Smt G Roopa Vs Sri Ankush Dadha

SRI. ANKUSH DADHA S/O. SRI M. MAHER DADHA, AGED ABOUT 39 YEARS, R/AT FLAT NO.105 AND 108, 7TH MAIN ROAD, 5TH BLOCK, JAYANAGAR EXTENSION, BENGALURU - 560 041.

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SRI. APOORVA DADHA, S/O. SRI M. MAHER DADHA, AGED ABOUT 36 YEARS, R/AT FLAT NO.105 AND 108, 7TH MAIN ROAD, 5TH BLOCK, JAYANAGAR EXTENSION, BENGALURU - 560 041.

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…RESPONDENTS

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(BY SRI. SRIRANGA S, SR. COUNSEL A/W SRI. S. KRISHNA, ADVOCATE FOR SMT. SUMANA NAGANAND, ADVOCATE FOR R1 AND R2)

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NC: 2025:KHC:46165 MFA No. 1034 of 2025

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HC-KAR

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.10.2024 PASSED ON I.A. NO. 1 IN O.S.NO. 712/2024 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (C.C.H.5), PARTLY ALLOWING THE I.A. FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The present appeal is filed by the appellant/plaintiff questioning the order passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.712/2024 dated 14.10.2024, by the Court of the IX Additional City Civil and Sessions Judge at Bangalore, whereby the trial Court has directed both the parties to maintain status quo until disposal of the suit.

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The parties are referred to as per their ranking before the trial Court.

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The plaintiff has filed a suit for permanent injunction against the defendants not to interfere with the

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plaint 'B' schedule property. It is the case of the plaintiff that defendants and one Sai Durga developers have entered into a Joint Development Agreement (herein after referred to as 'JDA' for short) on 17.02.2017 on the land belonging to the defendants. There are four flats were constructed as Flat Nos. 105, 106, 107 and 108. As per the terms of the JDA agreement, 50% of the flats belonged to defendants and remaining 50% to the developer. Accordingly, Flat Nos.105 and 108 falls to the share of the defendants and Flat Nos.106 and 107 falls to the share of developer. The said developer has sold Flat No.107 to one Sri. Jeevan Papa Venkataswamy through sale deed dated 06.01.2020 and sold the other Flat No.106 to the plaintiff through registered sale deed dated 17.10.2023. Thus, the plaintiff has become owner of flat No.106 which is 'B' schedule property in the apartment known as 'DADHA HOUSE'. But, the defendants are interfering with the possession of the plaintiff. Therefore, the plaintiff has filed suit for permanent injunction. Also

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filed an application under Order XXXIX Rule 1 and 2 of CPC praying to grant an order of temporary injunction. But the trial Court without granting an order of temporary injunction, has ordered both the plaintiff and defendants to maintain status quo . Being agreed by it, only granting an order of status quo , the plaintiff has preferred the present appeal.

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It is the case of defendants that there was a Joint Development Agreement between the defendants and the developer and there was sharing of 50% flats in between the defendants and the developer. But the said developer has not completed the construction of apartment in all respects and left abandoned at halfway of construction and thereafter, they have sold Flat Nos.106 and 107 to one Jeevan Papa Venkataswamy and plaintiff respectively and in this regard, the defendants have filed Commercial Suit in Com.O.S.No.810/2021 and the Commercial Court has granted an order of temporary injunction on 03.12.2021. Thereafter, the Commercial

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Court has vacated the interim order on 17.10.2023. Against the order vacating the temporary junction, the defendants have preferred Commercial Appeal No.420/2023 and this Court in the said appeal has ordered to maintain status quo . In the interregnum, after vacating the order of temporary injunction and order to maintain status quo by this Court in Commercial Appeal, the developer has sold Flat No.106 to the plaintiff. Also, it is submitted that the defendants are in possession over Flat No.106 and the purchase made by the plaintiff at Flat No.106 is nothing but harassing the defendants and causing interference with the possession of defendants. Therefore, the order of status quo granted by this Court is correct and justified, which needs no interference by this Court. Hence, prays to dismiss the appeal.

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Learned counsel appearing for the

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appellant/plaintiff submitted that the plaintiff is a bonafide purchaser of Flat No.106 of 'B' schedule property through registered sale deed dated 17.10.2023 for valuable

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consideration and the plaintiff is in possession over the property. The trial Court even after finding that the plaintiff has made out a prima facie case and balance of convenience and even if the order of temporary injunction is not granted, then the plaintiff would suffer injury or loss

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and upon giving finding on all the aspects in favour of the plaintiffs, passed an order to maintain status quo instead of granting an order of temporary injunction and by virtue of it, the defendants are trying to dispossess the plaintiff. Therefore, they have submitted there is necessity for an order of temporary injunction. Whatever may be the disputes between the defendants and the developer that is nothing to do with the plaintiff. As per JDA between the defendants and the developer, the developer's share is allotted as Flat Nos.106 and 107 as admitted by the defendants and accordingly the developer has sold the 'B' schedule property i.e., Flat No.106 to the plaintiff. Thereafter, the plaintiff is in possession over the suit schedule 'B' property. When this being the prima facie

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NC: 2025:KHC:46165 MFA No. 1034 of 2025

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case made out by the plaintiff and also observed by the trial Court in its order, granting an order to maintain status quo is not correct. Hence, prays to allow the appeal and prays for granting an order of temporary injunction.

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On the other hand, learned Senior Counsel

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appearing for the respondents/defendants submitted that the developer has not constructed the apartment to full extent and in half way has abandoned the construction of apartment and thereafter, the defendants have completed construction and hence, the developer has no right to sell the flats and in this regard, Commercial Suit is pending. In spite of it, knowing all these developments, the plaintiff has purchased the 'B' schedule property. But possession has not been handed over to the plaintiff. Therefore, plaintiff is not a bona fide purchaser and he is nothing but giving harassment to the defendants. It is also submitted that complaint and counter complaints were filed against the plaintiff and defendants before the police station and they are still pending for investigation. Also, the

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defendants have filed complaint before the police against

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the developer and the same is still pending for investigation. Therefore, it is submitted that since the trial Court found that the defendants are in possession, ordered to maintain status quo is correct and justifiable.

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Learned counsel for the defendants/

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respondents places reliance on the judgments of the Hon'ble Supreme Court in the case of Wander Ltd. and another vs. Antox India P. Ltd¹ and in the case of

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Mohd. Mehtab Khan and others vs. Khushnuma

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Ibrahim Khan and others² .

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Heard the arguments from both sides and

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perused the materials furnished in the appeal.

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The following points arises for consideration of

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this Court are:

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1 1990 SCC Online SC 490

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2 (2013) 9 SCC 221

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HC-KAR

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(i) Whether, under the facts and circumstances of the case, the plaintiff makes out prima facie case on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(ii) Whether, under the facts and circumstances of the case, the plaintiff make out case of balance of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted then plaintiff would suffer any irreparable loss or injury?

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The trial court has assigned the reasons that

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there are lot of disputes between the defendants and the developer and in this regard, the defendants have filed Commercial Suit and the Commercial Court has granted an order of temporary injunction. subsequently, the said order of temporary injunction was vacated. Against the order of temporary injunction, Commercial Appeal

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No.420/2023 was filed and in that, an order to maintain status quo was granted. In the interregnum period between vacating order of temporary injunction and ordering to maintain status quo granted, the developer has sold the 'B' schedule property i.e., Flat No.106 to the plaintiff. Therefore, the issue between the defendants and developer is to be resolved in the said Commercial Suit and whether the plaintiff is a bonafide purchaser or not is decided by the Court. Therefore, passed an order to maintain status quo by both the parties till disposal of the suit.

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Upon considering the materials and submissions

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made by both the parties, it is not dispute that there was a Joint Development Agreement between the defendants and the developer dated 17.02.2017 for construction of apartment and also as per the agreement, the shares are assigned as 50% to the defendants and 50% to the developer. Accordingly, 4 flats were constructed as Flat Nos.105, 106, 107 and 108. Also, it is not disputed that

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the Flat Nos.105 and 108 falls to the share of the defendants and Flat Nos. 106 and 107 falls to the share of the developer. These factual aspects are not disputed. It is the case of the defendants that the said developer has not completed the construction fully and left abandoned the construction in halfway and therefore, the defendants were constrained to engage other contractor and completed the construction at the cost of the defendants. Thus, the defendants have sustained loss and in this regard, a dispute is pending in Commercial Suit No. 810/2021 between the defendants and the developer. In the said Commercial Suit, there was an order of temporary injunction, but subsequently, it was vacated on 07.10.2023. Thereafter, after 10 days i.e., on 17.10.2023, the developer had sold Flat No. 106 i.e., 'B' schedule property to the plaintiff through registered sale deed. Against the order vacating interim of the injunction dated 07.10.2023, the defendants have preferred appeal in Commercial Appeal No.420/2023 and this Court has

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granted an order to maintain status quo on 24.11.2023.

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But in the meantime on 17.10.2023, the Plaintiff has purchased the 'B' schedule property i.e., Flat No.106 through registered sale deed. Hence, technically there was no embargo on the part of plaintiff to purchase 'B' schedule property. When this being the fact, now the question is who is in possession over the Suit Schedule 'B' property i.e., Flat No.106. Prima facie , the plaintiff has become owner of suit 'B' schedule property by virtue of registered sale deed dated 17.10.2023. Whether this sale made by the developer to the plaintiff is a bonafide or giving harassment to the defendants is a question to be considered before the trial in the suit. But prima facie , the plaintiff has become owner of suit 'B' schedule property i.e., Flat No.106 by virtue of sale deed. Also, it is not disputed that Flat No.106 was allotted to the share of the developer and the developer accordingly after vacating the order of temporary injunction, has sold 'B' schedule property i.e., Flat No.106 to the plaintiff.

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At this stage whatever may be the disputes between the defendants and developer is nothing to do with the plaintiff. Also there were complaint and counter complaints between the defendants, developer and the plaintiff. Both the parties have produced certain documents and photographs. It is dispute between the developer and the defendants that the developer has not constructed the apartment to full extent and left abandoned. Therefore, the defendants have invested the amount and completed the construction of apartment. All these disputes are pertaining to the defendants and the developer and in this regard, the case is pending in the Commercial Court.

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Upon complaint and counter complaints before the police, panchanama is conducted. But there is panchanamma by the police also which is shown that both plaintiff and defendants are in possession that is argued because of the order of temporary injunction is granted

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but subsequently, it was vacated and thereafter, in Commercial Appeal, an order to maintain status quo was granted. Therefore, in Panchanama, there is showing a fluctuation of possession based on the interim orders passed by the Courts.

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Both parties have produced certain

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photographs. Some photographs are showing that there was an attempt in removing the name plates and breaking open the lock and according to the counsel for the appellant/plaintiff, the defendants have used goons to threaten the plaintiff and tried to driven out them forcefully. But upon considering the admitted facts as above discussed, the dispute is mainly between the defendants and the developer and litigations are pending between them. The plaintiff is a purchaser through registered sale deed. Technically, the developer has sold Flat No.106 i.e., 'B' schedule property to the plaintiff after vacating the order of temporary injunction and before the order to maintain stutus quo by this Court in Commercial

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Appeal. Before that, as per JDA, Flat No.106 was shared to the developer.

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Considering all these aspects, the plaintiff has purchased the flat through sale deed and also upon producing the photographs, complaints, counter complaints and also panchamana drawn by the police, prima facie it is found that the plaintiff is in possession over the 'B' schedule property. Therefore, to protect the possession of the plaintiff over the 'B' schedule property, it is necessary to grant an order of temporary injunction but order to maintain status quo is not sufficient. Hence, the plaintiff has made out a prima facie and balance of convenience and if an order of temporary injunction is not granted, then the plaintiff would be put into loss and injury as there was threat of forcefully driving out of the plaintiff from the flat on the suit schedule 'B' property. Therefore,

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I deem it appropriate to grant an order of temporary injunction to protect the plaintiff's possession in the property till disposal of the suit. Accordingly, my answer to

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point Nos.1 to 3 is in the affirmative . This Court has considered the judgments placed by the learned counsel for the respondents and principles therein are also followed in this case. Therefore, the appeal is liable to be allowed . Hence, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed .

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(ii) The order dated 14.10.2024 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.712/2024 by the Court of the IX Additional City Civil and Sessions Judge at Bangalore, is here by setaside.

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(iii) An order of temporary injunction is granted restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the 'B' schedule property.

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(iv) Whatever the observations made above shall not be construed as merits, as the same are only on the basis of submissions made by the leaned counsels and the observations made by the trial Court for the purpose of considering

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the application for temporary injunction and prima facie materials produced. Therefore, the trial Court shall decide the suit independently on merits of the suit in accordance with law after receiving evidence.

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(v) The trial Court is directed to dispose of the suit as expeditiously as possible.

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(vi) It is directed the plaintiff that by taking advantage of the order of temporary injunction, the plaintiff shall not disturb other common area, utility services and flats shared to defendants.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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KA

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List No.: 1 Sl No.: 35 CT: BHK

Smt G Roopa v. Sri Ankush Dadha

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Smt G Roopa v. Sri Ankush Dadha

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