Karnataka High Court
Pebble Bay Owners Association (Pboa) vs Mr Sunil Kumar Nahar on 3 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:485
MFA No. 7811 of 2023
C/W MFA No. 6527 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7811 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6527 OF 2023 (CPC)
IN MFA NO.7811/2023
BETWEEN:
1. MR. SUNIL KUMAR NAHAR,
SON OF MR. GAUTAM NAHAR,
AGED ABOUT 53 YEARS,
RESIDING AT
NO. 22, PANCHAVATI,
18TH CROSS, 10TH MAIN,
MALLESHWARAM,
BANGALORE - 560 055.
2. MR. AKASH KUMAR NAHAR,
Digitally signed SON OF MR. GAUTAM NAHAR,
by SHARANYA T AGED ABOUT 45 YEARS,
Location: HIGH
COURT OF RESIDING AT
KARNATAKA NAHAR MANSION, 1044,
C CROSS PIPELANE,
YESHWANTHPUR,
BANGALORE - 560 022.
REPRESENTED BY HIS DULY
CONSTITUTED
POWER OF ATTORNEY HOLDER
MR. SUNIL KUMAR NAHAR
AGED ABOUT 53 YEARS,
RESIDING AT
NO.22, PANCHAVATI,
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MFA No. 7811 of 2023
C/W MFA No. 6527 of 2023
18TH CROSS, 10TH MAIN,
MALLESHWARAM,
BANGALORE - 560 055.
...APPELLANTS
(BY SRI. VIKAS MAHENDRA A/W
SRI. SRINIVAS N.C., ADVOCATES)
AND:
PEBBLE BAY OWNERS ASSOCIATION,
A SOCIETY FORMED UNDER THE
PROVISIONS OF THE
KARNATAKA REGISTRATION OF
SOCIETIES ACT, 1960,
HAVING ITS OFFICE ADDRESS AT
A-11, 1ST MAIN, DOLLARS
COLONY, RMV II STAGE,
BANGALORE - 560 094
REPRESENTED BY ITS PRESIDENT
...RESPONDENT
(BY SRI. RAMESH T., ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 17.08.2023 PASSED ON
I.A.NO. 2/2023 IN OS.NO.4567/2023 ON THE FILE OF THE X
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-26. REJECTING THE I.A.NO.II FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
IN MFA NO.6527/2023
BETWEEN:
PEBBLE BAY OWNERS ASSOCIATION(PBOA),
A SOCIETY FORMED UNDER THE
PROVISION OF THE
KARNATAKA REGISTRATION OF
SOCIETIES ACT, 1960,
HAVING ITS OFFICE ADDRESS AT
A-11, 1ST MAIN, DOLLARS
COLONY, RMV II STAGE,
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NC: 2024:KHC:485
MFA No. 7811 of 2023
C/W MFA No. 6527 of 2023
BANGALORE - 560 094
REPRESENTED BY ITS PROPERTY MANAGER,
MR. RAJKUMAR DASS
...APPELLANT
(BY SRI. RAMESH T., ADVOCATE)
AND:
1. MR. SUNIL KUMAR NAHAR,
SON OF MR. GAUTAM NAHAR,
AGED ABOUT 53 YEARS,
RESIDING AT
NO. 22, PANCHAVATI,
18TH CROSS, 10TH MAIN,
MALLESHWARAM,
BANGALORE - 560 055.
2. MR. AKASH KUMAR NAHAR,
SON OF MR. GAUTAM NAHAR,
AGED ABOUT 45 YEARS,
RESIDING AT
NAHAR MANSION, 1044,
C CROSS PIPELANE,
YESHWANTHPUR,
BANGALORE - 560 022.
REPRESENTED BY HIS DULY
CONSTITUTED
POWER OF ATTORNEY HOLDER
MR. SUNIL KUMAR NAHAR,
AGED ABOUT 53 YEARS,
RESIDING AT
NO.22, PANCHAVATI,
18TH CROSS, 10TH MAIN,
MALLESHWARAM,
BANGALORE - 560 055.
...RESPONDENTS
(BY SRI. VIKAS MAHENDRA A/W
SRI. SRINIVAS N.C., ADVOCATES)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 17.08.2023 PASSED ON I.A.NO.1 AND 3 IN
OS.NO.4567/2023 ON THE FILE OF THE X ADDITIONAL CITY
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MFA No. 7811 of 2023
C/W MFA No. 6527 of 2023
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-26),
ALLOWING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULES 1
AND 2 OF CPC AND REJECTING I.A.NO. III FILED UNDER
ORDER XXXIX RULE 4 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for appellant and learned
counsel for respondents.
2. These two Miscellaneous appeals are filed
against the order passed by the Trial Court on I.A.No.1
and I.A.No.2, allowing the I.A.No.1 by restraining the
defendants from interfering with the plaintiff's peaceful
possession over the suit properties and from obstructing
them in carrying out the necessary civil works to the suit
properties, pending disposal of the suit and also made it
clear by passing an order that plaintiffs are directed to
effect the repair/civil works to the suit properties without
meddling with the common areas of the apartment
building.
3. I.A.No.2 is rejected. Hence, these two appeals
are filed by the plaintiffs as well as defendant.
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4. The plaintiff is before this Court, against the
rejection of I.A.No.2 passed in O.S.No.4567/2023,
rejecting the prayer of the plaintiffs, restraining the these
defendants from using the common area surrounding the
apartment owned by the plaintiffs bearing No.1 on the
ground floor and first floor in Tower-2 of the residential
complex for any other purpose other than to maintain a
garden. The other appeal is filed by the defendants on
granting the relief in favour of the plaintiffs restraining
them from interfering peaceful possession of the plaintiffs.
5. The main contention of the counsel appearing
for the appellant in MFA No.7811/2023 is that in view of
the rejection of I.A.No.2, he is facing difficulties and also
having seepage problem and earlier the ground floor
surrounding his flat, there was a garden and the same has
been removed and now making use of this for other
purpose and he paid higher amount looking into the
garden, which was surrounding the plot he purchased.
Hence, he may be permitted to make the garden
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restraining to the defendants. The counsel also
vehemently contend that he is ready to pay maintenance
from this month under protest. The Trial Court
committed error in rejecting the I.A.No.2 coming to the
conclusion that the appellants/plaintiffs have not made out
a prima facie grounds to seek the relief sought in I.A.No.2,
the very approach is erroneous. Hence it requires to
interference.
6. Per contra learned counsel appearing for the
defendants/appellants in other appeal also vehemently
contends that the trial Court committed an error while
granting an order of injunction. The learned counsel also
vehemently contends that the plaintiff is not paying any
maintenance charges. The counsel also brought to the
notice of this Court that the copy of the sale deed under
which they have purchased the plot in year 2012,
particularly in column No.18 (4) and (6) of the document,
wherein it is specifically mentioned with regard to the
payment of maintenance charges and getting permission
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from association to do repair work and also specific clause
is there, under which he is bound to become a member of
a association. When such condition is imposed the trial
Court has ought not to have granted relief of temporary
injunction permitting the plaintiffs to carry out the work.
Hence the Trial Court committed an error and set aside the
order passed on the I.A.No.1 passed in the suit and hence,
it required interference.
7. Having heard appellants/plaintiffs counsel and
also the appellants/defendants counsel with regard to the
both I.A.No.1 and I.A.No.2, the point would arise for
considerations of this Court are follows.
i. Whether the trial Court committed an
error in rejecting the application filed
under Order XXXIX Rule 1 and 2, i.e.,
I.A.No.1, in O.S.No.4567/2023?
ii. Whether the trial Court committed an
error in granting relief of temporary
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injunction in favour of plaintiff in
I.A.No.1?
iii. Whether the same requires interference
of this Court?
8. Having heard the respective counsels, it is not
in dispute that plaintiff is the owner of plots which are
mentioned in the suit schedule properties. The contention
of the plaintiffs that the defendants are interfering in their
possession and not allowing them to do the repair work of
their respective plots. It is the contention of the
defendants that the sale deed itself is clear with regard to
he is bound to become a member of apartment of owners
association and pay the maintenance and he has not paid
the maintenance. Trial Court taking note of the pleadings
of the parties, i.e., plaintiffs as well as defendants and also
considering the materials available on records i.e., with
regard to the condition imposed in the sale deed as well as
apartment owners association by-laws, made an
observation with regard to once the plaintiff is residing in
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an apartment he is bound to pay maintenance also. The
prayer sought for regarding the repair of garden is
concerned, the same was rejected, since the said area is a
common area and the said fact is a matter of trial. Hence,
while considering the interim application, no such
permission can be given. Taking into note of restraining
the plaintiffs from carrying out repair work, when there is
no dispute with regard to the fact that plaintiffs are the
owners of the respective plots and they may be allowed to
do civil work inside their respective plots and also made it
clear that in common area they should not indulge in
making any repairs. The grievance of the appellant that
the water is flowing through podium and same is causing
difficulty for him to maintain his respective plot and also
produced some of the documents i.e., photographs which
discloses with regard to affecting repair as concerned.
Having taken such note on submission, the association is
in existence and the association has to take note of the
said fact, since the same is common area. If any leakage
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is as mentioned by the counsel for the appellant, the same
can be repaired by the association and counsel for the
appellant is ready to meet the expenses with regard to the
said repair cost of common area, in respect of premises
which plaintiffs are in occupation i.e., plots mentioned in
the suit properties. In respect of the same, the plaintiffs
can carryout civil work and repairs and defendants cannot
come in the way of doing the same. The same is subject to
appellants/plaintiffs start making payment of maintenance
from this month itself with protest and with regard to the
arrears is concerned matter requires to be enquired by the
Trial Court, the same is subject to the proof.
9. Learned counsel appearing for the appellant
submits that he is ready to make payment under protest
and the same has to be considered by the trial Court
during the course of the enquiry whether he is bound to
pay the maintenance or not. But very recital of document
of sale deed, which was in the year 2012 made clear that
plaintiffs are bound to become a member of association
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and plaintiffs also act in terms of the sale deed and also
the apartments owners by-laws and there cannot be any
discrimination to any of one of the flat or other flat
owners, who are also members and are paying the
maintenance and it is bounden duty of the plaintiffs to pay
the maintenance, with these observation both the appeals
are disposed of.
10. The observation made by this Court shall not
influence the Trial Court while considering the matter on
merits. The water proofing shall be done at the cost of
plaintiffs within period of three months, surrounding his
plot, if plaintiff makes payment in order to keep his
premises in order.
Sd/-
JUDGE
NJ
CT:SNN
