Partly allowed

Sri.S.a. Bari v. Sri.Syed Taufiq Ahmmed

Karnataka HC5 Sept 2024MFA/2018/2024

Case brief

AI extract

What is this about?

Appellant appealed against an interim order maintaining status quo on a property. High Court modified the order, applying status quo only to the ground floor but removing it from the first floor due to lack of proof regarding payment for that portion.

What did the court decide?

Order of status quo in respect of ground floor only; appeal on status quo regarding first floor is dismissed.

Sri.S.a. Bari Vs Sri.Syed Taufiq Ahmmed — Contract and Commercial Disputes | Karnataka HC (2024)

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NC: 2024:KHC:36782 MFA No. 2018 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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M.F.A. NO. 2018 OF 2024 (CPC-)

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BETWEEN:

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SRI.S.A. BARI AGED 84 YEARS, S/O. LATE SRI S.A. SALAM SAHEB RESIDING AT NO.370/A, 1^ST FLOOR, 5^TH CROSS, LAKSHMI LAYOUT, ARAKERE MICO LAYOUT BANNERUGATTA ROAD BENGALURU-560076

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…APPELLANT

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(BY SRI. LANKESH L., ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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SRI.SYED TAUFIQ AHMMED S/O. LATE SRI. MOHAMMED HANEEF AGE 55 YEARS R/AT NO.13, GROUND FLOOR, TCM ROYAN ROAD, 1^ST CROSS CITY MARKET, BENGALURU-560053

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…RESPONDENT

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(BY SRI. SKANDA KUMAR, ADVOCATE)

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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12.12.2023 PASSED ON I.A.NO.1/2023 AND 2/2023 IN

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NC: 2024:KHC:36782 MFA No. 2018 of 2024

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OS.NO.25178/2023 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL UNIT, CCH-29, BENGALURU.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the orders passed in I.A.No.1/2023 in O.S.No.25178/2023 dated 12.12.2023, by XXVIII Addl. City Civil Judge at Mayo Hall Unit (CCH-29), Bangalore, the appellant/defendant is before this Court.

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The respondent herein had filed a suit seeking a direction to the defendant to execute the sale deed in favour of the plaintiff in respect to the ground and first floor of the suit schedule property and to put the plaintiff in physical possession of the first floor of the property. In the event, the defendant fail to execute the sale deed, direct the Registry to execute the sale deed. In that, he had filed the IA seeking temporary injunction restraining the defendant from alienating, transferring, mortgaging and dealing with the suit schedule property in any manner or by creating any third party rights in respect of the suit schedule property. The trial Court by the order impugned, had allowed the said application directing both the parties to

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maintain status-quo regarding possession and ownership on the suit property till the disposal of the suit. Aggrieved thereby, the appellant/defendant is before this Court.

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It is the specific case of the plaintiff that the defendant is the absolute owner of the property. The defendant had agreed to sell the ground floor of the property in favour of the plaintiff for total consideration of an amount of Rs.7,00,000/- which consist of one hall, one dining hall, one bedroom, one toilet and one separate bathroom. The defendant has received the entire sale consideration in respect of the ground floor of the property and the same has been confirmed by the defendant on 30.06.2012. Subsequently, the defendant has also agreed to sell the entire first floor of the schedule property for a sum of Rs.10,00,000/- in favour of the plaintiff, which sum was acknowledged by the defendant, as the same was being paid by the wife of the dependent, who is none other than the sister of the plaintiff. According to the plaintiff, he had paid an amount of Rs.17,00,000/- to the defendant in respect of both the ground and first floor and nothing remains to be paid from the plaintiff. Even after paying the entire sale consideration, the defendant on one pretext or the other, has

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postponed the execution of the sale deed. The plaintiff has issued a notice on 06.01.2023 calling upon the defendant to execute the sale deed. When there was no response, the plaintiff was constrained to file the present suit. The defendant had filed his written statement, wherein he denied the execution of the sale deed. It is stated that the elder brother of the plaintiff namely Sri.Syed Farooq was inducted as tenant in the ground floor of the suit property vide rental agreement dated 08.09.1999 on monthly rent basis for sum of Rs.1,000/per month. During the year 2000, the said Syed Farooq Ahmed has vacated the ground floor and then being younger brother of Syed Farooq Ahmed, the plaintiff has occupied the ground floor of the suit property. The plaintiff is the brother-in-law of the defendant. Hence, there was no necessity of creating fresh lease/rent deed in favour of the plaintiff and based on the previous rental deed of his brother, the plaintiff had continued as tenant in the ground floor of the suit property and for initial periods, he paid the rents regularly and later he became a chronic defaulter in rent and all efforts of the defendant to recover balance rent from the plaintiff gone to vain. He has approached the plaintiff’s brother but he did not help the

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defendant. It is stated that now the plaintiff is staying in the ground floor of the suit schedule property as tenant without paying any rents to the defendant and he has also filed a eviction suit and the same is pending consideration. The trial Court while passing an order had observed about the pending civil suit and also a suit that is filed by the plaintiff basing on a receipt dated 30.06.2012 and the issue of limitation, which has to be gone into at the time of trial and the court has observed that the document available on record shows some payment is received by the defendant from the plaintiff. Plaintiff claims that it is the sale consideration towards the suit property. The defendant even though filed detailed written statement, did not explain what was the said amount. However, he claims that no relief can be claimed under the said receipt and it is a concocted one. The Court further observes that at this stage, the said ground also cannot be accepted in toto as it requires full fledged trial. It is an admitted fact that the plaintiff is in possession of the suit property. However, defendant already initiated eviction proceedings. Under these circumstances, it would be appropriate to direct both parties to maintain status quo regarding possession and ownership of the suit property till

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NC: 2024:KHC:36782 MFA No. 2018 of 2024

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disposal of the suit. Accordingly, the Court had passed an order of status quo .

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Learned counsel appearing for the appellant

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submits that the receipt of the year 2012, they have never executed the said receipt. Even assuming that without accepting such a receipt is executed, which is of the year 2012, basing on that suit for specific performance cannot be filed. It is submitted that he is an occupation of the ground floor of the building and even the receipt speaks about Rs.7,00,000/- that is with regard to the ground floor, according to the plaintiff, he had paid a sum of Rs.10,00,000/-. No receipt is filed in that regard and when he has paid also not mentioned. The Court, without any basis has granted an order of status quo in respect of the ground floor and the first floor of the property. He submits that the order i.e., passed by the trial Court is without any basis, without looking at the material placed on record and contrary to law and the same is liable to be set-aside.

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Learned counsel appearing for the respondent/ plaintiff submits that the defendant has filed a suit for eviction i.e., S.C.No.392/2023, on the file of the II Additional C.J.M.

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Court of Small Causes, seeking eviction. The trial Court had dismissed the said eviction petition. The Court has observed that the plaintiff landlord did not produce the original Rental Agreement dated 08.09.1999. In the cross examination, he admitted that there is no tenant and owner relationship between the plaintiff and the defendant. He also admitted that O.S.No.25179/2023 is pending between the defendant and the plaintiff for specific performance of contract. He also admitted that after receipt of the summons of the suit, he filed the present suit. When the said suit is pending for determination of their rights and as there is no relationship between the plaintiff and defendant as owner and tenant, then question of entertaining the suit for eviction does not arise. Hence, it is held that the plaintiff has failed to prove that the suit is maintainable and accordingly, dismissed the suit. Learned counsel further submits that so far no appeal is filed against the said judgment passed by the court. He submits that he is in occupation of the property and there is no dispute about the fact and the trial Court had rightly passed an order to maintain status quo and no grounds are made out seeking interference with well considered order passed by the trial Court.

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Having heard the learned counsel on either side,

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perused the material on record. Basing on the receipt dated 30.06.2012, the plaintiff is seeking specific performance and direction to the defendant to execute the sale deed in respect of the ground floor and first floor of the suit schedule property.

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The receipt speaks about the ground floor portion and admittedly, the plaintiff is also in possession of the ground floor of the property. According to him, he paid an amount of Rs.10,00,000/- in respect of the first floor and when is the date of payment, what is the receipt and there is no other material placed before the Court. The eviction suit i.e, filed by the plaintiff is dismissed, which also shows the possession of the defendant in respect of the ground floor. The trial Court had rightly observed that basing on a receipt dated 30.06.2012, whether the Court can order the specific performance and direct the defendant to execute the sale deed, the law of limitation and all those aspects have to be considered after a full fledged trial. Now at this point of time, Court has to only consider whether the plaintiff is entitled for injunction. The trial Court had rightly considered about the possession of the defendant, but while passing an order the court had directed to

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maintain status quo in respect of the suit scheduled property i.e., the ground floor and the first floor. The order of maintaining status quo in respect of the ground floor, the Court

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was right, but when it comes to the first floor, there is no material on record to show that the plaintiff has paid any amount and the receipt is pertaining to ground floor. In that view of the matter, the order passed by the trial Court is modified and there shall be a status quo in respect of ground floor of the suit schedule property.

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Accordingly, this Court is passing the following:

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ORDER

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(i) There shall be an order of status quo in respect of ground floor of the suit schedule property.

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(ii) Accordingly, the appeal is partly allowed by modifying the order dated 12.12.2023 passed on I.A.No.1/2023 in O.S.No.25178/2023 by the XXVIII Addl. City Civil Judge at Mayo Hall Unit (CCH-29), Bangalore.

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(iii) All IAs. in the appeal shall stand closed.

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List No.: 1 Sl No.: 12

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SD/(LALITHA KANNEGANTI) JUDGE

Sri.S.a. Bari v. Sri.Syed Taufiq Ahmmed

Case brief

What is this about?

What did the court decide?

Sri.S.a. Bari v. Sri.Syed Taufiq Ahmmed

Case brief

What is this about?

What did the court decide?

What the court decided

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