Smt. Faziya Farooq Vs Sri Zubair Anwar

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NC: 2025:KHC:45732 MFA No. 5118 of 2025 C/W MFA No. 2542 of 2020

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1 -

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF NOVEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5118 OF 2025 (CPC) C/W

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MISCELLANEOUS FIRST APPEAL NO.2542 OF 2020 IN MFA No.5118/2025

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BETWEEN:

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SMT. FAZIYA FAROOQ AGED ABOUT 44 YEARS, W/O. SRI MOHAMMED ADIL AMEEN, R/AT NO.117, CUNNINGHAM ROAD, OPP. CIE LIMITED, BENGALURU - 560 001. REP. BY HER GPA HOLDER MR. FAROOQ NOOR MOHAMMED AGED ABOUT 75 YEARS S/O LATE D. NOOR MOHAMMED

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…APPELLANT

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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(BY SRI. SAMPATH A, ADVOCATE)

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AND:

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SRI. ZUBAIR ANWAR AGED ABOUT 52 YEARS, S/O. ANWAR NOOR MOHAMMED R/AT FLAT NO.734, EMBASSY HABITAT NEXT TO MOUNT CARMEL COLLEGE, PALACE ROAD, VASANTNAGAR, BENGALURU - 560 052.

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SRI. ABUBAKER ANWAR AGED ABOUT 47 YEARS, S/O. SRI ANWAR NOOR MOHAMMED

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2 - NC: 2025:KHC:45732 MFA No. 5118 of 2025 C/W MFA No. 2542 of 2020

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HC-KAR

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R/AT NO.201, 7^TH STEPHEN'S ROAD, FRAZER TOWN, BENGALURU - 560 005.

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…RESPONDENTS

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(BY SRI. M.D.RAGHUNATH, ADVOCATE)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 09.06.2025 PASSED ON IA IN O.S.NO.4241/2019 ON THE FILE OF THE 24 ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-6, REJECTING THE APPLICATION FILED UNDER U/O.39 RULE 1 AND 2 OF CPC, 1908.

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IN MFA NO.2542/2020

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BETWEEN:

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ZUBAIR ANWAR S/O SRI. ANWAR NOOR MOHAMMED, 46 YEARS, FLAT NO 734, EMBASSY HABITAT, NEXT TO MOUNT CARMEL COLLEGE, PALACE ROAD, VASANTHANAGAR, BENGALURU – 560 052

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...APPELLANT

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(BY SRI. S.G. BHAGAVAN, ADVOCATE)

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AND:

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MRS. FAIZYA FAROOK W/O MR MOHAMMED ADIL AMEEN, 38 YEARS, NO 117, CUNNINGHAM ROAD, OPP CIE LTD. BENGALURU – 560 052. REPRESENTED BY HER GPA HOLDER MR. FAROOK NOOR MOHAMMED

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...RESPONDENT

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(BY SRI.A.SAMPATH- GPA HOLDER)

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THIS MFA FILED U/O. 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED. 18.02.2020, PASSED ON IA.NO.1, IN O.S. NO.4241/2019, ON THE FILE OF THE XXXIV

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3 - NC: 2025:KHC:45732 MFA No. 5118 of 2025 C/W MFA No. 2542 of 2020

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HC-KAR

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE IA.NO.1 FILED BY THE PLAINTIFF U/O.39 RULE 1 AND 2 OF CPC.

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THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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MFA No.5118 of 2025 is filed by the plaintiff in O.S.No.4241/2019 challenging the order dated 09.06.2025 passed on interlocutory application (I.A) filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.4241/2019 on the file of XXIV Additional City Civil and Sessions Judge, Bengaluru City (CCH No.8)¹ , thereby, I.A filed for seeking to grant an order of temporary injunction was rejected. Whereas, MFA No.2542 of 2020 filed by defendant No.1 in O.S.No.4241/2019 challenging the order dated 18.02.2020 passed on I.A.No.1 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.4241/2019 on the file of XXXIV Additional City Civil and Sessions Judge, Bengaluru, thereby, the

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1 hereinafter referred to as ‘the Trial Court’ for short

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HC-KAR

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application filed for seeking to grant an order of ad-interim exparte temporary injunction was allowed.

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For the sake of convenience and easy

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reference, the parties are referred to as per their rankings before the Trial Court.

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The application I.A.No.1 filed by the plaintiff against the defendants seeking to grant an order of exparte ad-interim temporary injunction was allowed restraining the defendants from interfering with the plaintiff’s right to use the sump tank situated in the ‘C’ schedule property till disposal of the suit. The application I.A. filed by the plaintiff for grant of an order of temporary injunction restraining the defendants from locking the gate provided on the northern side of the ‘A’ and ‘B’ schedule properties facing Armugam Mudaliar Lane and from removing the CCTV cameras put up on the ‘A’ schedule property facing towards the common passage morefully detailed in the ‘C’ schedule property was rejected.

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HC-KAR

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Sri. S.G. Bhagavan, learned counsel appearing

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for the appellants in MFA No.2542 of 2020 submitted that if a suitable direction is issued to the Trial Court to dispose of the suit as expeditiously as possible, that would meet the ends of justice. Hence, prays to issue directions for time bound disposal.

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Considering MFA No.5118 of 2025, which is preferred against the order passed on I.A. filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, rejecting the application filed for making use of the common passage is concerned, it is an admitted fact that the plaintiff is owner of the ‘A’ schedule property and defendant No.1 is owner of the ‘B’ schedule property. There is a common passage between the ‘A’ and ‘B’ schedule properties of 8 feet width. What the plaintiff is praying for is to keep open the gate put up on the northern side of 8^th passage till 11.00 p.m. As the area towards southern side is declared as no parking zone; therefore, the only access to the shop of the plaintiff is

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6 - NC: 2025:KHC:45732 MFA No. 5118 of 2025 C/W MFA No. 2542 of 2020

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HC-KAR

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through the northern side gate and now the gate is closing at 8.00 p.m. If the said gate is opened till 11.00 p.m., then the plaintiff would be able to shift the materials through this gate till 11.00 p.m. Hence, at the most, it is

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prayer of the plaintiff to keep the gate open till 11.00 p.m.

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Defendant No.1 in the written statement has admitted that the said 8 feet passage is the common passage. Though the learned counsel for the defendants submitted that it is not a common passage and by placing reliance on the materials such as gift deed and lease deed that the said lane is private lane of site No.729, Chickpet building. But in the written statement, defendant No.1 admitted that it is an 8 feet common passage. Whether this is made inadvertently or not, whether it is private lane

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is the question for trial to be considered in the suit, but prima facie, the admission made by defendant No.1 is that it is a common passage as found in paragraph No.7 of the written statement.

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HC-KAR

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Considering these aspects, any how the gate is

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open till 8.00 p.m. and if the said gate is kept open till 11.00 p.m. for making the plaintiff to shift the materials through the gate that would not cause much injury or loss to defendant No.1. Hence, the only limited prayer made by the plaintiff is to keep open the gate till 11.00 p.m. and thereafter let the defendant No.1 lock the gate at 11.00 p.m. is to be considered positively. Therefore, the question is only for extension of 3 hours’ time keeping open the gate for another 3 hours. Hence, the appeals be disposed off with a direction to defendant No.1 to keep the gate open till 11.00 p.m. and after 11.00 p.m., defendant No.1 may lock the gate; till then, the plaintiff has access to make use of the gate towards the northern side.

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This access made to the plaintiff till 11.00 p.m. shall not enable the plaintiff to claim any right over it till decision in the suit. After locking the gate at 11.00 p.m., let defendant No.1 keep the keys of the gate himself.

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