Limited) and Prabhakara Adiga Vs. Gowri and others3 (Prabhakara Adiga) to contend that the appellate interference with discretionary orders under Order XXXIX Rules 1 and 2 CPC is limited, permissible only in cases of perversity or arbitrary exercise of discretion. 8. This Court has carefully considered the rival submissions and perused the material on record. The point that arises for consideration is: “Whether the appellant has made out grounds for interference with the discretionary power exercised by the Trial Court in rejecting I.A. No.I filed under Order XXXIX Rules 1 and 2 CPC?” 9. At the outset, it is necessary to observe that the present proceedings arise out of an interlocutory order refusing temporary injunction, and the scope of interference in an appeal under Order XLIII Rule 1 (r) CPC is limited. The Appellate Court, after the findings of the Trial Court are 2 1990 (Supp) SCC 727 3 (2017) 4 SCC 97 - 9 - recorded, has the advantage of appreciating the view taken by the Trial Judge and examining the correctness or otherwise thereof within the limited area available in appellate jurisdiction. If the Appellate Court itself decides the matter, which are required to be decided by the Trial Court after a full-fledged trial, the hierarchy of the Courts would lose its very purpose. The said principle has been specifically reiterated by the Apex Court in Ramakant Ambalal Choksi stated supra, while examining the contours of Appellate Jurisdiction under Order XLIII Rule 1 (r) CPC and it has been held at paragraph No.29 as under: “29. This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd. [(2023) 1 SCC 634] observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial Judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to - 10 - be decided by the trial court, there would be no necessity to have the hierarchy of courts.” 10. In the appeal arising out of an order granting or refusing temporary injunction, the Appellate Court will not interfere with the exercise of discretion by the Court of first instance and substitutes its own discretion, except where such discretion is shown to have been exercised arbitrarily, capriciously, perversely or where the Court has ignored the settled principles of law relating to regulating grant or refusal of interlocutory injunctions. The Appellate Court will not reassess the entire material and factual aspects as though it is deciding the suit itself, nor can it substitute its own discretion merely because another view is possible. 11. The Apex Court, in the case of Wander Limited, has held at paragraph No.14 as under: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except - 11 - where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the - 12 - application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle.” 12. The Apex Court held that appellate interference with discretionary powers is permissible only when the discretion exercised by the Trial Court is arbitrary, capricious, perverse or contrary to the settled principles. The said principle has also been reiterated in the recent judgment in Ramakant Ambalal Choksi, which is stated supra, wherein it has held at paragraph Nos.19, 20, 21 and 22 as under: “Appellate jurisdiction under Order 43 CPC 19. Order 43 CPC specifies the orders against which an appeal lies. Sub-rule (r) of Rule 1 of the said order provides that an appeal would lie against an order made under Rules 1, 2, 2-A, 4 and 10 of Order 39 CPC, respectively. 20. The law in relation to the scope of an appeal against grant or non-grant of interim injunction was laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727] Antox brought an - 13 - action of passing off against Wander with respect to the mark Cal-De-Ce. The trial court declined Antox's plea for an interim injunction, however, on appeal the High Court reversed the findings of the trial Judge. This Court, upon due consideration of the matter, took notice of two egregious errors said to have been committed by the High Court: (a) First, as regards the scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order; and (b) Secondly, the weakness in ratiocination as to the quality of Antox's alleged user of the trade mark on which the passing off action is founded. 21. With regard to (a), this Court held thus: (Wander case, SCC p. 733, para 14) “14. … In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. … The appellate court will not reassess the material and - 14 - seek to reach a conclusion different from the one reached by the court below.… If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.” 22. This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) (P) Ltd. v. Pothan Joseph [1960 SCC OnLine SC 62], wherein it was held thus: (Printers case, SCC OnLine SC para 9) “9. … as has been observed by Viscount Simon LC in Charles Osenton & Co. v. Johnston, the law as to reversal by a court of appeal of an order made by a Judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case.”” 13. The Apex Court has held that appellate jurisdiction under Order XLIII Rule 1 (r) CPC is confined to examining whether the discretion exercised by the Trial Court is legally sustainable and not to undertaking a fresh adjudication of the entire controversy. The Apex Court also considered the - 15 - expression ‘perverse’ and held at paragraph Nos.34, 35 and 36 as under: “Meaning of the expression “perverse” 34. Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR Ir 331] , the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [127 Wis 47 (1906)], the Court defined “perverse” as “turned the wrong way”; not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 35. The expression “perverse” has been defined by various dictionaries in the following manner: (a) Oxford Advanced Learner's Dictionary of Current English, 6th Edn. Perverse — Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. (b) Longman Dictionary of Contemporary English — International Edn. Perverse — Deliberately departing from what is normal and reasonable. - 16 - (c) The New Oxford Dictionary of English — 1998 Edn. Perverse — Law (of a verdict) against the weight of evidence or the direction of the Judge on a point of law. (d) New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse — Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. (e) Stroud's Judicial Dictionary of Words & Phrases, 4th Edn. Perverse — A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 36. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See Damodar Lal v. Sohan Devi [(2016) 3 SCC 78)” - 17 - 14. The Apex Court held that a wrong finding must stem from a complete misreading of evidence or must be based only on conjectures and surmises. The test of perversity, is whether the conclusion drawn by the Court below is a possible conclusion on the material available on record. If such a conclusion is possible, there is no perversity. Mere inadequacy of evidence or a different appreciation of the evidence does not amount to perversity. 15. Applying the above principles to the present facts, the Trial Court has considered the material placed by both the parties, including the sale deeds produced by the plaintiff, katha documents, and sanctioned plan, as well as the defendant's reliance on earlier decree in O.S.No.4508/2018 and a serious dispute regarding the identity of the properties in Survey No.58 and Survey No.290/2. The Trial Court has thereafter recorded a finding that the plaintiff has failed to establish a prima facie case, balance of convenience and irreparable injury. The earlier decree relied upon by the defendant cannot be brushed aside - 18 - at this stage, particularly when the appellant admittedly claims through vendors against whom a decree of injunction is operating. The Apex Court in the case of Prabhakara Adiga has observed that the decrees relating to property rights and injunction binds persons claiming through judgment debtors and such decrees survive against the successors-in-interest and the maxim action personalis moritur cum persona applies and has held at paragraph No.25 as under: “25. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment- debtor. It is apparent from Section 50 CPC that when a judgment-debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim “actio - 19 - personalis moritur cum persona” is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree- holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment- debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 CPC, such a decree can be executed against legal representatives.” 16. The grant of injunction is an equitable relief when substantial fraud exists regarding title and identity of the property and where rival claims require detailed evidence, the Court has to exercise caution before granting injunction, which may virtually amount to recognition of possession in favour of one party pending trial. This Court is of the considered view that no ground for interference with the - 20 - discretionary order passed by the Trial Court is made out by the appellant-plaintiff and the impugned order is neither arbitrary nor capricious nor perverse and the same does not warrant any interference accordingly. The point framed for consideration is answered and this Court pass the following: ORDER i. The miscellaneous first appeal is hereby dismissed. ii. The impugned order dated 17.10.2025 passed on I.A. No.I in O.S. No.1777/2024 on the file of XXXIX Additional City Civil and Sessions Judge, Bengaluru (CCH-40) is hereby confirmed. iii. It is made clear that the observation made herein is a prima facie in nature and shall not influence the Trial Court while deciding the suit on merits. Sd/- _____________________ JUSTICE K.S. HEMALEKHA MBM