Karnataka High Court
Sri. Manjunath. A. S vs Sri. Arjun. G. K on 5 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 4511 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4511 OF 2022 (CPC)
BETWEEN:
SRI. MANJUNATH. A. S.
AGED ABOUT 47 YEARS
S/O SATYADEVAN A A
NO.402 THIRD FLOOR
PADMASHREE PRESIDENCY APARTMENT
17TH CROSS 21ST MAIN
J P NAGAR, 5TH PHASE
BANGALORE-560078.
...APPELLANT
(BY SRI. KESHAVA KUMAR B.,ADVOCATE)
AND:
Digitally signed 1. SRI. ARJUN. G. K.
by S/O SRI KRISHNA GOWDA
DHANALAKSHMI
MURTHY AGED ABOUT 40 YEARS
Location: High R/AT NO.403 THIRD FLOOR
Court of
Karnataka PADMASHREE PRESIDENCY APARTMENT
17TH CROSS 21ST MAIN
J P NAGAR, 5TH PHASE
BANGALORE-560078.
2. M/S PADMASHREE PRESIDENCY
CONDOMINIUM OWNERS
WELFARE ASSOCIATION
REGISTERED OFFICE AT
21ST MAIN 17TH CROSS
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MFA No. 4511 of 2022
J P NAGAR, 5TH PHASE
BANGALORE-560078.
...RESPONDENTS
(BY SRI. KESHAVA KUMAR B., ADVOCATE FOR
SRI. PRAKASH M H., ADVOCATE FOR C/R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED: 24.03.2022 PASSED ON I.A.
NO. 1 IN O.S.NO. 5912/2021 ON THE FILE OF THE XV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH NO.3), DISMISSING I.A. NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff under Order 43
Rule 1(r) of CPC, challenging the order dated 24.03.2022
passed by the XV Additional City Civil and Sessions Judge,
Bengaluru in O.S.No.5912/2021, whereby, IA No.1 filed
by the plaintiff under Order 39 Rules 1 and 2 of CPC has
been dismissed.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial court.
3. The plaintiff filed a suit for injunction. Along with
the plaint, he has also filed IA No.1 under Order 39 Rules
1 and 2 of CPC seeking temporary injunction against the
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defendants restraining them from interfering with the car
parking area of the plaintiff over the suit schedule
property. The trial court, after hearing the parties,
dismissed the application. Being aggrieved by the same,
the plaintiff filed this appeal.
4. Learned counsel appearing for the appellant/
plaintiff contended that the trial court dismissed the
application only on the ground that in the sale deed dated
27.10.2014 there is no mention regarding the purchase of
car parking area. He contended that in the sale deed
recital it is very clear that he purchased the flat including
car parking area. Hence, he contended that the finding of
the trial court is contrary to the materials available on
record.
5. Per contra, learned counsel appearing for the
defendants/respondents has contended that the car
parking which is in dispute has been used by the first
defendant. At no point of time, that has been sold in
favour of the plaintiff. The trial court, after considering
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the materials available on record, has rightly rejected the
application.
6. Heard the learned counsel for the parties and
perused the appeal papers.
7. It is not in dispute that the plaintiff filed a suit for
bare injunction. He has also filed IA No.1 under Order 39
Rules 1 and 2 seeking temporary injunction restraining the
defendants from interfering with the car parking area of
the plaintiff over the suit schedule property. The sale
deed dated 27.10.2014 has been placed before this Court.
In the recital of the sale deed, it is mentioned as
hereinbelow:
"All that piece and parcel of the three
bedroom residential apartment bearing No.402
on the third floor, presently bearing
independent Municipal Corporation
No.1001/1011/575/402 New PID No.187-
W0069-16-20, Corporation Ward No.187,
having a super built-up area of 1330 square
feet together with one reserved covered car
park space in the residential apartment building
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known as "PADMASHREE RESIDENCY"
constructed on the Schedule 'A' property, with
proportionate share in common areas such as
passages, lobbies, lift, staircase and other areas
of common use with right to pass through all
the common passages leading to road and free
from egress and ingress at all times and
entitled for all the common areas and amenities
subject to prompt payment of maintenance
charges."
8. By looking into the same, it is very clear that the
finding given by the trial court that in the sale deed, dated
27.04.2014, there is no mention regarding the purchase of
car parking area, is not correct. The same is contrary to
the materials available on record. Hence, the impugned
order requires to be set aside.
9. Accordingly, I pass the following order:
(i) The appeal is allowed.
(ii) The order dated 24.03.2022 on IA
No.1 in O.S.No.5912/2021 passed by the XV
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Additional City Civil and Sessions Judge,
Bengaluru is set aside.
(iii) The matter is remitted back to the
trial court with a direction to reconsider IA No.1
filed by the plaintiff under Order 39 Rules 1 and
2, in accordance with law, after giving
opportunity to both the parties.
(iv) All pending applications stand
disposed of.
Sd/-
JUDGE
CM
