Partly allowed

Sri Mohammed Mumtaz v. Sri Mohammed Mukhtar Afsar

Karnataka HC16 Mar 2023MFA/350/2021

Case brief

AI extract

What is this about?

Appeal against order appointing receiver to collect rents/mesne profits in partition suit dismissed. Court modified lower order to direct appellants to produce rental accounts. Trial court directed to dispose suit within six months without being influenced by earlier findings.

What did the court decide?

Modified lower order; directed appellants to produce rental accounts; ordered trial court to dispose suit within six months without relying on impugned order findings.

Sri Mohammed Mumtaz Vs Sri Mohammed Mukhtar Afsar — Partition | Karnataka HC (2023)

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MFA No. 350 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR MISCELLANEOUS FIRST APPEAL NO. 350 OF 2021 (CPC)

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BETWEEN:

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SRI MOHAMMED MUMTAZ S/O LATE MOHAMMED KHALEEL DIED ON 15.09.2021 LEAVING BEHIND APPELLANT NO.2

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AS A SUCCESSOR HIS ESTATETE. (AMENDED CAEERIED OUT AS PER COURT ORDER)

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SRI MOHAMMED FAROOQ S/O LATE MOHAMMED KHALEEL AGED ABOUT 58 YEARS RESIDING IN A PORTION OF THIRD FLOOR FAR BANK APARTMENTS NO.3, BORE BANK ROAD BENSON TOWN, BENGALURU-560 046.

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…APPELLANTS

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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(BY SRI. K P BHUVAN.,ADVOCATE)

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AND:

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SRI MOHAMMED MUKHTAR AFSAR S/O LATE MOHAMMED KHALEEL AGED ABOUT 65 YEARS R/A NO.6/ID , TANK BUND ROAD JOURNALIS COLONY BENGALURU-560 002.

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SRI MOHAMMED NISAR S/O LATE MOHAMMED KHALEEL AGED ABOUT 67 YEARS R/A NO.21, FLAT NO.G3 SILVER OAKS GARDEN APARTMENTS VIJAY MALLYA ROAD BENGALURU-560 001.

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MFA No. 350 of 2021

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SMT NAFISA SHAHEEN W/O SAYEEDUL BARI JAWAD D/O MOHAMMED KHALEEL AGED ABOUT 52 YEARS R/A NO.50, 15^TH CROSS 1^ST BLOCK, R T NAGAR BENGALURU-560 032.

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…RESPONDENTS

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(BY SRI. MOHAMMED MUKHTAR AFSAR,(PARTY IN –PERSON- R-1 SRI. V.VISHWANATHA SETTY, ADVOCATE FOR R-2 SRI. MOYEEMULLA ABBASI, ADVOCATE FOR R-3)

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THIS MFA IS FILED U/O. 43 RULE 1(s) OF CPC, AGAINST THE ORDER DATED 28.07.2020 PASSED ON IA.NO.XI, IN O.S. NO.27257/2011 ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH.NO. 58), ALLOWING THE IA.NO.XI FILED UNDER ORDER XL, , RULE 1(a) AND (d) READ WITH SECTION 151 OF CPC ON BEHALF OF THE PETITIONER/PLAINTIFF.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the defendants 2 and 3 in O.S.No.27257/2011 is directed against the impugned order dated 28.07.2020 passed on I.A.No.11 on the file of LVII Addl.City Civil and Sessions Judge, Bangalore, whereby the said application filed by the 1^st respondent – plaintiff under Order 40 Rule 1 CPC for appointment of a Receiver to collect rents / mesne profits in relation to the suit schedule ‘C’ property was allowed by the trial court.

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A perusal of the material on record will indicate that the 1^st respondent instituted the aforesaid suit for partition and separate possession of his alleged 2/7^th share in all the suit schedule

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MFA No. 350 of 2021

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properties and for other reliefs. In the plaint, the schedule properties were described as A, B and C schedule properties. The appellants herein were arrayed as defendants 2 and 3 in the suit and all the defendants are contesting the suit. During the pendency of the suit, the 1^st respondent – plaintiff filed the instant application I.A.No.11 seeking appointment of a Receiver to collect the rents / mesne profits in relation to the suit schedule ‘C’ property. The said application having been opposed by the appellants, the trial court proceeded to pass the impugned order allowing I.A.No.11, aggrieved by which, the appellants are before this Court by way of the present appeal.

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The material on record including the impugned order will indicate that there are various contentious issues and disputed questions of fact and law that arise for consideration, which would be necessarily have to be resolved only after full fledged trial. It is also relevant to state that the pleadings of the parties have been completed and issues have been framed and the evidence of the plaintiff has already been completed and the matter is set down for defendants evidence.

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MFA No. 350 of 2021

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Under these circumstances, though several contentions have been urged by both sides in support of their respective claim in relation to the suit schedule properties as well as the rents / mesne profits arising there from, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to dispose of this appeal by modifying the impugned order passed by the trial court and by directing the appellants to produce the accounts / details, if any, in relation to all the suit schedule properties from the date of institution of the suit till today before the trial court within a period of four weeks from the next date of hearing of the suit before the trial court. The trial court is directed to dispose of the suit within a period of six months from today without being influenced by the findings and observations recorded in the impugned order. Liberty is reserved in favour of the parties to get the matter advanced / pre-poned for expeditious disposal of the suit. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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With the aforesaid directions, appeal stands disposed of.

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Sd/-

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JUDGE

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Srl.

Sri Mohammed Mumtaz v. Sri Mohammed Mukhtar Afsar

Case brief

What is this about?

What did the court decide?

Sri Mohammed Mumtaz v. Sri Mohammed Mukhtar Afsar

Case brief

What is this about?

What did the court decide?

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