ACQUA BOREWELL PVT. LTD.versusSWAYAM PRABHA & OTHERS

408                      [2021]REPORTS
               SUPREME COURT    7 S.C.R. 408                [2021] 7 S.C.R.


A                      ACQUA BOREWELL PVT. LTD.
                                        v.
                       SWAYAM PRABHA & OTHERS
                      (Civil Appeal Nos. 6779-6780 of 2021)
B                            NOVEMBER 17, 2021
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Injunction: Grant of – Impleading of necessary parties –
      Requirement of – On facts, the High Court granted injunction for
      some of the suit properties, in which the appellants-third parties
C
      have right, title or interest on the basis of the development agreement
      – Appellants neither impleaded nor given an opportunity of being
      heard – Application to implead the appellants as necessary and
      proper parties not disposed of – Sustainability of – Held: Not
      sustainable – Before granting any injunction with respect to the
D     properties in which the appellants-third parties are claiming right,
      title or interest on the basis of the development agreements or
      otherwise they ought to have been given an opportunity of being
      heard – No injunction could have been granted against them without
      impleading them as party-defendants in the suit and thereafter
      without giving them an opportunity of being heard – Trial court
E
      rightly rejected the injunction application holding that some of the
      properties were evidently owned by the firms/trusts/companies which
      were not made parties to the suit – Thus, the order passed by the
      High Court granting injunction with respect to 1/7th share in the
      total plaint schedule properties is set aside – Necessary parties –
F     Impleadment.
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.6779-
      6780 of 2021.
           From the Judgment and Order dated 22.09.2020 of the High Court
      of Karnataka at Bengaluru in M.F.A. No.1638 of 2020 and M.F.A.
G     No.1849 of 2020 (CPC).
            With
            Civil Appeal Nos. 6787-6788, 6789-6790, 6791-6792, 6793-6794,
      6781-6782, 6785-6786 and 6783-6784 of 2021.
H
                                       408
   ACQUA BOREWELL PVT. LTD. v. SWAYAM PRABHA &                                    409
                    OTHERS

       K. V. Viswanathan, Sr. Adv., Senthil Jagadeesan, Ms. Swathi                A
Sukumar, Ms. Mrinal Kanwar, Ms. Sonakshi Malhan, Sajal Jain, Advs.
for the Appellant.
      Saurabh Kansal, Ms. Ashu Chaudhary, Deepak Goel, Ajesh
Shankar Kumar, Balaji Srinivasan, Ms. Pallavi Sengupta, Prateek Yadav,
Ms. Aakriti Priya, Mohammed Shahrukh, Mrs. Tanuj Bagga Sharma,                    B
Advs. for the Respondents.
       The Judgment of the Court was delivered by
       M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned common             C
judgment and order passed by the High Court of Karnataka at Bengaluru
dated 22.09.2020 in M.F.A. No. 1638/2020 and M.F.A. No. 1849/2020
(CPC), by which the High Court has allowed the aforesaid appeals in
part and has modified the interim injunction granted by the learned XIV
Additional City Civil Judge, Bengaluru, CCH 28 (hereinafter referred to
as the learned ‘trial Court’) passed in IA Nos. 1, 18, 22 and 24 in O.S.          D
No. 4709/2019 and restricted the injunction against alienation to the extent
of 1/7th share in the total plaint schedule properties till the disposal of the
case, the third parties have preferred the present appeals.
       2. That respondent nos. 1, 22, 23 and 24 herein have instituted
O.S. No. 4709/2019 before the learned trial Court seeking a declaration           E
that the plaintiffs and defendants 18 & 19 (respondent nos. 19 & 20
herein) are entitled to their mother Laxmi Devi’s 1/7th share in the total
plaint schedule properties and consequently prayed for a decree for
partition and separate possession. They have also further sought a
declaration that 2015 Settlement Deed is void ab-initio.                          F
       2.1 At this stage, it is required to be noted that the plaint schedule
properties consist of number of properties ranging from A1 to A40 in the
said suit. The original plaintiffs filed IA No. 1 in OS No. 4709/2019
seeking ex-parte ad-interim injunction qua the suit schedule properties.
The learned trial Court initially granted ex-parte injunction restraining
                                                                                  G
the defendants in the suit from alienating and creating any charge and
third party interest upon the suit schedule properties to the extent of the
plaintiffs share, till the next date of hearing of the interim injunction
application. That by order dated 26.09.2019, the learned trial Court
dismissed IA No.1 in OS No. 4709/2019 and refused to grant an interim
injunction in favour of the plaintiffs, inter alia, holding that some of the      H
410             SUPREME COURT REPORTS                             [2021] 7 S.C.R.


A     suit schedule properties are evidently owned by the firms/trusts/
      companies which entities have not been made parties to the suit.
             2.2 Aggrieved by the order passed by the learned trial Court refusing
      to grant injunction, one of the plaintiffs in O.S. No. 4709/2019 preferred
      M.F.A. No. 1638/2020 before the High Court. The other plaintiffs also
B     filed a separate appeal being M.F.A. No. 1849/2020 (CPC). By the
      impugned common judgment and order, the High Court has partly allowed
      the said appeals and has modified the order passed by the learned trial
      Court in the interim injunction application and has directed to issue restraint
      order qua the defendants against the alienation to the extent of 1/7th
      share in the total plaint schedule properties till disposal of the case. The
C     High Court has also passed an order insofar as the activity such as
      construction, improvements, whether fresh or modification, are conducted
      over the schedule properties, the party doing so shall be doing it at his
      risk and shall not be entitled to claim equity at the end.
             3. Feeling aggrieved and dissatisfied with the impugned common
D     judgment and order passed by the High Court granting injunction to the
      extent of 1/7th share in the total plaint schedule properties, the third
      parties to the suit have preferred the present appeals.
              3.1 It is the case on behalf of the appellants that some of the suit
      properties for which the injunction has been granted, the appellants have
E     right, title or interest on the basis of the development agreement/s and/or
      otherwise and though they are directly affected by the interim injunction
      granted by the High Court, they are not made parties to the suit and the
      injunction has been granted with respect to properties in which the
      appellants herein claim right, title or interest without hearing them.
F             3.2 It is also the case on behalf of the appellants that as such the
      plaintiffs have filed the application/applications to implead the appellants
      herein as party to the suit contending inter alia, that the appellants are
      the necessary and proper parties. It is submitted that without disposing
      of the said application/applications to implead the appellants as necessary
G     and proper parties, the High Court ought not to have granted injunction
      with respect to properties in which the appellants claim right, title or
      interest.
             3.3 It is submitted that the High Court has failed to appreciate
      that the learned trial Court passed a reasoned and speaking order while
      refusing to grant injunction. It is submitted that the learned trial Court
H
   ACQUA BOREWELL PVT. LTD. v. SWAYAM PRABHA &                                   411
              OTHERS [M. R. SHAH, J.]

specifically observed while refusing to grant injunction that some of the        A
properties are standing in the name of the firms/trusts/companies and
admittedly the said entities have not been made parties to the suit. It is
submitted that despite the above, the High Court has granted injunction
with respect to properties in which the appellants claim right, title or
interest, without impleading the appellants and without giving them an           B
opportunity of being heard.
      4. Learned counsel appearing on behalf of the original plaintiffs/
original appellants before the High Court have supported the impugned
common judgment and order passed by the High Court.
     5. We have heard Shri K.V. Vishwanathan, learned Senior                     C
Advocate appearing for the appellants and Shri Saurabh Kansal, learned
Advocate appearing on behalf of the contesting respondent nos. 1,20 &
23.
       5.1 At the outset, it is required to be noted that against the suit
schedule properties A1 to A40, the appellants herein – third parties to          D
the suit are claiming right, title or interest on the basis of the development
agreements or otherwise with respect to Schedule A 6 (Part); Schedule
A8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part),
A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part);
Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part);
and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that the         E
application/s submitted by the original plaintiffs to implead the appellants
herein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/
are pending. The said application/s is/are filed by the original plaintiffs to
implead the appellants as defendants to the suit contending inter alia,
that they are necessary and proper parties. Therefore, according to the          F
plaintiffs also, the appellants herein (proposed defendants) are necessary
and proper parties. Therefore, before granting any injunction with respect
to the properties in which the appellants herein (proposed defendants)
are claiming right, title or interest on the basis of the development
agreements or otherwise they ought to have been given an opportunity
of being heard. No injunction could have been granted against them               G
without impleading them as defendants and thereafter without giving
them an opportunity of being heard.
       6. It is required to be noted that the learned trial Court dismissed
the injunction application and refused injunction by observing that some
                                                                                 H
412                SUPREME COURT REPORTS                         [2021] 7 S.C.R.


A     of the properties are evidently owned by the firms/trusts/companies
      which have not been made parties to the suit. Therefore, the impugned
      common judgment and order passed by the High Court granting injunction
      with respect to 1/7th share in the total plaint schedule properties which
      has been passed without giving an opportunity of being heard to the
      appellants and without impleading them as party-defendants in the suit
B
      by the learned trial Court, is unsustainable and deserves to be quashed
      and set aside.
             7. In view of the above and for the reasons stated above, all these
      appeals succeed. The impugned common judgment and order passed by
      the High Court granting injunction against alienation to the extent of
C     1/7th share in the total plaint schedule properties is hereby quashed and
      set aside qua Schedule A6 (Part); Schedule A8; Schedule A9, A30, A32
      (Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 &
      A34(Part); Schedule A4(Part), A34(Part); Schedule A35; Schedule
      A4(Part), A11(Part), A25, A26, A27, A34 (Part); and Schedule A3, A28,
D     A32, A37 & A38 properties only.
             The learned trial Court to first decide and dispose of the application/
      applications filed by the plaintiffs to implead the appellants herein as
      party-defendants in O.S. No. 4709/2019 after giving them an opportunity
      of being heard, which shall be considered and decided in accordance
E     with law and its own merits and thereafter, if at all the appellants herein
      – proposed defendants are impleaded as party-defendants, the learned
      trial Court to consider the interim injunction application afresh with respect
      to the properties mentioned above, in accordance with law and its own
      merits.

F              8. The present appeals are allowed to the aforesaid extent. No
      costs.


      Nidhi Jain                                                     Appeals allowed.


G




H