Mr. Asif Pasha. H. a. Vs Mr. Nawaz Ulla Shariff

MR. ASIF PASHA. H. A. S/O LATE ABDUL SATTAR, AGED ABOUT 53 YEARS, R/AT NO.44, 18^TH CROSS, HALL ROAD, NEAR FIRDOSE MASJID, SAGAYAPURAM, BENGALURU – 560 005. …APPELLANT (BY SRI. NAVEED AHMED.,ADVOCATE)

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AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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MR. NAWAZ ULLA SHARIFF S/O LATE MAHABOOB ULLA SHARIFF, AGED ABOUT 68 YEARS, R/AT NO.301, MUZAMMIL RESIDENCY, UMAR NAGAR, A.C. POST, BENGALURU – 560 045

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MR. ISMAIL SHARIFF S/O SHAIK MOHIUDDIN AGE ABOUT 60 YEARS R/AT 51/1, ZAM-ZAM LAYOUT, BASAVALINGAPPA NAGAR, NEAR SAMPIGEHALLI, YELAHANKA HOBLI, BANGALORE – 560 064

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MR.NAVEED AHMED S/O LATE MR. ANWAR AHMED AGE ABOUT 58 YEARS

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NC: 2025:KHC:47477 MFA No. 8144 of 2025

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HC-KAR

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R/AT 41, VENKATAPPA ROAD, TASKER TOWN CROSS, BANGALORE – 560 001.

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…RESPONDENTS

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(BY SRI. T.SESHAGIRI RAO & SRI. SUNIL. S. RAO, ADVOCATES FOR C/R1)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 05.08.2025 PASSED ON I.A.NO. III AND II IN O.S 3391/2025 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-32), REJECTING THE IA NO. II FILED U/O.39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ALLOWING THE I.A.NO. III FILED UNDER ORDER XXXIX RULE 4 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION ING, 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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Though the appeal is listed for admission, with consent of both the learned counsels appearing for the parties, the matter is taken up for final disposal.

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This appeal is filed by the plaintiff questioning

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the order dated 05.08.2025 passed on I.A.No.II filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, seeking to grant an ad-interim order of exparte

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3 - NC: 2025:KHC:47477 MFA No. 8144 of 2025

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HC-KAR

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temporary injunction and I.A.No.III filed under Order XXXIX Rule 4 of CPC to vacate the exparte ad-interim order of temporary injunction in O.S.No.3391/2025 on the file of XX Additional City Civil and Sessions Judge (CCH-32), Bengaluru City¹ , thereby, the application filed for seeking to grant an ad-interim order of temporary injunction was rejected and the application filed to vacate the exparte ad-interim order of temporary injunction was allowed.

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The suit is filed by the plaintiff for mandatory injunction for removal of the construction made on the suit schedule property and for permanent injunction praying to restrain defendant Nos.1 and 2 and those claiming through them from interfering with the plaintiff’s exclusive possession over the suit schedule property. The prayer made is for mandatory injunction for removal of the structure made on the suit schedule property. When the plaintiff has filed the suit for relief of mandatory injunction

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

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NC: 2025:KHC:47477 MFA No. 8144 of 2025

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HC-KAR

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for removal of structure, unless the question on which property the structure is constructed is to be decided and who is the owner, there is no question of grant of mandatory injunction and permanent injunction as sought for.

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For which, the learned counsel for the appellant/plaintiff submitted that he will make appropriate amendments in the plaint and seek relief of declaration. Hence, when according to the pleadings in the plaint and relief claimed, the maintainability of the suit is in question. The Trial Court is correct in rejecting the application filed for grant of ad-interim order of exparte temporary injunction.

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