Sri Ubedullah Khan vs Smt Mustharikhanum
2023 Latest Caselaw 3690 Kant

Citation : 2023 Latest Caselaw 3690 Kant
Judgement Date : 26 June, 2023

Karnataka High Court

Sri Ubedullah Khan vs Smt Mustharikhanum on 26 June, 2023

Bench: H.P.Sandesh

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                                                       NC: 2023:KHC:22087
                                                         MFA No. 357 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 26TH DAY OF JUNE, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 357 OF 2023 (CPC)

                   BETWEEN:

                   1.    SRI UBEDULLAH KHAN
                         S/O. LATE KAREEM KHAN
                         ALIAS HAJI KHAN
                         AGED ABOUT 56 YEARS
                         R/AT NARGALE GRAMA
                         BILIGERE HOBLI
                         NANJANGUD TALUK
                         MYSORE DISTRICT-571 301.
                                                                ...APPELLANT

                            (BY SRI. MANJUNATH HEGDE, ADVOCATE FOR
                                 SRI T. SESHAGIRI RAO, ADVOCATE)
                   AND:

                   1.    SMT. MUSTHARIKHANUM
Digitally signed
by SHARANYA T            W/O. SHAUKATH ALI KHAN
Location: HIGH           AGED ABOUT 60 YEARS
COURT OF
KARNATAKA
                   2.    SRI SHAUKATH ALI KHAN
                         S/O. MOOSE KHAN
                         AGED ABOUT 68 YEARS

                         BOTH OF THEM ARE RESIDING
                         AT HOUSE NO.3680
                         SHREE KANTA MANTAPA LAYOUT
                         R.P.ROAD, NANJANGUD TOWN
                         MYSORE DISTRICT-571 301.
                                                             ...RESPONDENTS

                              (RESPONDENT NOS.1 TO 2 ARE SERVED)
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                                         NC: 2023:KHC:22087
                                             MFA No. 357 of 2023




     THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT. 10.11.2022 PASSED ON I.A.NO.1 IN
O.S.NO.170/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, NANJANGUD, REJECTING I.A.NO.1 FILED U/O.39,
RULE 1 AND 2 R/W. SEC.151 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard the learned counsel for the appellant and the

respondent Nos.1 and 2 though served with notice, remained

unrepresented.

2. This appeal is filed against the order dated

10.11.2022 passed on I.A.No.1 in O.S.No.170/2022 on the file

of the Senior Civil Judge and JMFC, Nanjangud, rejecting I.A.

No.1 filed under Order 39, Rule 1 and 2 read with Section 151

of CPC.

3. Learned counsel for the appellant-plaintiff would

contend that, when an application is filed before the Trial Court

under Order 39, Rule 1 and 2 read with Section 151 of C.P.C.

seeking the relief of temporary injunction restraining the

defendants from alienating the suit schedule property and there

was a sale agreement in favour of the appellant-plaintiff, the

Trial Court rejected the application only on the ground that

NC: 2023:KHC:22087 MFA No. 357 of 2023

proper stamp duty is not paid on the sale agreement. Learned

counsel for the appellant would vehemently contend that this

Court vide order dated 10.04.2023 permitted the appellant-

plaintiff to pay the stamp duty with penalty and accordingly,

the same is paid. The counsel also would submit that the suit

is filed for the relief of specific performance and agreement is

also produced before the Court. Though the respondents-

defendants have not filed any statement of objections and they

are represented through counsel, without any defence, the Trial

Court rejected the application.

4. Having heard the learned counsel for the appellant-

plaintiff and also on perusal of the impugned order, the Trial

Court has rejected the application filed under Order 39, Rule 1

and 2 read with Section 151 of C.P.C. on the ground that no

prima facie case is made out and the sale agreement is

executed on a stamp paper of a value of Rs.2,000/- and the

sale agreement is insufficiently stamped document. It is also

observed that, as per law, no relief can be granted on the basis

of insufficiently stamped document and rejected the application

considering the matter on merits. However, now the appellant-

plaintiff has paid the stamp duty with penalty on the document.

NC: 2023:KHC:22087 MFA No. 357 of 2023

When such being the case, the impugned order is liable to be

set aside, remanding the matter to the Trial Court to consider

the application on merits, in view of payment of duty with

penalty on the document. The Trial Court also not passed an

order on merits and dismissed only on technicality.

5. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed and the impugned order dated 10.11.2022 passed on I.A.No.1 in O.S.No.170/2022, is hereby set aside and the matter is remitted back to the Trial Court to consider the application in I.A.No.1 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. within one month from the receipt of this order.