Ms. Priya Khanna Vs Tree House Apartment Owners Association

TREE HOUSE APARTMENT OWNERS ASSOCIATION, OFFICE AT 45/1, 1^ST CROSS, PROMENADE ROAD, BENGALURU-560042, REP. BY ITS AUTHORIZED SIGNATORY, MR. EDGAR DEMELLO. …RESPONDENT

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(BY SRI R. KIRAN, ADVOCATE FOR C/RESPONDENT)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC., AGAINST THE ORDER DATED 06.11.2025 PASSED ON I.A.NO.1 IN O.S.NO.8355/2023 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-16, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC, 1908.

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

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NC: 2026:KHC:18948 MFA No. 8712 of 2025

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This Miscellaneous First Appeal is filed calling in question the order dated 06.11.2025, passed on I.A.No.1 in O.S.No.8355/2023 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) (“Trial Court” for short), whereby the application filed by the plaintiff under order XXXIX Rules 1 and 2 CPC came to be allowed restraining the defendant-appellant from alienating the suit schedule property. An application filed by the defendant under Order XXXIX Rule 4 CPC came to be rejected.

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Brief facts:

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The respondent-plaintiff-Apartment Owners Association instituted a suit seeking recovery of maintenance charges alleged to be due from the appellant-defendant in respect of an apartment owned by her. Along with the suit, an application under Order XXXIX Rules 1 and 2 CPC was filed seeking an order of temporary

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injunction restraining the defendant from alienating the suit schedule property pending disposal of the suit.

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The case of the plaintiff is that the apartmentcomplex is governed by a deed of declaration and the provisions of Karnataka Apartment Ownership Act, 1972 (‘KAO Act’ for short) and that the defendant being an apartment owner is liable to pay maintenance charges which constitute a charge on the property. The appellantdefendant resisted the application contending inter alia that she is not a party to the deed of declaration, that the plaintiff's association is not binding upon her and that the suit is essentially one for recovery of money, and that an injunction restraining alienation cannot be granted in such a suit. The Trial Court, by the impugned order, allowed the application under Order XXXIX Rules 1 and 2 and rejected the application filed by the defendant under Order XXXIX Rule 4 CPC. Aggrieved by the same, the present appeal is filed.

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Learned Senior Counsel Sri Arun Kumar for the appellant submits that the application filed by the plaintiff is under Order XXXIX Rules 1 and 2 CPC, however, the nature of relief sought and the order passed by the Trial Court are in substance, in the nature of securing a money claim which could not have been granted in the guise of an injunction. It is contended that the suit itself is one for recovery of maintenance/money and therefore, if at all any protective order were to be sought, the same could only be within the scope of Order XXXVIII Rule 5 CPC and not under Order XXXIX Rules 1 and 2 CPC. It is further submitted that the Trial Court has failed to appreciate the effect of deed of declaration and the provisions of the KAO Act.

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Placing reliance on paragraph Nos.17, 19 and 25 of the agreement/deed of declaration, learned Senior Counsel would contend that all the apartment owners ought to have submitted to the Act and joined in the declaration for the same to have legal efficacy. In the

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present case, the appellant is admittedly not a signatory or party to the deed of declaration and, therefore, the plaintiff's association cannot bind the appellant under the said document. It is urged that the record itself indicates that the appellant is not a party to the deed of declaration and therefore, the plaintiff's association cannot claim to be a legal entity as against the appellant nor enforce the terms of declaration against her. Reference is made to paragraph Nos.21, 25 and 28 of the impugned order, to contend that the findings recorded therein are erroneous, inasmuch as the Trial Court has proceeded on the assumption that the appellant is governed by the deed of declaration though she is not a party thereto. It is further contended that under Section 2 of the KAO Act, the Act becomes applicable only when the property is duly submitted to the provisions of the Act by registration of a declaration, and in the absence of such declaration by or without the participation of the appellant, Section 5 relating to apartment ownership cannot be pressed into

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service against her. On these grounds, it is submitted that the application under Order XXXIX Rules 1 and Rule 2 was itself not maintainable and the impugned order granting injunction is unsustainable in law.

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Per contra , learned counsel for the respondent

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would contend that the objection as to the maintainability raised by the appellant is misconceived. It is submitted that the present proceedings are governed by the provisions of a special enactment, namely the KAO Act, and the rights and obligations of apartment owners, including recovery of common expenses and maintaining charges are traceable to the statutory framework under the said Act. Placing reliance on Section 7 of the KAO Act, it is contended that the amount due towards the maintenance and common expenses constitutes a statutory obligation and is enforceable in accordance with the provision of the Act and deed of declaration. It is submitted that once the property is submitted to the Act and an association is formed, the said association is

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entitled to enforce recovery of dues from the apartment owners, and such recovery need not be treated as mere money claim in strict sense so as to attract the limitations of Order XXXVIII Rule 5 CPC.

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Learned counsel further places reliance on paragraph Nos.17, 18 and 19 of the impugned order to contend that the Trial Court has, upon consideration of the material on record, recorded a finding that the deed of declaration governs the rights and liabilities of the apartment owners and that the defendant being an apartment owner cannot avoid her statutory obligation. It is submitted that the Trial Court has rightly held that the plaintiff has made out a prima facie case and balance of convenience lies in favour of protecting the interest of the association, particularly in preventing alienation of the property without discharge of the outstanding dues. It is therefore contended that the application under Order XXXIX Rules 1 and 2 is maintainable in the facts of the case and the impugned order does not suffer from any

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illegality or perversity warranting interference by this Court.

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This Court has carefully considered the

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submission and material on record. The point that arises for consideration is:

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“Whether the Trial Court was justified in granting an order of temporary injunction under Order XXXIX Rules 1 and 2 restraining the appellant from alienating the suit schedule property in a suit which is essentially for a recovery of money and when the binding nature of deed of declaration itself is in dispute?”

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The Trial Court while considering the application

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has recorded a finding that it is not necessary that all the apartment owners must execute the deed of declaration and that even a sole owner or majority of the owners can submit the property to the provisions of the KAO Act. It is further observed that in the present case, the deed of declaration dated 28.06.2019 has been executed by the

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majority of apartment owners, excluding the defendant, and that by virtue of such declaration, the property stands submitted to the provisions of the Act. The Trial Court has also placed reliance on clause 17 of the Agreement, which contemplates formation of an association and execution of

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a deed of declaration upon completion of the construction and on that basis has held that the contention of the defendant that she is not bound by the deed of declaration cannot be accepted at this stage.

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This Court is unable to concur with the findings recorded by the Trial Court for the following reason:

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i. Though it may be permissible in law for a sole owner or a promoter to execute a deed of declaration, the enforceability of such declaration against a particular apartment owner would necessarily depend upon whether such owner is bound by it. In the present case, the appellant has specifically contended that

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she is not an signatory to the deed of

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declaration and the Trial Court has also observed that the appellant-defendant is not a party to the deed of declaration, has presumed the applicability of the Act to the appellant, as since majority of the apartment owners are signatory, which is legally unsustainable.

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ii. The reliance placed on clause 17 of the Agreement is misconceived. The said clause merely contemplates that the parties shall, upon completion of construction, form an association and execute a deed of declaration. Such a clause, by itself whether would bind a party who has not executed a deed of declaration or not or can it be substitute the statutory requirement of submission under the Act is a matter of trial and evidence. The Trial Court has in effect treated the contractual stipulation as a creating a binding statutory obligation without examining whether the

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appellant has consented to or in as a way bound by such declaration.

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iii. The applicability of KAO Act is not automatic, it has to be only on valid submission of the property through a duly executed and registered deed of declaration. The question as to whether the provisions of Act can be enforced against the appellant requires consideration in view of the appellant denying and the absence of the appellant being party to such a declaration.

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iv. The nature of the suit is essentially one for recovery of money/maintenance charges. The plaintiff has not sought any declaration as regards the binding nature of the deed of declaration upon the appellant. In Patel

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Enterprises Vs. M.P. Ahuja¹ (Patel Enterprises) , it has held that the Court, while

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1 ILR 1992 KAR 3372

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considering an application under Order XXXIX Rules 1 and 2, must examine the nature and maintainability of the suit and that if the suit is not maintainable, no temporary injunction can be granted. The Trial Court has failed to undertake such examination and proceeded to grant an injunction. Fifthly, the order passed by the Trial Court, though styled as one under Order XXXIX Rules 1 and 2, in effect restrained alienation of the property in a dispute which is fundamentally monetary in nature. Such a relief cannot be granted as a substitute for proceedings under Order XXXVIII Rule 5 CPC. The Trial Court has thus misapplied the principles governing the grant of temporary injunction.

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v. The existence of a prima facie itself is a serious dispute inasmuch as the binding nature of the deed of declaration and the applicability of the

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Act to the appellant are yet to be established. The injury, if any, claimed by the plaintiff is compensable in terms of money. In such circumstances, requirement for grant of temporary injunction are not satisfied.

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The Apex Court in the case of Wander Ltd.

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and Another Vs. Antox India Pvt. Ltd.² (Wander Ltd.) and Dalpat Kumar and Another Vs. Prahlad Singh and

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Others³ (Dalpat Kumar), has held, if the orders of the Trial Court suffers from perversity, the same can be interfered by the Appellate Court and on perusal of the impugned order, this Court is of the considered opinion that the same warrants interference.

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For the foregoing reasons, the impugned order

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passed by the Trial Court has misdirected itself in law and exercised its discretion on erroneous premises and suffers from perversity warranting interference and the point

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2 1990 (Supp) SCC 727

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3 (1992) 1 SCC 719

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framed for consideration is answered accordingly and this

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Court pass the following:

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ORDER

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i. The Miscellaneous First Appeal is allowed .

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ii. The order dated 06.11.2025 passed on I.A.No.1 in O.S.No.8355/2023 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) is hereby set aside .

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iii. Application filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC stands rejected and the application filed by the defendant under Order XXXIX Rule 4 CPC stands allowed .

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iv. It is made clear that the observations made herein are only for the purpose of consideration of the interlocutory applications and shall not influence the Trial Court while adjudicating the suit on its merits.

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v. The Trial Court to dispose of the suit expeditiously as possible, in accordance with law.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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List No.: 1 Sl No.: 63

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AT

Ms. Priya Khanna v. Tree House Apartment Owners Association

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Ms. Priya Khanna v. Tree House Apartment Owners Association

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