Karnataka High Court
Syed Najmul Hassan Saleh vs Mr. Syed Sajjad Ahmed on 6 February, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
MFA No. 7359 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7359 OF 2022 (CPC)
BETWEEN:
1. SYED NAJMUL HASSAN SALEH
AGED ABOUT 51 YEARS
S/O LATE MR MEER MOHAMMED
SALESH
R/AT SALEH CENTRE
NO 18, CUNNINGHMAM ROAD
BANGALORE 560052.
2. M/S NINESTARS INFORMATION
TECHNOLOLGIES (P) LTD
A COMPANY DULY REGISTERED AND
INCORPORATED UNDER COMAPNIES ACT
Digitally
signed by C 1956 HAVING ITS REGISTERED
MALATHI OFFICE AT NO 756, VASAN AVENUE
Location: ANNA SALAI
High Court CHENNAI 600 002.
of Karnataka AND BRANCH OFFICE AT:
NO.10, MASS RESIDENCY
3RD FLOOR, J P NAGARA
BANGALORE 560078
DULY REP BY DIRECTOR
MR. V GOPALAKRISHNAN.
...APPELLANTS
(BY SRI. SATYANAND B S., ADVOCATE)
-2-
MFA No. 7359 of 2022
AND:
1. MR. SYED SAJJAD AHMED
S/O LATE MR MEER MOHD SALEH
AGED 62 YEARS
R/AT NO.18/4, CUNNINGHAM
ROAD, CIVIL STATION
BANGALORE 560001.
2. KAUSER PARVEEN
D/O LT MEER MOHD SALEH
AGED ABOUT 61 YEARS
R/AT NO 1, MOSQUE ROAD
FRAZER TOWN
BANGALORE 560005.
3. SAIRA ALEEM
W/O LT MR SYED ALEEM SALEH
AGED ABOUT 59 YEARS
R/AT NO.204, 4TH CROSS, 3RD BLOCK
HBR LAYOUT, KALYNANAGAR
BANGLAORE 560043
4. MRS SABIHA MOHIDDUN
D/O LT MEER MOHD SALEH
W/O MR SYED MOHIDDIN
R/AT NO 10/1-1, BORE BANK ROAD
BENSON TOWN POST
BANGALORE 560046.
...RESPONDENTS
(BY SRI. S. V. GIRIDHAR, ADVOCATE C/R-1 TO R-3)
MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 20.08.2022 PASSED ON I.A.
NOs.1 TO 3 IN O.S.NO.2983/2022 ON THE FILE OF THE XV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH.NO.3), ALLOWING I.A. NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND
-3-
MFA No. 7359 of 2022
ALLOWING I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2
READ WITH SECTION 151 OF CPC AND DISMISSING I.A.NO.3
FILED UNDER ORDER 39 RULE 4 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Order XLIII Rule 1 (r) read with Section 151 of the Code of Civil Procedure, 1908 is filed by the defendant Nos.1 and 2 in O.S.No.2983/2022 on the file of the Court of City Civil Judge, Bengaluru, challenging the order dated 20.08.2022 passed by the XV Additional City Civil and Sessions Judge, Bengaluru (CCH-3) on I.A.Nos.1 and 2 filed by the plaintiffs under Order XXXIX Rule 1 and 2 of CPC and I.A.No.3 filed by the defendants under Order XXXIX Rule 4 of CPC whereby the trial Court has allowed I.A.Nos.1 and 2 filed by the plaintiffs and dismissed I.A.No.3 filed by the defendants.
2. For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court.
3. The plaintiffs have filed a suit for partition and possession in O.S.No.2983/2022. Along with the plaint, -4- MFA No. 7359 of 2022 they have filed I.A.Nos.1 and 2 under Order XXXIX Rule 1 and 2 of CPC seeking an order of injunction against the defendants and their men from alienating the common area i.e. Car parking and two wheeler parking as well as common passage in the Composite schedule properties in favour of any third party and also seeking injunction against the defendants restraining them from interfering with the plaintiffs' peaceful possession over the common area pending adjudication of the suit. They have obtained an ex-parte injunction against the defendants.
4. On service of summons, the defendants have appeared through their counsel and filed the written statement. They have also filed I.A.No.3 under Order XXXIX Rule 4 of CPC seeking for vacation of the ex-parte injunction order.
5. The trial Court after hearing both the parties, by impugned order date 20.08.2022 has allowed I.A.Nos.1 and 2 filed under Order XXXIX Rule 1 and 2 of CPC and dismissed I.A.No.3 filed under Order XXXIX Rule 4 of CPC -5- MFA No. 7359 of 2022 and granted an order of injunction in favour of the plaintiffs restraining the defendants and their men from alienating the common area i.e. Car parking and two wheeler parking as well as common passage in the Composite schedule properties in favour of any third party, pending adjudication of the suit. Being aggrieved by the same, defendant Nos.1 and 2 are before this Court in this appeal.
6. The learned counsel appearing for the appellants/defendant Nos.1 and 2 has contended that the suit schedule property originally belonged to their mother Sufia Begum. She had executed a Gift Deed in favour of her children. The appellants/defendant Nos.1 and 2 are concerned, pursuant to the gift deed, they are intended to alienate the property in favour of third party. Since the gift deed is not the subject matter of the suit, the trial Court has erred in restraining the defendants to alienate the common area. Since the common area is also a part of the gift deed, they have all right to alienate the property -6- MFA No. 7359 of 2022 including the common area. The trial Court has erred in restraining them from alienating the common area. Hence, he sought for allowing the appeal.
7. Per contra, the learned counsel appearing for the respondents/plaintiffs has contended that the injunction has been granted restraining the defendants from alienating the common area i.e. Car parking and two wheeler parking as well as common passage in the Composite schedule properties in favour of third party. He further contended that the common area is not a part of any gift deed. Hence, he contended that the trial Court has rightly restrained the defendants from alienating the common area. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the order passed by the trial Court.
9. The suit is filed by the plaintiffs for partition and possession. The summons have been issued to all the defendants. The service is yet to be completed. In the -7- MFA No. 7359 of 2022 meantime, the plaintiffs have obtained an ex-parte interim order. Defendant Nos.1 and 2 have appeared through their counsel and filed the written statement and also filed I.A.No.3 for vacating the ex-parte interim order. The only grievance of the appellants is that the parking area and the common passage are also included in the gift deed. They intended to alienate the property to the third party. In view of injunction order passed by the trial Court, they are unable to alienate the suit schedule property. The respondents have denied the same and contended that the parking area and common space are not part of the gift deed. Since the issue in respect of Car parking and the common area are pending before the trial Court, under these circumstances, the only relief that can be granted by this Court is to modify the impugned order dated 20.08.2022. Defendant Nos.1 and 2, plaintiffs and the purchaser of the property can give right of usage in respect of Car parking and two wheeler parking as well as common passage in the Composite schedule properties, subject to the result of the suit.
-8-MFA No. 7359 of 2022
10. Accordingly, the appeal is disposed of. The impugned order dated 20.08.2022 passed on I.A.Nos.1, 2 and 3 in O.S.No.2983/2022 is hereby modified. It is made clear that in respect of Car parking and two wheeler parking as well as common passage in the Composite schedule properties can be permitted to use commonly by both the parties including the purchaser subject to the result of the suit.
The trial Court is directed to decide the suit in accordance with law on merits without influencing any observations made in the impugned order.
Sd/-
JUDGE HA List No.: 1 Sl No.: 26