Mr Nauman Sait vs Rao Bahadur Annaswamy
2022 Latest Caselaw 5663 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                          BEFORE

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

        WRIT PETITION NO.6156 OF 2022 (GM-CPC)

BETWEEN:

  1. MR. NAUMAN SAIT
     S/O LATE AMEEN SAIT
     AGED ABOUT 41 YEARS.

  2. MR. FUZAIL AMEEN
     S/O LATE AMEEN SAIT
     AGED ABOUT 30 YEARS.
       BOTH ARE RESIDING AT
       NO.7/2, SPENCER ROAD,
       FRAZER TOWN,
       BENGALURU-560 005.
                                           ...PETITIONERS
(BY SRI. GIRIDHAR. S.V., ADVOCATE)

AND:

  1. RAO BAHADUR ANNASWAMY
     MUDALIAR PUBLIC CHARITIES,
     NO.59, MOORE ROAD,
     FRAZER TOWN,
     CIVIL STATION,
     BENGALURU.
     REPRESENTED BY ITS TRUSTEES.
       ALSO HAVING AN OFFICE AT
       NO.24, GANGADHAR CHETTY ROAD,
       BENGALURU-560 042.
                                   2




   2. MR. FAZLULLA MEKHRI
      S/O LATE MR. M.R. MEKHRI
      AGED ABOUT 80 YEARS.

   3. MR. KHALID MEKHRI
      S/O MR. FAZLULLAH MEKHRI
      AGED ABOUT 45 YEARS.
      RESPONDENTS 2 AND 3 ARE
      RESIDING AT NO.32, 7TH CROSS,
      VASANTHANAGARA,
      BENGALURU-560 052.
                                               ....RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE LXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, BENGALURU IN ORIGINAL SUIT
NO.1796 OF 2022 DATED 11TH MARCH, 2022 VIDE ANNEXURE-G
AND CONSEQUENTLY ALLOW INTERLOCUTORY APPLICATION
NO.1 FILED BY THE PETITIONER THEREBY GRANTING AN EX-
PARTE   AD-INTERIM   ORDER   OF   INJUNCTION   AGAINST
RESPONDENTS; AND ETC.

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

                             ORDER

This Writ petition is filed by plaintiffs in Original Suit

No.1796 of 2022 on the file of the LXI Additional City Civil and

Sessions Judge, Bengaluru (for short, hereinafter referred to as

'trial Court'), challenging the order dated 11th March, 2022

passed on IA.1 filed by plaintiffs.

2. Perusal of the writ papers would indicate that the

plaintiffs have filed suit against the defendants, seeking decree

of perpetual injunction restraining the defendants and their men

from interfering with the suit schedule property. At the time of

filing of the suit, plaintiffs have filed IA.1 under Order XXXIX

Rule 1 and 2 read with Section 151 of the Civil Procedure Code,

seeking interim measure. The trial Court after considering the

material on record, by impugned order dated 11th March, 2022

issued summons/emergent notice on IA.1 to defendants,

however, declined to pass an ad-interim temporary injunction.

Feeling aggrieved by the same, plaintiffs have approached this

Court in this writ petition.

3. Sri. Giridhar S.V., learned counsel appearing for

petitioners, invited the attention of the Court to the judgment

and decree dated 27th January, 2016 passed by the trial Court in

Original Suit No.409 of 1995 and also produced certain

photographs in evidence of the construction of building, which

appears to be adjacent to the suit schedule property. He also

contended that the trial Court ought to have considered IA.I

based on the material placed therein. Therefore, he sought for

interference of this Court to pass an ad-interim injunction

restraining defendants from interfering with the suit schedule

property.

4. Having heard, the learned counsel appearing for the

petitioners, it is not in dispute that the plaintiffs have filed suit

seeking perpetual injunction against defendants and IA.I is filed

under Order XXXIX Rule 1 and 2 of the Civil Procedure Code.

Granting or refusal of the ad-interim injunction is discretionary in

nature. The trial Court, based on the material on record, has

arrived at a conclusion that the IA.I has to be considered after

the appearance of the defendants. Taking into consideration the

law declared by Hon'ble Apex Court in the case of MORGAN

STANLEY MUTUAL FUNDS vs. KARTHICK DAS reported in

(1994)4 SCC 225, I am of the view that the principle of granting

ex-parte injunction could be granted only under exceptional

circumstances based on factors laid down by the Hon'ble Apex

Court in the aforementioned case. However, taking into

consideration, the averments made in the writ petition and the

photographs evidencing the construction activities in the

schedule property, I am of the view that the trial Court be

directed to consider IA.1 filed by plaintiffs within four weeks

from the date of receipt of certified copy of this order and pass

appropriate orders to protect the interest of plaintiffs, if the case

of the plaintiffs is covered under the factors laid down by the

Hon'ble Apex Court in the aforementioned case. Accordingly,

writ petition is disposed of.

It is also made clear that this Court has not expressed any

opinion on the merits of the case.

Sd/-

JUDGE

ARK