- 1 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5447/2025 (CPC) C/W. MISCELLANEOUS FIRST APPEAL NO.4871/2025 IN MFA NO. 5447/2025 BETWEEN: 1. SRI RIYAZ PASHA S/O. ANSAR PASHA, AGED ABOUT 45 YEARS, RESIDING AT NO.7/2-1, SOUTH CROSS STREET, NEELASANDRA, BANGALORE SOUTH–560047. 2. SRI MOHAMMED ZABIULLAH, S/O. MOHAMMED SHAFIQULLAH, AGED ABOUT 42 YEARS, RESIDING AT 4TH CROSS, BHIMANNA LAYOUT, R. T. NAGAR POST, KAVALBYRASANDRA, BANGALORE-560032. 3. SRI MAHABOOB PASHA S/O. S. ABDUL AZEEZ, AGED ABOUT 50 YEARS, RESIDING AT NO.14/1, 5TH MAIN, 2ND CROSS, VASANTHAPPA BLOCK, GANGANAGAR, R.T. NAGAR POST, BANGALORE-560032. …APPELLANTS (BY SRI G.S.VENKAT SUBBARAO, ADVOCATE.) AND: 1. SRI BAMDEV NAYAK, S/O. LATE BAHADUR NAYAK, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 AGED ABOUT 69 YEARS, REPRESENTED BY HIS COURT GUARDIAN SRI MANOJH KOOMAR NAYAK TO BAMDEV NAYAK. 2. SRI MANOHAR NAYAK, S/O. BAMDEV NAYAK, AGED ABOUT 35 YEARS, RESPONDENT NO.1 & 2 RESIDING AT FLAT NO.321, NEELADRI MAHAL APARTMENTS II, BLOCK E, NO.45/5, NANDIDURGA ROAD, JAYAMAHAL EXTENSION, BANGALORE-560046. …RESPONDENTS (BY SRI B. N. PRAKASH, ADV. FOR R2; SRI KRISHNA MURTHY K. R., ADVOCATE FOR APPLICANT IN I.A.NO.3/2025) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO CALL FOR THE RECORDS IN O.S.NO.1237/2025 FROM THE COURT OF III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 13.06.2025 PASSED BY THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, IN O.S.NO.1237/2025 ON IA-II, FILED UNDER ORDER XXXIX RULES 1 & 2 OF CPC AND ETC.,. IN MFA NO.4871/2025 BETWEEN: SRI MANOHAR NAYAK S/O. BAMDEV NAYAK, AGED 35 YEARS, R/AT FLAT NO.321, NEELADRI MAHAL APARTMENTS II, BLOCK E, NO.45/5, NANDIDURGA ROAD, JAYAMAHAL EXTENSION, BENGALURU-560046. - 3 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 REPRESENTED BY HIS GPA HOLDER MR. MANOJH KOOMAR NAYAK. ...APPELLANT (BY SRI KRISHNAMURTHY K.R., ADVOCATE.) AND: 1. SRI RIYAZ PASHA S/O. ANSAR PASHA, AGED ABOUT 45 YEARS, R/AT NO.7/2-1, SOUTH CROSS STREET, NEELASANDRA, BENGALURU-560047. 2. SRI MOHAMMED ZABIULLAH, S/O. MOHAMMED SHAFIQULLAH, AGED ABOUT 42 YEARS, R/AT: 4TH CROSS, BHIMANNA LAYOUT, R. T. NAGARA POST, KAVALBYRASANDRA, BENGALURU-560032. 3. SRI MAHABOOB PASHA, S/O. SRI S. ABDUL AZEEZ, AGED ABOUT 50 YEARS, R/AT NO.14/1, 5TH MAIN, 2ND CROSS, VASANTHAPPA BLOCK, GANGANAGAR, R. T. NAGAR POST, BENGALURU-560032. 4. SRI BAMDEV NAYAK, S/O. LATE BAHADUR NAYAK, AGED ABOUT 70 YEARS, R/AT FLAT NO.321, NEELADRI MAHAL APARTMENTS III, BLOCK E, NO.45/5, NANDIDURGA ROAD, JAYAMAHAL EXTN., BENGALURU-560046. ...RESPONDENTS (BY SRI G. S. VENKAT SUBBARAO, ADV. FOR R1 TO R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) READ WITH SECTION 104 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.1237/2025, PENDING ON THE - 4 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 FILE OF III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-3) AT BENGALURU AND SET ASIDE THE ORDER DATED 13TH JUNE 2025, PASSED IN O.S.NO.1237/2025 ON THE FILE OF III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AND DISMISS THE I.A.NO.1 FILED THE PLAINTIFFS IN O.S.NO.1237/2025 UNDER ORDER XXXIX RULE 1 & 2 OF CPC, AND ETC. THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) MFA No.5447/2025 is filed by the plaintiffs being aggrieved by the order passed on I.A.No.2 filed under Order XXXIX Rule 1 and 2 read with Section 151 of Civil Procedure Code, 1908 (for short, ‘CPC’), dismissing the application and not to put up further construction and MFA No.4871/2025 is filed by defendant No.2 being aggrieved by the order passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, thereby allowing the application restraining the defendants from making alienation of flats, in O.S.No.1237/2025, dated - 5 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 13.06.2025, on the file of III Additional City Civil and Sessions Judge (CCH-3), at Bengaluru. 2. The case of the plaintiffs in brief is that defendant No.1 is the owner of the suit schedule property and the plaintiffs have agreed to purchase the same from defendant No.1. Accordingly an agreement of sale was executed on 05.01.2018 for a total sale consideration of Rs.13,75,12,500/- and out of which, it is stated that the plaintiffs had paid an advance amount of eleven crore rupees to defendant No.1. But therafterwards defendant No.1 has not come forward to execute the sale deed. Therefore, the plaintiffs was constrained to file suit for specific performance of contract. 3. It is stated that defendant No.1 is in mentally incapacitated condition and therefore, defendant No.2 has filed the written statement he being son of defendant No.1 by denying all the averments. Defendant No.2 denied the plaint averments and more particularly denied payment of advance amount of eleven crore rupees through cash as - 6 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 no prudent man can accept such huge amount by cash. Therefore, he has totally denied the case of the plaintiffs. 4. The plaintiffs filed suit for specific performance of contract and I.A.No.1 seeking ad-interim order of temporary injunction not to make alienation of the suit property and I.A.No.2 not to put up further construction. The trial Court has dismissed I.A.No.2 on the reason that the defendants have entered into a joint development agreement with the developer and developer had spent huge amount for construction and at this stage if ad-interim order is granted, then the defendant developer would be put into loss. Therefore, dismissed I.A.No.2. 5. The trial Court has allowed I.A.No.1 on the reason that the plaintiffs have produced some documents to show that there are some receipts, which show that defendant No.1 had received above stated amount. Therefore, if property is alienated to third parties, then it will lead to multiplicity of proceedings. Therefore, the findings that the plaintiffs have made out a prima facie - 7 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 case and if alienation is made, it would cause irreparable loss and injury to the plaintiffs. Therefore, allowed I.A.No.1. 6. Learned counsel for plaintiffs submitted that defendant No.1 is owner and has received advance sale consideration amount of eleven crore rupees from the plaintiffs and also handed over the original documents to the plaintiffs. Therefore, the plaintiffs have made out prima facie case and further submitted that if the defendants alienate the suit property during the pendency of the suit, the plaintiffs will be put to loss and injury and if decree is passed, it would be difficult to recover the said amount. Therefore, justified the order passed on I.A.No.1. 7. It is also submitted that, during pendency of the suit, the defendants have made construction altering the nature of property and therefore prays to make interference with the order passed on I.A.No.2. - 8 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 8. Learned counsel for plaintiffs has relied upon the following judgments in support of his case. i. Ramakant Ambala Choksi Vs Harish Ambala Choksi and others1. ii. V M Gampa and another Vs Shivasharanappa2 iii. Duwuri Rami Reddi Vs Duvvudu Papi Reddi and others3 iv. Kasturibai and others Vs Anguri Chaudhary4 9. On the other hand, learned counsel for defendant No.2 submitted that the plaint averments regarding execution of agreement of sale is created one as it is unreliable that plaintiffs have paid huge amount of eleven crore rupees to defendant No.1 in cash. Therefore, the plaintiffs have not made a prima facie case. Further learned counsel for defendant No.2 argued with regard to plaint averments that defendant No.2 has handed over all 1 2024 SCC OnLine SC 3538 2 ILR 1999 KAR 3430 3 1962 SCC OnLine AP 15 4 (2003) 3 SCC 225 - 9 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 the original documents to the plaintiffs is not reliable, as the said documents were mortgaged with the bank. Therefore, there is no question of handing over the documents to the plaintiffs. 10. Further submitted that, as per the plaintiffs, the alleged agreement of sale is executed in the year 2018, but the suit is filed in the year 2025. Hence, as per Article 54 of the Limitation Act, the suit is barred by limitation, which constitute the fact that the plaintiffs do not have prima facie case. Thus, submitted that there is no question of considering balance of convenience and the plaintiffs suffering from loss or injury. 11. Further submitted that, the plaintiffs have not explained the delay. Therefore, when the suit is prima facie barred by limitation and there is no explanation for the delay in filing the suit, it amounts to the plaintiffs not having made out a prima facie case so as to seek the discretionary relief of injunction. Hence, it is submitted that the plaintiffs have not made out any prima facie case. - 10 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 Accordingly, the defendants pray that MFA No.4871/2025 be allowed and MFA No.5447/2025 be dismissed. 12. Learned counsel for defendants has relied upon the following judgments in support of his case. i. Kashi Math Samsthan and another Vs Shrimad Sudhindra Thirtha Swamy and another5 ii. Mandali Ranganna and others Vs T Ramachandra and others6 iii. Ambalal Sarabhai Enterprise Limited Vs K S Infraspace LLP Limited and another7 iv. ECE Industries Limited Vs SP Real Estate Developers Private Limited and another8 v. Correspondence, RBANMS Educational Institution Vs Gunashekar and another9 vi. Ram Chandra Arya Vs Man Singh and another10 5 (2010) 1 SCC 689 6 (2008) 11 SCC 1 7 (2020) 5 SCC 410 8 (2009) 12 SCC 776 9 2025 SCC OnLine SC 793 10 1967 SCC OnLine SC 339 - 11 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 13. Having heard arguments from both sides, the following points would arise for consideration. i. Whether, under the facts and circumstances involved in the case, the plaintiffs made out a prima facie case to restrain the defendants from making further construction by granting an order of temporary injunction? ii. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that balance of convenience lies on their behalf to grant an order of temporary injunction by restraining the defendants from making further construction? iii. Whether, under the facts and circumstances involved in the case, plaintiffs prove that they would be put irreparable loss or injury in case if temporary injunction is not granted on their behalf by restraining the defendants from making further construction? iv. Whether, under the facts and circumstances involved in the case, the plaintiffs made out a prima facie case to restrain the defendants from alienating the suit schedule property by granting an order of temporary injunction? - 12 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 v. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that balance of convenience lies on their behalf to grant an order of temporary injunction by restraining the defendants not to alienate the suit schedule property? vi. Whether, under the facts and circumstances involved in the case, plaintiffs prove that they would be put irreparable loss or injury in case if temporary injunction is not granted on their behalf by restraining the defendants not to alienate the suit schedule property? vii Whether, the orders passed by the Trial Court on I.A.Nos.I and II require any interference from this Court? 14. The plaintiffs have filed a suit for specific performance. In the plaint, it is averred that defendant No.1 is the owner of the suit schedule property and that the plaintiffs entered into an agreement of sale for a total consideration of Rs.13,75,12,500/-, out of which the plaintiffs claims to have paid Rs.11,00,00,000/- in cash and obtained a receipt for the same. This fact is disputed by - 13 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 defendant No.2, who contends that such a huge amount could not have been paid in cash and that the alleged transaction violates the law prohibiting cash transactions exceeding Rs.2,00,000/-. Therefore, the case put forth by the plaintiffs is contended to be not believable. 15. During the course of arguments, this Court passed an order dated 19.12.2025 holding that defendant No.1 was mentally incapacitated. Consequently, the son of defendant No.1 was appointed as the legal guardian of defendant No.1. Accordingly, defendant No.1 is now represented by his son as legal guardian. 16. The Hon’ble Supreme Court in the case of Ramakant Ambalal Choksi Vs Harish Ambalal Choksi and others11, in paragraph Nos.35 & 36 has held as under: “35. Any order made in conscious violation of pleading and law is a perverse order. In Moffett 11 2024 SCC OnLine SC 3538 - 14 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 v. Gough, (1878) 1 LR 1r 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, 106 NW 814, 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. 36. The expression "perverse" has been defined by various dictionaries in the following manner: a. Oxford Advanced Learner's Dictionary of Current English, 6th Ed. 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 Edition Perverse-Deliberately departing from what is normal and reasonable. c. The New Oxford Dictionary of English-1998 Edition. 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 Edition) 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 Ed. 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.” - 15 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 17. The Hon’ble Supreme Court in the case of Ram Chnadra Arya Vs Man Singh and Another12, in paragraph No.3 has held as under: “3. As has been mentioned above, the suit was dismissed by the trial court and that decision has been upheld by the first and the second appellate courts on the ground that the decree against Ram Lal was a nullity and the sale held in execution of that decree was, therefore, void. It appears from the judgment of the High Court that, in that Court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of Order 32 Rule 15 of the Code of Civil Procedure. It has been found as a fact that Ram Lal was insane when Suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 of Order 32 of the Code of Civil Procedure, so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void”. 12 1967 SCC OnLine SC 339 - 16 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 18. Learned counsel for defendant Nos.1 and 2 submitted that in the suit it is stated that defendant No.1 was under coma, and therefore, the order of injunction passed is itself void ab initio and liable to be set aside. However, during the appeal proceedings, upon applications filed by both defendants under Order XXXII Rules 3 and 4 read with Section 151 of the CPC, a legal guardian has been appointed. Hence, at the appellate stage, defendant No.1 is represented by a legal guardian, and therefore, there is no apprehension that the order passed is void. 19. When a suit is filed for specific performance, three eventualities may arise: (i) the Trial Court may decree the suit in full by granting specific performance; or (ii) the suit may be decreed in part by directing refund of the earnest money; or (iii) the suit may be dismissed. 20. All these outcomes depend upon the evidence to be adduced before the Trial Court. Considering the facts of the present case, if the suit is not decreed in full and - 17 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 only refund of earnest money is granted, it is necessary to safeguard the interest of the plaintiffs. Therefore, following the principle laid down by the Hon’ble Supreme Court in the case of Mandali Ranganna and others vs. T. Ramachandra and others, as stated supra, it is necessary to direct the defendants to reserve certain flats without alienation till disposal of the suit. 21. It is submitted that photographs of the apartment produced before the Court indicate that construction is completed and no further construction remains. Therefore, the Trial Court dismissed I.A.No.2. The defendants contend that MFA No.5447/2025 has become infructuous. Though learned counsel for the plaintiffs does not object to the said submission, it is contended that if all the flats are sold out, it would be difficult for the plaintiffs to realize the amount allegedly paid in advance. Therefore, it is submitted that certain flats be reserved without alienation to safeguard the interest of the plaintiffs. - 18 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 22. Considering to safeguard the interest of the plaintiffs law laid down in the case of Mandali Ranganna and others vs. T. Ramachandra and others, as stated supra, the paragraphs Nos.26 and 27 are reads as follows. “26. Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions. 27. We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The trial court is requested to hear out and dispose of the suit as early as possible. If any third-party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. The respondents must also furnish sufficient security before the learned trial Judge within four weeks from the date which, for the time being, is assessed at rupees one crore.” 23. The plaintiffs claim to have paid Rs.11 crores in advance to defendant No.1, which is denied by the - 19 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 defendants. Whether such a huge amount was paid or not is a matter for trial. Though learned counsel for the defendants argued that such cash transactions more than Rs.2 lakhs are illegal, mere violation of such provisions does not automatically decide the merits of the case, for which separate proceedings may be initiated. 24. If all flats are alienated and subsequently the plaintiffs succeed, it would result in multiplicity of proceedings for recovery. Though the facts in Mandali Ranganna and others vs. T. Ramachandra and others, and in the present case are different, but spirit of order is followed directing the defendants to reserve certain flats without alienation would safeguard the interest of the plaintiffs. Accordingly, Point Nos.1 to 3 are answered in the negative and Point Nos.4 to 6 partly in the affirmative by directing the defendants to reserve five flats without making any alienation or encumbrance. - 20 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 25. Point No.7: In view of the above discussion, the order passed by the Trial Court on I.A.No.1 requires interference. Therefore, point No.7 is answered partly in the affirmative. 26. Hence I pass the following order; ORDER i. MFA No.5447/2025 is dismissed and MFA No.4871/2025 is allowed in part. ii. The impugned order dated 13.06.2025 passed by the III Additional City Civil and Sessions Judge, Bangalore in O.S.No.1237/2025 on I.A.No.II filed under order XXXIX rules 1 and 2 r/w Section 151 of CPC is hereby confirmed. iii. The impugned order dated 13.06.2025 passed by the III Additional City Civil and Sessions Judge, Bangalore in O.S.No.1237/2025 on I.A.No.I filed - 21 - HC-KAR NC: 2026:KHC:318 MFA No. 5447 of 2025 C/W MFA No. 4871 of 2025 under order XXXIX rules 1 and 2 of CPC is set aside. iv. Defendant No.2 shall file an affidavit before the Trial Court specifying the five flats reserved, and shall not alienate or encumber the said flats. The defendants are at liberty to alienate the remaining flats in accordance with law, subject to Section 52 of Transfer of Property Act. v. The Trial Court is directed to expedite the trial and dispose of the suit within a period of one year from the date of receipt of a certified copy of this order. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-Para Nos.1 to 10 ASN-Para Nos.11 to end CT-AN List No.: 19 Sl No.: 3