H V Ali Asgar vs Mahamed Faisal Ali
2022 Latest Caselaw 5283 Kant

Citation : 2022 Latest Caselaw 5283 Kant
Judgement Date : 23 March, 2022

Karnataka High Court

H V Ali Asgar vs Mahamed Faisal Ali on 23 March, 2022

Bench: E.S.Indiresh

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE E.S.INDIRESH

             W.P. NO.4301 OF 2022 (GM-CPC)


BETWEEN

H V ALI ASGAR
S/O LATE HUSSAIN BHAL
AGED ABOUT 56 YEARS,
R/AT NO.F 603 6TH FLOOR
WILSON GARDEN, 13TH CROSS
ERAKEMPANAHALLI
BENGALURU-560 027
ALSO AT
SHOP NO.2 TOOLS MARKETING
HMFS TOWERS NO.2
MANDI VEERAPPA LINE
SJP ROAD CROSS
BENGALURU-560002

                                           ...PETITIONER
(BY SRI SYED ABDUL SABOOR, ADVOCATE)

AND

1.    MAHAMED FAISAL ALI
      S/O LATE M MUMTAZ ALI
      AGED ABOUT 49 YEARS,

2.    MAHAMED SAQUBALI
      S/O LATE M MUMTAZ ALI
      AGED ABOUT 40 YEARS,

      BOTH ARE R/AT NO.5 AHMED SAIT ROAD
                                       2




       FLAT NO.101
       GOLD CASA ENCLAVE
       FRAZER TOWN
       BENGALURU -560 005

                                                       ....RESPONDENTS

(BY SRI P B AJIT AND R K THONTADARYA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 14TH DECEMBER, 2021 IN I.A.1 OF 2021 PASSED BY THE
COURT OF SMALL CAUSES AT BENGALURU IN SC.NO.583 OF 21
SCCH 14 AS PER ANNEXURE-H

    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:

                                  ORDER

This Writ Petition is filed by the defendant in SC No.

583 of 2021 on the file of XVI Additional Judge, Court of

Small Causes and MACT, Bengaluru, dismissing the

application filed by the defendant under Order 11 Rule 14 of

Code of Civil Procedure.

2. Brief facts are that, the respondents herein are

the plaintiffs in SC No.583 of 2021 before the Trial Court,

seeking relief of vacation of the premises in question. In the

said proceedings, the defendant-tenant has filed the

application under Order 11 Rule 14 of Code of Civil

Procedure, seeking direction to the plaintiffs to produce the

copies of the title deeds and municipal records in respect of

suit schedule property. The said application was contested by

the plaintiffs. The Trial Court, by order dated 14.12.2021,

dismissed the application. Feeling aggrieved by the, the

defendant has preferred this Writ Petition.

3. I have heard Sri Syed Abdul Saboor, learned

counsel appearing for the petitioner and Sri P.B. Ajit and R.K.

Thontadarya, learned counsels appearing for the

respondents.

4. Sri Syed Abdul Saboor, learned counsel

appearing for the petitioner argued that, the Trial Court failed

to consider the fact that there was no partition between the

plaintiffs and their sisters and therefore, the plaintiffs have to

prove their title before the Trial Court. The said aspect of the

matter was not considered by the Trial Court while dismissing

the application filed under Order 11 Rule 14 of Code of Civil

Procedure. Therefore, he contended that the impugned order

is liable to be interfered with in this Writ Petition.

5. Per contra, Sri P.B. Ajit, learned counsel

appearing for the respondents contended that the plaintiffs

are the co-owners of the suit schedule premises and

therefore, the plaintiffs can seek possession of the property

in question and therefore, he sought to justify the impugned

order passed by the Trial Court.

6. Having heard the learned counsel appearing for

the parties, I have carefully examined the finding recorded

by the Trial Court. Undisputably, the petitioner and

respondent have entered into lease in respect of premises as

per the Lease Deed dated 25.10.2007 (Annexure-A). The

lessor in the aforementioned Lease Deed is Mr M. Mamtaz

Ali, who is the father of the plaintiffs. Suit is filed by the

plaintiffs for seeking possession of the property interalia

vacation of the premises by the petitioner herein. In this

regard, I have carefully considered the law declared by the

Hon'ble Apex Court in the case of Om Prakash and another

Vs. Mishri Lal (dead) represented by his legal

representative Savitri Devi reported in (2017) 5 SCC

451. Paragraph 32 of the aforesaid judgment reads as

under:

"32. It is no longer res integra and is settled by this Court in Sri Ram Pasricha vs. Jagannath, Dhannalal vs. Kalawatibai and India Umberalla Manufacturing Co. and Ors. vs. Bhagabandei Agarwalla that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. The judicially propounded proposition is that when the property forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co- owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto."