Mr.Pvr Sai Kiran vs Mr.Biswajit Kumar Choudhary
2022 Latest Caselaw 3868 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 07 T H DAY OF MARCH, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

          MFA NO.4523 OF 2021 (CPC)

BETWEEN:

Mr. PVR Sai Kiran,
S/o Nageshwara Rao,
Aged about 38 years,
R/at Flat No.430, 'B' Block,
"SLS Signature",
Vid ya Vikas School Road ,
Kaverapp a Layout,
Kadub esanahalli,
Panathur, Varthur Hobli,
Beng aluru-560103.
                                          ...Appellant
(By Sri H.V.Harish, Advocate)

AND:

1.   Mr. Biswajit Kumar Choud hary,
     Aged about 33 years,
     R/at Flat No.G-30
     "SLS Signature",
     Vidya Vikas School Road ,
     Kaverappa Layout,
     Kadub esanahalli,
     Panathur, Varthur Hobli,
     Beng aluru East Taluk,
     Beng aluru-560103.

2.   Mr. Subhadip Basu
     Roy Chowdhury,
     S/o Swap an Basu
     Roy Chowdhury,
                         :: 2 ::


     Aged about 36 years,
     R/at Flat No.212,
     "SLS Signature",
     Vidya Vikas School Road ,
     Kaverappa Layout,
     Kadub esanahalli,
     Panathur, Varthur Hobli,
     Beng aluru East Taluk,
     Beng aluru-560103.

3.   Mr. Sib a Shankar Rout,
     S/o Gag an Chand ra Rout,
     Aged about 39 years,
     R/at Flat No.312,
     "SLS Signature",
     Vidya Vikas School Road ,
     Kaverappa Layout,
     Kadub esanahalli,
     Panathur, Varthur Hobli,
     Beng aluru East Taluk,
     Beng aluru-560103.

4.   Mr. Ramesh Chandra
     Srivastava S/o U.P.Lal,
     Aged about 42 years,
     R/at Flat NO.G-301,
     "SLS Signature",
     Vidya Vikas School Road ,
     Kaverappa Layout,

     Kadub esanahalli,
     Panathur, Varthur Hobli,
     Beng aluru East Taluk,
     Beng aluru-560103.
                                        ...Respondents

(By Sri Jose K Sebastian, Advocate for R1 to R4)

     This MFA is filed under Order 43 Rule 1(r) of
CPC, ag ainst the order d ated 25.08.2021, passed on
I.A.No.I and III in O.S.No.2115/2021, on the file of
                              :: 3 ::


the   LXVII    Additional   City   Civil    &   Sessions    Judge,
Beng aluru City (CCH-68) rejecting IA No.1 filed under
Order 39 Rules 1 and 2 read with Section 151 of CPC
and allowing IA No.III filed under Order 39 Rule 4
read with Section 151 of CPC.

      This MFA coming on for admission this d ay, the
Court delivered the following:

                           JUDGMENT

Heard Sri H.V.Harish, learned counsel for the

appellant and Sri Jose K Sebastian, learned

counsel for caveators/respondents 1 to 4.

2. This appeal is filed by the plaintiff being

aggrieved by the order dated 25.08.2021 passed

by the LXVII Additional City Civil and Sessions

Judge, Bengaluru city (CCH-68) in

O.S.No.2115/2021, dismissing the plaintiff's

application for temporary injunction filed under

Order XXXIX Rules 1 and 2 CPC.

3. In a suit for bare injunction against the

defendants, the plaintiff filed an application for

temporary injunction under Order XXXIX Rules 1 :: 4 ::

and 2 CPC to restrain the defendants from

disconnecting the essential services. In the first

instance the trial Court granted exparte order of

temporary injunction and thereafter the

defendants made an application under Order

XXXIX Rule 4 CPC for vacating the said order. By

the impugned order, the trial Court dismissed IA

No.I filed by the plaintiff under Order XXXIX Rules

1 and 2 CPC and allowed IA No.III filed by the

defendants under Order XXXIX Rule 4 of CPC.

4. The plaintiff is the owner of an

apartment in SLS Signature apartments and that

the defendants 1 to 4 are also owners of the other

apartments. The plaintiff's main case is that the

defendants are unauthorizedly collecting

maintenance charges from all the apartment

owners. According to law, an association of

apartment owners must be formed. No association

has been formed. The defendants have no

authority to collect maintenance charges. On the :: 5 ::

other hand, defendants 1 to 4 contend that they

are the office bearers of an association which has

come into existences according to law. The

defendants have contended so in the written

statement, but it appears that they have not

produced any document in proof of an association

having come into existence according to law.

5. The order sheet of this appeal dated

12.10.2021 indicates that the appellant was

directed to deposit Rs.1,00,000/- without

prejudice to his rights to see that the essential

services to his apartment is not disconnected.

Accordingly, the appellant deposited Rs.1,00,000/-

in the office of this Court on 22.10.2021.

6. It is to be stated that whether or not, the

defendants are the office bearers of a legally

constituted association of the apartment owners,

the appellant has to pay maintenance charges

every month. If he does not pay, other apartment :: 6 ::

owners will have to suffer. In fact the Trial Court

has said that since the appellant is using the

amenities, he has to pay maintenance charges.

This observation of the Trial Court cannot be said

to be wrong. The appellant has to pay charges for

the amenities that he is using. In this view, I do

not find any good ground to interfere with the

impugned order.

7. The appellant is hereby directed to

deposit monthly maintenance charges in the trial

Court without fail for every month till disposal of

the suit. This deposit is of-course without

prejudice to the rights of the appellant.

8. If there is any arrears, it shall also be

deposited within fifteen (15) days from today. The

appellant shall also file a memo of calculation

regarding payments that he has made before this

Court and the Trial Court. If the deposit is made :: 7 ::

regularly by the appellant, the essential services

and amenities shall not be disconnected.

The appeal stands disposed of.

Sd/-

JUDGE

Kmv/-