Allowed

Sri. Manjunath. a. S. v. Sri. Arjun. G. K.

Karnataka HC5 Dec 2023MFA/4511/2022

Case brief

AI extract

What is this about?

The High Court allowed an appeals filed under CPC Order 43 Rule 1(r) against the dismissal of an interim injunction application in a suit for injunction. Finding the trial court's observation that the sale deed did not mention the car parking area to be incorrect and contrary to recitals in the deed, the appellate court set aside the lower order and remitted the matter for reconsideration.

What did the court decide?

The order dated 24.03.2022 dismissing IA No.1 was set aside. The matter was remitted to the trial court to reconsider the application for temporary injunction after giving opportunity to both parties.

Sri. Manjunath. a. S. Vs Sri. Arjun. G. K. — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:43908 MFA No. 4511 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 4511 OF 2022 (CPC)

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BETWEEN:

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SRI. MANJUNATH. A. S. AGED ABOUT 47 YEARS S/O SATYADEVAN A A NO.402 THIRD FLOOR PADMASHREE PRESIDENCY APARTMENT 17TH CROSS 21ST MAIN J P NAGAR, 5TH PHASE BANGALORE-560078. …APPELLANT

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(BY SRI. KESHAVA KUMAR B.,ADVOCATE)

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AND:

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Digitally signed 1. SRI. ARJUN. G. K. by S/O SRI KRISHNA GOWDA DHANALAKSHMI MURTHY AGED ABOUT 40 YEARS Location: High R/AT NO.403 THIRD FLOOR Court of PADMASHREE PRESIDENCY APARTMENT Karnataka 17TH CROSS 21ST MAIN J P NAGAR, 5TH PHASE BANGALORE-560078.

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M/S PADMASHREE PRESIDENCY CONDOMINIUM OWNERS WELFARE ASSOCIATION REGISTERED OFFICE AT 21ST MAIN 17TH CROSS

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NC: 2023:KHC:43908 MFA No. 4511 of 2022

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J P NAGAR, 5TH PHASE BANGALORE-560078.

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…RESPONDENTS

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(BY SRI. KESHAVA KUMAR B., ADVOCATE FOR SRI. PRAKASH M H., ADVOCATE FOR C/R1)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED: 24.03.2022 PASSED ON I.A. NO. 1 IN O.S.NO. 5912/2021 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.3), DISMISSING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC

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

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JUDGMENT

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This appeal is filed by the plaintiff under Order 43 Rule 1(r) of CPC, challenging the order dated 24.03.2022 passed by the XV Additional City Civil and Sessions Judge, Bengaluru in O.S.No.5912/2021, whereby, IA No.1 filed by the plaintiff under Order 39 Rules 1 and 2 of CPC has been dismissed.

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For the sake of convenience, parties are referred to as per their ranking before the trial court.

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The plaintiff filed a suit for injunction. Along with

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the plaint, he has also filed IA No.1 under Order 39 Rules 1 and 2 of CPC seeking temporary injunction against the

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3 - NC: 2023:KHC:43908 MFA No. 4511 of 2022

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defendants restraining them from interfering with the car parking area of the plaintiff over the suit schedule property. The trial court, after hearing the parties, dismissed the application. Being aggrieved by the same, the plaintiff filed this appeal.

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Learned counsel appearing for the appellant/ plaintiff contended that the trial court dismissed the application only on the ground that in the sale deed dated 27.10.2014 there is no mention regarding the purchase of car parking area. He contended that in the sale deed recital it is very clear that he purchased the flat including car parking area. Hence, he contended that the finding of the trial court is contrary to the materials available on record.

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Per contra, learned counsel appearing for the defendants/respondents has contended that the car parking which is in dispute has been used by the first defendant. At no point of time, that has been sold in favour of the plaintiff. The trial court, after considering

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4 - NC: 2023:KHC:43908 MFA No. 4511 of 2022

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the materials available on record, has rightly rejected the application.

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Heard the learned counsel for the parties and perused the appeal papers.

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It is not in dispute that the plaintiff filed a suit for bare injunction. He has also filed IA No.1 under Order 39 Rules 1 and 2 seeking temporary injunction restraining the defendants from interfering with the car parking area of the plaintiff over the suit schedule property. The sale deed dated 27.10.2014 has been placed before this Court. In the recital of the sale deed, it is mentioned as hereinbelow:

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“All that piece and parcel of the three bedroom residential apartment bearing No.402 on the third floor, presently bearing independent Municipal Corporation No.1001/1011/575/402 New PID No.187W0069-16-20, Corporation Ward No.187, having a super built-up area of 1330 square feet together with one reserved covered car park space in the residential apartment building

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5 - NC: 2023:KHC:43908 MFA No. 4511 of 2022

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known as “PADMASHREE RESIDENCY” constructed on the Schedule ‘A’ property, with proportionate share in common areas such as passages, lobbies, lift, staircase and other areas of common use with right to pass through all the common passages leading to road and free from egress and ingress at all times and entitled for all the common areas and amenities subject to prompt payment of maintenance charges.”

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By looking into the same, it is very clear that the finding given by the trial court that in the sale deed, dated 27.04.2014, there is no mention regarding the purchase of car parking area, is not correct. The same is contrary to the materials available on record. Hence, the impugned order requires to be set aside.

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Accordingly, I pass the following order:

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(i) The appeal is allowed.

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(ii) The order dated 24.03.2022 on IA

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No.1 in O.S.No.5912/2021 passed by the XV

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NC: 2023:KHC:43908 MFA No. 4511 of 2022

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Additional City Civil and Sessions Judge,

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Bengaluru is set aside.

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(iii) The matter is remitted back to the trial court with a direction to reconsider IA No.1

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filed by the plaintiff under Order 39 Rules 1 and 2, in accordance with law, after giving opportunity to both the parties.

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(iv) All pending applications stand disposed of.

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Sd/JUDGE

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CM List No.: 1 Sl No.: 63

Sri. Manjunath. a. S. v. Sri. Arjun. G. K.

Case brief

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Sri. Manjunath. a. S. v. Sri. Arjun. G. K.

Case brief

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