H V Ali Asgar vs Mahamed Faisal Ali
2022 Latest Caselaw 5362 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 24TH DAY OF MARCH, 2022

                             BEFORE

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

          WRIT PETITION NO.4354 OF 2022 (GM-CPC)

BETWEEN:

H.V. ALI ASGAR
S/O LATE HUSSAIN BHAI
AGED ABOUT 56 YEARS
R/AT NO.F 603, 6TH FLOOR,
WILSON MANOR APARTMENT,
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-560 002.
                                                 ...PETITIONER
(BY SRI. SYED ABDUL SABOOR, ADVOCATE)

AND:

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

  2. MAHAMED SAQUB ALI
     S/O LATE M. MUMTAZ ALI
     AGED ABOUT 40 YEARS.
     BOTH ARE RESIDING AT
     NO.5, AHMED SAIT ROAD,
     FLAT NO.101, GOLD CASA ENCLAVE,
     FRAZER TOWN,
                                      2


       BENGALURU-560 005.
                                                     ....RESPONDENTS
(BY SRI. THONTADHARYA R.K., ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED
24TH JANUARY, 2022 PASSED ON IA.2 OF 2021 BY THE XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MACT,
BENGALURU IN SC NO.583 OF 2021 (SCCH 14) AS PER ANNEXURE-H;
AND ETC.

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

                             ORDER

This Writ petition is filed by the defendant challenging the

order dated 24th January, 2022 passed on IA.2 of 2021 in SC

No.583 of 2021 on the file of the XVI Additional Judge, Court of

Small Causes & MACT., Bengaluru (for short, hereinafter referred

to as 'trial Court'), dismissing the application.

2. Brief facts for adjudication of this writ petition are that

the plaintiff/respondents herein have filed SC No.583 of 2021 on

the file of the trial Court, seeking relief of decree of ejecting the

defendant from the schedule 'B' premises and to deliver the

vacant, physical possession of the schedule 'B' premises to the

plaintiffs. The said suit was contested by the

defendant/petitioner herein by filing written statement as per

Annexure-E. In the meanwhile, the defendant/petitioner herein

filed an application under Order XIV Rule 5 read with Section

151 of the Civil Procedure Code to frame issues as contemplated

under Section 10 of the Karnataka Small Causes Court Act, 1964

(for short, hereinafter referred to as 'Act'). The said application

was resisted by the respondents herein. The trial Court, after

considering the material on record, by impugned order dated

24th January, 2022, dismissed the application. Feeling aggrieved

by the same, the defendant has presented this writ petition.

3. I have heard Sri. Syed Abdul Saboor, learned counsel

appearing for petitioner and Sri. Thontadharya R.K., learned

counsel appearing for respondents.

4. Sri. Syed Abdul Saboor, learned counsel appearing for

the petitioner argued that in terms of the lease deed dated 25th

October, 2007, the premises has been leased out to the

petitioner herein by the father of the respondents. He further

contended that he is in peaceful possession of the suit schedule

property even after the demise of the lessor. However, the

respondents herein are interfering with his peaceful possession

and seeking ejectment on flimsy grounds. He further contended

that the trial Court ought to have framed an issue as

contemplated under Section 10 of the Act. Therefore, he

contended that since the defendant has disputed the landlord-

tenant relationship in the suit, the trial Court be directed to

frame the issues accordingly.

5. Per contra, Sri. Thontadharya, learned counsel appearing

for respondents argued in support of the impugned order and

also made available the judgment of Hon'ble Apex Court in the

case of OM PRAKASH AND ANOTHER vs. MISHRI LAL

(DEAD) REP. BY HIS LR SAVITRI DEVI reported in (2017)5

SCC 451, wherein, it is held that the Co-owner of the premises

can resort to initiate the ejectment suit against the tenant. In

that view of the matter, I do not find any merit in the submission

made by learned counsel appearing for petitioner. Accordingly,

writ petition is dismissed as devoid of merits.

Sd/-

JUDGE ARK