IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.5673 OF 2019 (CPC) C/W MISCELLANEOUS FIRST APPEAL No.5276 OF 2019 (CPC) In MFA No.5673/2019 BETWEEN:
1. Smt. TasmeemWaheed Ahmed, W/o. Mohammed Waheed Ahmed, Aged about 57 years, R/at No.441, 14th Cross, Lakkasandra, Bengaluru-30.
2. Sri. ZohebWaheed Ahmed, S/o. MohammedWaheed Ahmed, Aged about 30 years, Working as Key Accounts Manager, Caparol Paints LLC, SaihSubaib, Dubai Industrial City, Post Box No.62182, Dubai-United Arab Emirates 3. Sri. ZubairWaheed Ahmed, S/o. MohammedWaheed Ahmed, Aged about 27 years, Working as Chief Technology Officer, Razer Tech DMCC Unit No.30-01-2498 Jewelry & Gemplex, Dubai-UAE.
4. Sri. Vazir Ahmed Khan, S/o. Mohammed Khan, Aged about 67 years, R/at No.456, 15th Cross, Lakkasandra, Bengaluru-560030.
5. Sri. Vazir Ali Khan, S/o. Mohaboob Ali Khan, Aged about 42 years, Deputy Superintendent of Police-2 Anti-Corruption Bureau, Central Range No.49, Khanija Bhavan, Race Course Road, Bengaluru-560001.
(By Sri. A.Madhusudhana Rao, Advocate) AND:
1. Sri. Mohammed Waheed Ahmed, S/o. Late Mohammed Hayath Aged about 62 years, R/at “Deja Apartments”
Flat No.16, Door No.428/429, 1st Main, Arekere, Lakshmi Layout, Bannerghatta Main Road, Bengaluru-560076.
2. Sri. Martinmanacherry, Aged about 49 years, R/at No.133, Ground Floor, 4th Cross, Lakshmi Layout, ArekereMico Layout, Bengaluru-560076.
…Appellants 3. Sri. Syed Saleem, Aged about 50 years, R/at No.133, Ground Floor, 4th Cross, Lakshmi Layout, Arekere Mico Layout, Bengaluru-560076.
... Respondents (By Smt. Shwetha Ravishankar, Advocate for C/R1) This MFA is filed under Order 43 Rule 1(r) of then CPC, against the Order dated 22.06.2019 passed on I.A.No.2 in O.S.No.3093/2019 on the file of the XII Additional City Civil & Sessions Judge (CCH No.27), Bengaluru, allowing I.A.No.2 filed under Order 39 Rules 1 & 2 of CPC.
In MFA No.5276/2019 BETWEEN:
1. Smt. Tasmeem Waheed Ahmed, W/o. Mohammed Waheed Ahmed, Aged about 57 years, R/at No.441, 14th Cross, Lakkasandra, Bengaluru-30.
2. Sri. Zoheb Waheed Ahmed, S/o. Mohammed Waheed Ahmed, Aged about 30 years, Working as Key Accounts Manager, Caparol Paints LLC, SaihSubaib, Dubai Industrial City, Post Box No.62182, Dubai-United Arab Emirates 3. Sri. Zubair Waheed Ahmed, S/o. Mohammed Waheed Ahmed, Aged about 27 years, Working as Chief Technology Officer, Razer Tech DMCC Unit No.30-01-2498 Jewelry & Gemplex, Dubai-UAE.
4. Sri. Vazir Ahmed Khan, S/o. Mohammed Khan, Aged about 67 years, R/at No.456, 15th Cross, Lakkasandra, Bengaluru-560030.
5. Sri. Vazir Ali Khan, S/o. Mohaboob Ali Khan, Aged about 42 years, Deputy Superintendent of Police-2 Anti-Corruption Bureau, Central Range No.49, Khanija Bhavan, Race Course Road, Bengaluru-560001.
(By Sri. A.Madhusudhana Rao, Advocate) AND:
1. Sri. Mohammed Waheed Ahmed, S/o. Late Mohammed Hayath Aged about 62 years, R/at “Deja Apartments”
Flat No.16, Door No.428/429, 1st Main, Arekere, Lakshmi Layout, Bannerghatta Main Road, Bengaluru-560076.
2. Sri. Martinmanacherry, Aged about 49 years, …Appellants R/at No.133, Ground Floor, 4th Cross, Lakshmi Layout, Arekere Mico Layout, Bengaluru-560076.
3. Sri. SyedSaleem, Aged about 50 years, R/at No.133, Ground Floor, 4th Cross, Lakshmi Layout, Arekere Mico Layout, Bengaluru-560076.
... Respondents (By Smt. Shwetha Ravishankar, Advocate for C/R1) This MFA is filed under Order 43 Rule 1(r) of then CPC, against the Order dated 22.06.2019 passed on I.A.Nos.1 & 4 in O.S.No.3093/2019 on the file of the XII Additional City Civil & Sessions Judge (CCH No.27), Bengaluru, allowing I.A.No.1 filed under Order 39 Rules 1 & 2 of CPC and dismissing IA No.4 filed under Order 39 Rule 4 of CPC.
These appeals coming on for admission, this day, the Court made the following:
JUDGMENT Defendant Nos.1 to 5 in O.S.No.3093/2019 have preferred these appeals challenging the order dated 22.06.2019 on IA Nos.1, 2, 4 and 5. IA Nos.1 and 2 were filed by the plaintiff seeking an order of temporary injunction and IA Nos.4 and 5 were filed by the defendants seeking to vacate the exparte order of temporary injunction.
2. The plaintiff is the husband of first defendant and the defendant Nos.2 and 3 are the children of the first defendant. There are matrimonial disputes pending between the plaintiff and the first defendant.
3. Learned counsel for the appellants argues that the impugned order does not show discussion on many documents produced by the appellants. The properties belong to the first defendant also as she has contributed for purchase the said properties. Without considering the materials in this regard, the trial Court has simply come to conclusion that the plaintiff being head of the family might have acquired the properties. If the trial Court had applied its mind to the documents produced by the defendants, it would not have taken the view found in the impugned order.
4. On the other hand, counsel for the respondent No.1 submits that the property item No.2 was purchased by the plaintiff when the defendant Nos.2 and 3 were minors. Therefore, the trial Court is right in coming to conclusion to the effect that the suit item No.2 belongs to plaintiff.
5. On perusing the impugned order, it become very clear that it has not at all discussed or taken into consideration the documents produced on behalf of the defendants. In this appeal, the appellants counsel wants to produce certain documents which are actually not produced before the trial Court. The counsel for respondent No.1 also wants to produce certain additional documents. When the impugned order shows no discussion on the defendants documents and that both parties want to rely upon some more documents, I find that the trial Court has to apply its mind to all the documents to come to conclusion whether the interim order sought for by the plaintiff can be granted or not. In this view, I hold that the appeals deserve to be allowed. Accordingly both the appeals are allowed. Impugned order is set-aside. Matter is remanded to the trial Court for deciding the applications once again.
Both parties are at liberty to produce additional documents.
All the contentions are kept open to be urged before the trial Court.
KMV/-
SD/- JUDGE