Dismissed

Mr K S Mohana Rao v. the Scintilla Apartments Residents Welfare Association

Karnataka HC26 Mar 2024MFA/1924/2024

Case brief

AI extract

What is this about?

Appeal against rejection of interim injunction sought in a suit over ownership of a car park claimed under a sale deed and allegedly overwritten from another flat owner's space. The High Court held entitlement to the car park was a question of fact for trial and dismissed the appeal.

What the court decided

AI extract

Mr K S Mohana Rao Vs the Scintilla Apartments Residents… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:12690 MFA No. 1924 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 1924 OF 2024 (CPC)

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BETWEEN:

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MR. K.S. MOHANA RAO S/O LATE D. SUBBARAYA, AGED ABOUT 66 YEARS,

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MRS. VIDYA R W/O MR. K.S. MOHANA RAO, AGED ABOUT 62 YEARS, BOTH ARE R/A NO.231, 5^TH 'B' MAIN, YELAHANKA NEW TOWN, BENGALURU 560064

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…APPELLANTS

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(BY SRI. KRISHNAMURTHY M.R., ADVOCATE)

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AND:

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THE SCINTILLA APARTMENTS RESIDENTS WELFARE ASSOCIATION A REGISTERED SOCIETY Digitally signed by BS REGISTERED OFFICE AT NO.45, RAVIKUMAR YELAHANKA INDUSTRIAL AREA FORMED BY KHB, Location: 4^TH PHASE, YELAHANKA NEW TOWN, HIGH COURT OF BENGALURU-560064, KARNATAKA REPRESENTED BY ITS PRESIDENT/SECRETARY

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MR. SHIVALINGAIAH S S/O SRI SIDDA SHETTY, AGED ABOUT 62 YEARS, R/A NO.305B, 3^RD FLOOR, SCINTILLA APARTMENT, 1^ST MAIN ROAD, 4^TH PHASE, YELAHANKA NEW TOWN, BENGALURU-560094.

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…RESPONDENTS

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2 - NC: 2024:KHC:12690 MFA No. 1924 of 2024

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 26.02.2024 PASSED ON IA NO.1 IN O.S.NO.5057/2023 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/c. OF XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-30), REJECTING IA NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 OF THE CPC AND INTERIM ORDER OF INJUNCTION DATED 09.08.2023 STANDS VACATED.

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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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The plaintiffs in O.S.No.5057/2023 on the file of the XXIX Additional City Civil and Sessions Judge, Bengaluru (CCH - 30) (henceforth referred to as 'Trial Court') have filed this appeal challenging an order dated 26.02.2024 by which, an application filed by them under Order XXXIX Rules 1 and 2 of CPC for interim injunction respect of a car park, was rejected.

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The suit in O.S.No.5057/2023 was filed for perpetual injunction in respect of a car park, which the plaintiffs claimed to have purchased in terms of a sale deed dated 27.07.2012. The plaintiffs claimed that the defendant No.2 allegedly having purchased the flat in the same block, laid a claim for allotment of the car park, which the plaintiffs

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3 - NC: 2024:KHC:12690 MFA No. 1924 of 2024

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possessed. Therefore, the suit for the relief of perpetual injunction was filed.

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Along with the plaint, the plaintiffs filed an application under Order XXXIX Rules 1 and 2 of CPC for interim injunction to protect their right to use car park. The said application was contested by the defendant No.1 as well as the defendant No.2, who contended that the defendant No.2 had purchased a flat along with car park bearing No.B-702. The defendant No.2 claimed that the plaintiffs had overwritten the car park space belonging to the defendants and mentioned it as 'B-201' and was claiming the said car park.

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The Trial Court after considering the contentions urged, held that the question whether the plaintiffs were entitled to car park bearing No.B-201 and/or whether the car park allotted to the defendant No.2 was in fact the car park, which was allotted to the plaintiffs, are all questions of fact that had to be adjudicated after a trial. Consequently, it rejected the application filed by the plaintiffs by the impugned order.

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The plaintiffs being aggrieved by the said order,

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have filed this appeal.

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NC: 2024:KHC:12690 MFA No. 1924 of 2024

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The learned counsel for the plaintiffs vehemently contended that the sale deed dated 27.07.2012 under which, the plaintiffs purchased the property bore a clear reference to a car park bearing No.B-201. He contends that from the year 2012, the plaintiffs have been using the said car park and therefore, the defendant No.2 is liable to be restrained from obstructing the usage of the said car park.

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A perusal of the impugned order shows that the Apartment Owners Association clearly stated that the car park bearing No.B-702 was overwritten by the plaintiffs to seem as if it was the car park bearing No.B-201. If that be so, the contention whether the car park claimed by the plaintiffs was bearing No.B-702 or B-201, is a question of fact which had to be adjudicated by the Trial Court. Therefore, the Trial Court was right in not granting any interim relief, as that would have caused hardship to the defendant No.2.

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In that view of the matter, there is no merit in this

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appeal and the same is dismissed .

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NC: 2024:KHC:12690 MFA No. 1924 of 2024

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In view of dismissal of the appeal, pending I.As., if

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any, do not survive for consideration and the same stand dismissed.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 52

Mr K S Mohana Rao v. the Scintilla Apartments Residents Welfare Association

Case brief

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What the court decided

Mr K S Mohana Rao v. the Scintilla Apartments Residents Welfare Association

Case brief

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