IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 2814 OF 2016 (CPC) BETWEEN 1. Ms. Shagufta Parveen, D/o Late Syed Arifuddin, Aged about 37 years, 2. Mr. Syed Ziauddin, Aged about 40 years, S/o Late Syed Arifuddin, No.1 and 2 are residing at B-01, V.M. Apartments, No.123/1, Infantry Road, Bengaluru – 560 001.
3. Ms. Benazir Kauser, Aged about 42 years, D/o Late Syed Arifuddin, W/o Shafi Ur Rehaman, No.17, Millers Road, Bengaluru – 560 046.
4. Ms. Sadia Babu, Aged about 46 years, D/o Late Syed Arifuddin, W/o Syed Mueen Abrar, R/at No. 71, 3rd Cross, Ranka Nagar, R.T.Nagar, Bengaluru – 560 032.
5. M/s. Legacy Global Projects Pvt. Ltd., No. 3333, Thimmaiah Road, Bengaluru – 560 052, Rep. by its Directors, Mr. Sanjay Shenoy & Mr. Kiran Gowda.
6. M/s. Avaneesh Developers, No.50/10, Cunningham Road, Bengaluru – 560 052, Rep. by its Partner Sri Rakesh Prabhu. … Appellants (By Sri. S. Shaker Shetty, Advocate) AND:
1. Smt. Deepika D Ranka, D/o Late Sri Devraj H Ranka, Aged about 46 years, 2. Smt. Bhavika D. Ranka, D/o Late Sri Devraj H. Ranka, Aged about 28 years, Both are residing at Flat Nos. 534 & 544, Ranka Park Apartments 4, 5 & 6, Lalbagh Road, Bengaluru – 27.
… Respondents (By Sri. Muniyappa & Smt. Sinchana M.R., Advocates for C/R.) This MFA is filed under Order 43 Rule 1(r) of the CPC, against the order dated 29.01.2016 passed on IA No. 1 in O.S.No. 25587/2015 on the file of the 4th Additional City Civil & Sessions Judge, Mayohall Unit, Bengaluru, allowing IA No.1 filed under Order 39 rule 1 & 2 of CPC.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT Heard learned counsel for appellants and learned counsel for respondents. With the consent of learned counsel on both the side, the matter is heard finally and disposed of at the stage of admission.
2. This appeal is filed against the order dated 29.01.2016 passed in O.S.No.25587/2015 by the Court below allowing I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC.
The factual matrix of this appeal is as under:
3. Respondents/plaintiffs filed the above suit against the defendants for bare injunction in respect of suit schedule property depicted therein. They also filed I.A.No.1 seeking temporary injunction. Annexure-A is the copy of the plaint, Annexure-B is the copy of I.A.No.1 with affidavit. The court below on 21.07.2015 granted exparte order of temporary injunction in favour of plaintiffs. Defendants 1 to 4 filed I.A.2 and defendants 5 and 6 filed I.A.3 to vacate the interim injunction. Annexure-C is the copy of the written statement filed by the defendants and Annexure-D is the copy of adoption memo adopting the written statement as objections to I.A.1 filed for injunction. After hearing the matter, the trial Court vacated the order of temporary injunction by common order dated 08.12.2015 by allowing I.A.2 and 3 filed by the defendants and dismissed I.A.1 filed by the plaintiffs. Being aggrieved by the same, plaintiffs filed MFA No.9180/2015. This Court vide order dated 16.12.2015 set-aside the order dated 08.12.2015 with a direction to reconsider I.As.1 to 3 filed in O.S.No.25587/2015 on merits and in accordance with law. The copy of the order passed in MFA No.9180/2015 is produced as per Annexure-E. The trial Court based upon the documents placed by the plaintiffs and so also the contention taken by the defendants, vide order dated 29.01.2016 allowed I.A.No.1 and rejected I.A.2 and I.A.3. Hence, this appeal.
4. It is relevant to state that I.A.1 is filed by the plaintiffs under Order 39, Rules 1 and 2 CPC seeking an order of temporary injunction restraining the defendants from closing, blocking or altering the 30 feet passage/common road which is in lawful usage of the plaintiffs in respect of suit schedule property. I.A.2 is filed by defendants No.1 to 4 against plaintiffs under Order 39 Rule 4 CPC to vacate the exparte temporary injunction granted in favour of plaintiffs. I.A.3 is filed by defendant no.5 against plaintiffs under Order 39 Rule 4 CPC seeking to vacate the exparte temporary injunction granted in favour of plaintiffs.
5. Plaintiffs are the lessees under defendants No.1 to 4 in respect of the suit schedule property along with a private road which is in exclusive enjoyment of the plaintiffs for a period of 60 years from the period of long term, by virtue of a lease deed dated 14.08.1984 executed by Sri Syed Arifuddin, who is the father of defendants 1 to 4 in favour of M/s. Nandi Enterprises giving the right to demolish old structure and to put up a new building thereon. The same has been stated in the impugned order passed by the court below while considering I.A.1 to 3 by assigning reasons. Therefore, in this appeal it does not arise in detail to state the contentions taken by the parties.
6. The appellants’ counsel has taken various contentions stating that the order of court below is opposed to law, probabilities of the case and the same requires intervention of this court. He also placed reliance on the decisions reported in AIR 1982 Karnataka 314, AIR 2010 SC 296, ILR 1992 Karnataka 2905. The ratio of reliance which is captioned by the learned counsel for the appellants is also taken note of by the court below while disposing of the I.A.
7. It is relevant to state that the suit filed by the plaintiffs against defendants is for decree of permanent injunction in respect of the suit schedule property as depicted in the suit schedule. Learned counsel for the respondents/plaintiffs submitted that the case is set down for further cross-examination of PW.1. The suit is filed in the year 2015. The oral and documentary evidence produced on both the side in respect of the suit schedule property has to be tested by the court below by giving an opportunity to both the parties so as to establish their case, whether the plaintiff to establish prima-facie case against the defendants and whether any balance of convenience rests on them. These are all the aspects which has to be tested by the Court below. It is quite natural that in an injunction suit applications under Order 39 Rules 1 and 2 CPC will be filed by the plaintiffs for temporary injunction and in recourse to granting of injunction, defendants will file application under Order 39 Rule 4 CPC seeking dissolution of the injunction order granted in favour of the plaintiffs. All these things is required to be tested by the Court below in accordance with law. Therefore, it is deemed proper to dispose of this appeal by giving an opportunity to both the parties to adduce oral and documentary evidence in respect of suit schedule property before the court below.
8. Learned counsel for the plaintiffs submits that the suit in O.S.No.25587/2015 is listed on 18.02.2019. Therefore, the parties to the suit are directed to appear before the Court below on 18.02.2019 and to proceed further for cross-examination of PW.1. Without being influenced by any of the observations made in this appeal, the Court below shall dispose of the suit on merits and in accordance with law, within a period of six months from the date of receipt of copy of this judgment. The parties to extend their cooperation for speedy disposal of the suit. Accordingly, the appeal is disposed of.
Consequent upon disposal of the appeal, the pending IA does not survive for consideration. Accordingly, it is dismissed.
SD/- JUDGE DKB