Karnataka High Court
Smt Nabeela Khatoon vs Smt Dr Razia Begum Ahmed on 31 October, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION No.35883 OF 2017 (GM CPC) C/W
MISCELLANEOUS FIRST APPEAL No.6269 OF 2017(CPC)
In WP.No.35883/2017
BETWEEN
1. Smt. Nabeela Khatoon,
W/o. Mr. M.Abdul Majeed,
Aged about 35 years,
2. Mr. M Abdul Mubeen,
Aged about 66 years,
Senior Citizen benefit not claimed,
Petitioners 1 & 2 are
R/at #94/2 Infantry Road,
Bengaluru-560001.
3. M/s. Thunder Bird,
Rep. by its proprietary
Smt. Firdouse Bareen
W/o. Mr. Rafi Ahmed Fazil,
Aged about 55 years,
R/at #118, first floor,
Commercial Street Bengaluru-560001.
4. M/s. Sumulas Enterprises,
Rep. by it Manager Mr. Zabi Ulla,
S/o. Mr. Syed Ameer Jan,
2
Aged about 34 years,
R/at #118, first floor Commercial Street
Bengaluru-560001.
...Petitioners
(By Sri. Naveed Ahmed, Advocate)
AND
Smt. Dr.Razia Begum Ahmed
Aged about 60 years,
W/o. Dr. Modi Anees Ahmed
R/at No.94/2-1, Infantry Road,
Bangalore-560001.
...Respondent
(By Sri. Suhaib Fazeel Madar, Advocate) This Writ Petition is filed under Article 227 of Constitution of India praying to quash the order dated 29.07.2017 passed by the Learned Civil Judge on I.A.No.II/2016 filed by the petitioner under Section 144 of CPC passed by the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bangalore in O.S.No.25502/2016 at Annexure-A. In MFA.No.6269/2017 BETWEEN
1. Smt. Nabeela Khatoon, W/o. Mr. M.Abdul Majeed, Aged about 35 years,
2. Mr. M Abdul Mubeen, Aged about 66 years, 3 Appellants 1 & 2 are R/at #94/2 Infantry Road, Bengaluru-560001.
3. M/s. Thunder Bird, Rep. by its proprietary Smt. Firdouse Bareen W/o. Mr. Rafi Ahmed Fazil, Aged about 55 years, R/at #118, first floor, Commercial Street Bengaluru-560001.
4. M/s. Sumulas Enterprises, Rep. by it Manager Mr. Zabi Ulla, S/o. Mr. Syed Ameer Jan, Aged about 35 years, R/at #118, Ground Floor Commercial Street Bengaluru-560001.
...Appellants (By Sri. Naveed Ahmed, Advocate) AND Smt. Dr.Razia Begum Ahmed Aged about 60 years, W/o. Dr. Modi Anees Ahmed R/at No.94/2-1, Infantry Road, Bangalore-560001.
...Respondent (By Sri. Suhaib Fazeel Madar, Advocate) This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 29.07.2017 passed on I.A.No.1 In O.S.No.25502/2016 on the file of the XXVI Additional City Civil and Sessions Judge at Mayo Hall Bengaluru, (CCH- 4
20), allowing the I.A.No.1 filed under order XXXIX Rule 1 & 2 Read with Section 151 of CPC.
This Petition & Appeal coming on for orders this day, the court made the following:
ORDER IN W.P.No.35883/2017
This petition is filed under Article 227 of Constitution of India seeking a writ in the nature of Certiorari for quashing the order dated 29.07.2017 passed by the trial court on I.A.2/2016 filed under Section 144 CPC in O.S.No.25502/2016, on the file of XXVI Additional City Civil and Session Judge, Mayo Hall, Bengaluru.
2. Heard the learned counsel for the petitioners and the respondent. The facts are that the respondent filed a suit for permanent injunction to restrain the petitioners from interfering with renovation and construction activities undertaken by him in the suit property and to restrain them from interfering with his peaceful possession and enjoyment of the suit property. The subject matter of the 5 suit is commercial property bearing No.118/1, Commercial Street, Bengaluru measuring East to West 12.3 sq. ft. and North to South 30 ft., totally measuring 367.7 sq.ft. The trial court entertained the application filed by the plaintiff/respondent under Order 39 Rules 1 and 2 CPC and granted an order of temporary injunction restraining the appellants from interfering with renovation and construction activities and their peaceful possession and enjoyment of the suit schedule property. After the said order was passed, the respondent got constructed a wall on the stair case reducing their width from 4 ft. to 2 ft.
Therefore the appellants made an application under Section 144 CPC for restoring the original width of the stair case. Since the said application was dismissed by the trial court the petitioners who are defendants in the suit have filed this writ petition.
3. The petitioners' counsel submits that on the day when the trial court granted an order of temporary injunction, there was no bifurcation wall on the stair case. 6 Even though the petitioners do not dispute that the suit property belongs to the respondent, according to them the stair case is a common area meant for use of the petitioners and the respondent. The order of temporary injunction did not permit the respondent to put up the wall. Because of this construction, the width of the stair case has been reduced and the position now is as such that nobody can make use of the stair case. Taking this factor into consideration, it is argued that the trial court should have entertained the application for restoring the position of the stair case as on the day of suit. The trial court has committed an error in dismissing the application and therefore it requires to be set aside.
4. The counsel for the respondent argues that the suit property belongs to the respondent absolutely. In the partition deed or the rectification deed, there is no mention that the stair case is meant for the common use of the parties concerned. In accordance with the terms of the partition deed and the rectification deed, the respondent 7 got constructed a wall on the stair case. This was not illegal. In this background rejection of appellants' application filed under Section 144 CPC is proper and this writ petition cannot be entertained.
5. I have perused the impugned order and also the photographs depicting the position of the stair case. It is not disputed by the respondent's counsel that there was no bifurcation wall on the stair case on the day when the trial court passed an order of injunction. The petitioners' property is commercial property situated in the ground and first floor of the building. There is no dispute that the original measurement of the width of the stair case was four feet. The photographs clearly show a wall having been constructed in the middle of the stair case and thereby there is reduction in the width of the staircase. Just because in the partition deed and the rectification deed it is not stated that the stair case is common area, it cannot be understood at this stage that it is not common area. It is for the trial court to decide this factor if such an 8 issue arises for consideration. The stair case is meant for use of all the occupants of the building; each owner or occupant has an interest in the common area proportionate to area under their actual occupation. Since on the day when the suit was filed and the order of injunction was granted, there was no wall on the stair case, the respondent had no right to construct the wall reducing the width of the stair case by making use of injunction order. The very purpose of granting injunction order is to see that the disputed area remains as it is. The prayer sought for by the respondent shows that the appellants were interfering with the renovation activities undertaken by her. Plaint does not indicate that the respondent wanted to put up bifurcation wall on the stair case. Therefore in my opinion the position of the stair case as it stood on the day of the suit should be restored.
6. Section 144 CPC is applicable for restoration of original position or status after disposal of the appeal, but none the less, the Civil Courts can exercise their inherent 9 jurisdiction in a situation made out here. In this view of the matter, I find that the order of the trail court in dismissing the application is not sustainable. I.A.2 is allowed. The respondent is hereby directed to remove the construction made on the stair case within four weeks from today.
Since the appellants' counsel makes a submission that they will not interfere with the possession of the respondent in respect of the suit property, consideration of MFA.No.6269/2017 will not arise.
Sd/-
JUDGE sd