Smt. Meharunnisa W/O Sayyed Umar vs Smt. Shahajadi W/O Sayed Hanifsha
2021 Latest Caselaw 5263 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 02ND DAY OF DECEMBER, 2021

                       BEFORE

          THE HON'BLE MRS.JUSTICE M.G.UMA

                M.F.A.NO.101133/2021
BETWEEN

1.    SMT. MEHARUNNISA W/O SAYYED UMAR
      AGE 72 YEARS, OCC. HOUSEHOLD
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR
      DIST: UTTARA KANNADA 581334.

2.    JAMAL AJAD S/O SAYYED UMAR
      AGE 55 YEARS, OCC. BUSINESS
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR
      DIST: UTTARA KANNADA 581334.

3.    SMT. BATTUL W/O AJIS KHAN
      AGE 52 YEARS, OCC. HOUSEHOLD
      R/O. SARALAGI, NEAR URDU SCHOOL
      TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.

4.    SMT. RAMIZA W/O SHAFI SHAIKH
      AGE 50 YEARS, OCC. HOUSEHOLD
      R/O. HONMAVU, TQ. KUMTA
      DIST: UTTARA KANNADA 581332.

5.    SMT. NOORJAHAN W/O ABDUL RAHOOF MANIYAR
      AGE ABOUT 45 YEARS, OCC. HOUSEHOLD
      R/O. NOORANI MOHALLA, PO:CHANDAVARA,
      TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.

6.    SMT. VAHIDA W/O ASLAM KHAN
      AGE 43 YEARS, OCC. HOUSEHOLD
      R/O. SARALAGI, NEAR MASZID,
      TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.

7.    SMT. SHAHIDA W/O JABBAR SHAIKH
      AGE 40 YEARS, OCC. HOUSEHOLD
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      R/O. ASHURKHAN GALLI, TQ: HONNAVAR,
      DIST: UTTARA KANNADA 581334.

8.    SMT. JABEEN W/O MUBEEN SHAIKH
      AGE 31 YEARS, OCC. HOUSEHOLD
      R/O. KODI, NEAR MASZID,
      TQ: KUNDAPURA, DIST: UDUPI-576201.

9.    SMT. SAPURABHI W/O SAYED KARIM
      AGE ABOUT 67 YEARS, OCC. HOUSEHOLD
      R/O. ASHURKHAN GALLI, TQ: HONNAVAR
      DIST: UTTARA KANNADA 581334.
                                            ...APPELLANTS
(BY SRI.NARAYAN.V.YAJI, ADVOCATE)

AND

1.    SMT. SHAHAJADI W/O SAYED HANIFSHA
      AGE ABOUT 65 YEARS, OCC. HOUSEHOLD
      R/O. BUNDER ROAD, TQ. HONNAVAR
      DIST. UTTARA KANNADA 581334.

2.    SAYED HAMEED S/O SAYED HANIFSHA
      AGE ABOUT 43 YEARS, OCC. SERVICE
      R/O. BUNDER ROAD, TQ. HONNAVAR
      DIST. UTTARA KANNADA 581334.

3.    SAYED MAMTAZA ALI S/O SAYED HANIFSHA
      AGE ABOUT 48 YEARS, OCC. SERVICE
      R/O. BUNDER ROAD, TQ. HONNAVAR
      DIST. UTTARA KANNADA 581334.

4.    SMT. SAHIRA W/O DAWOOD SHAIKH
      AGE ABOUT 44 YEARS, OCC. HOUSEHOLD
      R/O. HALDIPUR, TQ. HONNAVAR
      DIST. UTTARA KANNADA 581334.

5.    SMT.SHABANA SHAIKH MUKTIYAR
      AGE ABOUT 41 YEARS, OCC. HOUSEHOLD
      R/O. HALKAR, TQ. ANKOLA
      DIST. UTTARA KANNADA 581334.

6.    SAYED MARTHUZA S/O SAYED FAKIR
      AGE ABOUT 69 YEARS, OCC:RETIRED DRIVER
      R/O. KHAJIMANGIL, BANDEHALLI, TQ. HONNAVAR
      DIST. UTTARA KANNADA 581334.
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7.    SAYED MUTALEEF S/O SAYED FAKIR
      AGE ABOUT 65 YEARS, OCC. DRIVER
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

8.    SMT. ZARINA W/O SAYED HAROON
      AGE ABOUT 55 YEARS, OCC. HOUSEHOLD
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

9.    SMT. SHAMIMA W/O SAYED HAROON
      AGE ABOUT 60 YEARS, OCC. HOUSEHOLD
      R/O. TARSI, TQ. KUNDAPUR
      DIST. UTTARA KANNADA 581332.

10.   KUMARI. NAJABU SAIRA D/O SAYED HAROON
      AGE ABOUT 19 YEARS, OCC. STUDENT
      R/O. TARSI, TQ. KUNDAPUR
      DIST. UTTARA KANNADA 581332.

11.   SAYED FAHAD S/O SAYED HAROON
      AGE ABOUT 30 YEARS, OCC. BUSINESS
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

12.   SAYED FAISAL S/O SAYED HAROON
      AGE ABOUT 25 YEARS, OCC. BUSINESS
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

13.   SMT. LUBANA SAYED D/O SAYED HAROON
      AGE ABOUT 24 YEARS, OCC. STUDENT
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

14.   SAMI SAYED S/O SAYED HAROON
      AGE ABOUT 19 YEARS, OCC. STUDENT
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

15.   SAYED MOOSA S/O SAYED FAKIR
      AGE ABOUT 57 YEARS, OCC. ENGINEER
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.
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16.   SAYED ZAFAR SADIKA S/O SAYED FAKIR
      AGE ABOUT 53 YEARS, OCC. SERVICE
      R/O. RNS QUARTERS NO.13, VI CROSS
      KODANGE, B.C.ROAD, (D.K)
      DIST. UTTARA KANNADA.

17.   SMT.BEGAM SHA SHAIKH MOOSA
      AGE ABOUT 70 YEARS, OCC. STUDENT
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

18.   SMT.FATIMA SHA W/O SAYED KASHIM
      AGE ABOUT 65 YEARS, OCC. HOUSEHOLD
      R/O. RAMATEERTH, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

19.   SMT.AMINABI ABDUL RASUL
      AGE ABOUT 51 YEARS, OCC. HOUSEHOLD
      R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

20.   SAYED HASAN S/O SAYED HANIFSHA
      AGE ABOUT 33 YEARS, OCC. SERVICE
      R/O. BUNDAR ROAD, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.

21.   ASPAK S/O SAYED HANIFSHA
      AGE ABOUT 33 YEARS, OCC. SERVICE
      R/O. BUNDAR ROAD, TQ. HONNAVAR,
      DIST. UTTARA KANNADA 581334.
                                         .....RESPONDENTS

      (BY SRI.RAGHAVENDRA.A.PUROHIT, ADV FOR R1 TO 7
       AND 15 TO 21;
      SERVICE OF NOTICE TO R8, 9, 10, 13 & 14- SERVED;
      SERVICE OF NOTICE TO R11 & 12-HELD SUFFICIENT)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O XLIII
RULE 1 (A) OF THE CIVIL PROCEDURE CODE, PRAYING TO SET
ASIDE THE ORDER PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HONNAVAR
DATED 02.09.2021 ON IA NO. 5 IN OS NO. 8/2016 AS IT IS
ILLEGAL.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                     : JUDGMENT :

Heard learned counsel Sri.Narayan.V.Yaji, for the

appellants and Sri.Raghavendra.A.Purohit, for the

respondent Nos.1 to 7 and 15 to 21 on merits.

2. Appellants are challenging the order dated

02.09.2021 passed in O.S.No.08/2016 by the learned

Senior Civil Judge and JMFC., Honnavar (hereinafter

referred as 'the trial Court') appointing defendant

No.12 as receiver to collect the rent/income from the

schedule properties and to deposit the same before

the Court, till disposal of the suit.

3. Brief facts of the case are that respondent

Nos.1 to 5 for plaintiffs filed O.S.No.8/2016, before

the Senior Civil Judge Court at Honnavara, against the

appellants, who are the legal representatives of the

deceased defendant No.1 and against respondent

Nos.6 to 21, who are defendant Nos.3 to 20, seeking

declaration that the plaintiffs and defendant Nos.19

and 20 together entitled to 2/19th share in the suit

schedule properties and for partition and separate

possession of the same by metes and bounds,

directing defendant Nos.1, 2, 12, 17 and 18 to render

accounts of the firm by name M/s Hotel Good Luck and

to appoint the commissioner for taking the accounts of

the firm and also for mesne profits from the date of

suit till handing over the possession of the property. It

is stated that the schedule properties include the rent

generating properties, which are in occupation of

various tenants and also a Hotel and Lodging by name

M/s Hotel Good Luck, which is also generating income.

The plaintiff after filing the suit filed I.A.No.5, praying

for appointment of a receiver to collect the rents and

profits generated from the schedule properties and to

deposit the same before the Court till disposal of the

suit. The said application was came to be allowed vide

order dated 02.09.2021, which is called in question in

this appeal by the legal representatives of deceased

defendant No.1.

4. Heard learned counsel Sri.Narayan.V.Yaji,

for the appellants and Sri.Raghavendra.A.Purohit, for

the respondent Nos.1 to 7 and 15 to 21.

5. Perused the material on record.

6. The point that would arise for my

consideration is as follows:

"Whether the impugned order dated 02.09.2021 on I.A.No.V passed in O.S.No.08/2016 on the file of learned Senior Civil Judge and JMFC Court at Honnavar, against the appellants, is liable to set aside?

7. My answer to the above point is in the

'Negative' for the following:

: REASONS :

8. Respondent Nos.1 to 5 are the plaintiffs

filed the suit for declaration that they are entitled for a

share in the schedule properties and for partition and

separate possession of the same. They also claimed

accounts of the firm by name M/s Good Luck and filed

I.A.No.V under Order XL Rule 1 of Civil Procedure

Code. Considering the contention of the parties, the

trial Court appointed defendant No.12, as the receiver

to collect the rent and directed him to deposit the

same before the trial Court. It is stated that defendant

No.12 is also a family member and he is the member

of the firm in question. It is not the contention of the

parties that defendant No.12 is misappropriating the

amount that is being generated as rent/profit from

various properties. However, he is accountable for the

income generated from the schedule properties. From

the contentions taken by both the learned counsels, I

could not make out any serious objection for

defendant No.12 being the receiver, to collect the

income/rent/profits in his capacity as one of the

partners of the firm and to deposit the same before

the court, which will be subject to the final result of

the suit. When the entitlement of the plaintiffs for

share and accounts are to be decided by the trial

Court, the income generated from the properties are

to be collected, deposited and accounted for.

Therefore, I am of the opinion that the impugned

order passed by the trial Court is not required to be

interfered with. Defendant No.12, who is appointed as

receiver under the impugned order is directed to

collect the rent/profit/income from the schedule

properties and to deposit the same before the Court

regularly. It is made clear that defendant No.12 is

accountable to the proceeds collected by him. The

amount so deposited before the trial Court is subject

to the final result of the suit.

9. In view of the above, the appeal is disposed

of. Hence, I answered the above point in the negative

and proceeded to pass the following:

ORDER

The appeal is disposed off.

The trial Court is directed to dispose of the suit

expeditiously. It is needless to say that all the parties

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should cooperate with the trial Court in such

expeditious disposal of the suit.

Sd/-

JUDGE AM/-