Karnataka High Court
Sri. Mohammad Rafi vs Sri. Ikramulla on 12 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7087 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7087 OF 2023 (CPC)
BETWEEN:
1. SRI MOHAMMAD RAFI
WRONGLY SHOWN AS RAFIULLA
S/O LATE AMEER JAAN
AGED ABOUT 49 YEARS,
2. SRI MOHAMMAD ZABI
WRONGLY SHOWN AS ZABIULLA
S/O LATE AMEER JAAN
AGED ABOUT 44 YEARS,
BOTH R/AT NO. 22, 6TH CROSS,
K K LANE, COTTONPET,
BANGALORE - 560053.
Digitally signed
by DEVIKA M ...APPELLANTS
Location: HIGH (BY SRI C S PRASANNA KUMAR, ADVOCATE FOR
COURT OF SRI ALLAH BAKASH M, ADVOCATE)
KARNATAKA
AND:
1. SRI IKRAMULLA
S/O LATE SYED SAMIULLA
AGED ABOUT 43 YEARS,
R/AT NO.2/1, 3RD CROSS,
KOTTIGERE GALLE, OTC ROAD,
COTTONPET, BLORE - 560053.
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MFA No. 7087 of 2023
2. HAZRATH TAWAKKL MASTAN
SHAH DARGAH MOSQUE AND
GHOUSIA SARAI, SITUATED AT
NO.512 OTC ROAD, CUBBONPET,
BANGALORE - 560053.
REPRESENTED BY SECRETARY.
...RESPONDENTS
(BY SRI NAGAIAH, ADVOCATE FOR R1;
R2 - SERVED & UNREPRESENTED)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.18.07.2023 PASSED ON IA NO.1
IN O.S.NO.26268/2019 ON THE FILE OF THE LVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO
HALL UNIT, BENGALURU, (CCH-58) AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 18.07.2023 passed on I.A.No.1/2019 in
O.S.No.26268/2019 by the LVII Additional City Civil and
Sessions Judge, Mayo Hall Unit, Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
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3. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of
permanent injunction as well as mandatory injunction is
that defendant Nos.1 and 2 have erected a stall measuring
10 x 15 feet and running a beef fast food center which is
installed just opposite to the plaintiff's shops premises
bearing No.506. It is further contended that the plaintiff is
the tenant under defendant No.3 as per the lease deed
dated 13.06.2019 in two shop premises of defendant No.3
i.e., Hazrath Tawakkal Mastan Shah Durgah bearing
No.506, situated at premises No.512, OTC Road,
Bangalore. It is further contended that the plaintiff
informed the said fact before his landlord and landlord
directed defendants Nos.1 and 2 to remove their stall from
the Dargah property and Dargah authorities also made the
requisition to the BBMP. Inspite of this, said defendants
not removed the stall which was installed just in front of
the shops of the plaintiff. Therefore, filed the suit and also
sought for the relief of temporary injunction restraining
defendant Nos.1 and 2 from doing the business.
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4. The defendant Nos.1 and 2 appeared and filed
the written statement contending that they have installed
the stall with the permission of the BBMP and there is no
any obstruction to the plaintiff's stall and on which is
installed it is belongs to Durgah property. The plaintiff is
not a competent person to file the suit against defendant
Nos.1 and 2 and further submits that the only competent
authority is BBMP to vacate the stall of defendant Nos.1
and 2. Hence, the plaintiff is not having any right to
institute the present suit against the said defendants and
seeking the relief of temporary injunction does not arise.
5. The Trial Court having considered the pleadings
of the parties comes to the conclusion that the plaintiff is
running his business in the shop which is mentioned in the
plaint and he is a tenant of Dargah i.e., defendant No.3.
The place where defendant Nos.1 and 2 doing the business
is also belongs to Dargah and Dargah authorities have
given the requisition to BBMP. The Trial Court also comes
to the conclusion that on perusal of the photographs, it
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discloses that shop is installed just in front of the shop of
the plaintiff and it causing obstruction to the day-to-day
business of the plaintiff by way of obstructing to ingress
and egress to the customers of plaintiff. Hence, the Trial
Court comes to the conclusion that the plaintiff has made
out a prima facie case and balance of convenience lies in
his favour and if defendant Nos.1 and 2 are not restrained,
there will be irreparable loss to the plaintiff. Hence,
granted the relief of temporary injunction. Being
aggrieved by the said order, the present appeal is filed.
6. The learned counsel for the appellants would
vehemently contend that the learned Judged granted final
relief of vacating and stopping the business of the
appellants and erroneously directed the jurisdictional
police to implement and execute the interim order, which
is totally contrary to law. The counsel also submits that
defendant Nos.1 and 2 have prima facie case and balance
of convenience does not lie in favour of the plaintiff. The
Trial Court fails to take note of the said fact. The counsel
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also contend that the Trial Court erroneously takes the
averments of the plaint and I.A.No.1 as gospel truth and
does not even make a cursory view on the documents and
defense of these defendants. The counsel contend that
even assuming that the appellants have illegally installed
the shop and doing the business, the questionable
authority is only Dargah and BBMP and no such decision
was taken by the said authority. Hence, the Trial Court
committed an error in passing such an order. The order
impugned is passed only on imaginary basis without
pursuing single piece of material available on record.
7. The counsel in support of his arguments
produced the documents and photographs to show that
one of the appellant is a handicap person and also
produced disability certificate as well as medical records
and ration card. The counsel relied upon the document of
registration certificate issued by the Food Safety and
Standards Authority of India under FSS Act and
registration ID card which is issued on 09.05.2023. The
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counsel also produced the photographs to show the
existence of shop of the plaintiff and also their shops on
the foot path. Also produced the copy of the sketch.
Referring these documents, the counsel would contend
that in between the shop of the defendants and plaintiff,
there is eight feet passage. The counsel referring the
sketch would contend that shop of appellants it will not
cause any obstruction to the business of the plaintiff.
8. Per contra, the learned counsel for the
respondents relies upon the photographs produced before
this Court along with a memo wherein it discloses that the
shops are installed in the property of Dargah and also
shows the table kept on the foot path and the people also
using the said shop and causing obstruction to the shop
premises of the plaintiff/respondent No.1. The counsel
also would vehemently contend that shops which leased in
favour of the plaintiff were let out by the Dargah and
representation also given to Dargah and BBMP but no
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action was taken. Hence, he was constrained to file a suit
and inter alia sought for the relief of temporary injunction.
9. The counsel also contends that the Trial Court
considered the documents produced before the Court and
comes to the conclusion that though defendant Nos.1 and
2 claims that permission is given by BBMP to run their
shop, no such document is placed before the Court. Even
additional documents placed before the Court are also
subsequent to filing of the suit. The counsel for defendant
Nos.1 and 2 though contend that registration certificate is
issued by the Food Safety and Standards Authority of
India, no document is placed before the Court to show that
defendant Nos.1 and 2 have given permission to run the
business in the subject matter of the property. The Trial
Court taken note of the said fact into consideration and
comes to the conclusion that running of a shop in front of
the plaintiff's shops will cause obstruction to the day-to-
day business of the plaintiff.
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10. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record, it discloses that, no doubt, the
appellanta counsel referred the document No.1 which
shows that one of the appellant is a handicap person and
also produced the disability certificate and medical records
and ration card. Bur these documents will not come to the
aid of the appellants except for showing only the mercy.
Document No.5 relied upon is the document of registration
certificate issued by the Food Safety and Standards
Authority of India. Though defendant Nos.1 and 2 claims
before the Trial Court that they have obtained permission
from the BBMP, no such document is placed to show that
permission is given to the defendants Nos.1 and 2 to
install the shop. The photographs which have been
produced also clearly disclose that shops are on the edge
of the foot path that is document No.6 and other
photographs disclose that shops are installed on the
property of Dargah. In order to prove the factum of given
permission to install the shop premises on the Dargah
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property which is also in front of the shop of the plaintiff,
no such document is placed by the appellants to show that
such permission is given by the Dargah also. The rough
sketch produced as document No.9 disputes the location.
11. The appellants counsel contends that the shop
of Dargah and plaintiff's shop are permanent structure and
there is eight feet gap between the passage. But the fact
that defendant Nos.1 and 2 claiming the shop is on the
foot path. But the photographs disclose that said shop is
not in foot path, but the said shop is on the edge of the
foot path. The material discloses that the said property
belongs to Dargah and no permission is obtained either
from the Dargah or from the BBMP by the appellants.
Admittedly, the plaintiff is running the business in the shop
which is taken on lease belongs to the Dargah and
document of lease also depicts the same. The document
which is relied upon by the appellants discloses that the
address of location where food business is conducted is
new No.498 and old No.506, OTC Road, near Orchich
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International School, Cottonpet, Bengaluru. No such new
number was given to the appellants and mentioned the old
number as 506 is belongs to Dargah only. No material is
placed to show that they are carrying out the business in
the premises bearing No.506. The same belongs to Dargah
and while obtaining registration certificate also furnished
the number as 506. These documents are dated
09.05.2023 i.e., after filing of the suit. Suit was filed in
the year 2019 and hence, these documents are
subsequent documents. When such material is placed
before the Court, prima facie, the plaintiff establishes that
he is running the business in the premises No.506 which
belongs to Dargah and opposite to his shop only, illegal
construction was made that is installation of illegal shop
and running the business and the Trial Court rightly comes
to the conclusion that if the said business is continued in
front of the shop of the plaintiff, it affects the day-to-day
business of the plaintiff. Even no such documents are also
placed before the Trial Court by the appellants and only an
attempt is made before this Court filing additional
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documents and additional documents placed before the
Court also not comes to the aid of the appellants and no
authenticated documents are placed before the Court to
show that the appellants have either they got permission
from BBMP or from the Dargah. Hence, it is a clear case of
illegal construction and doing the business and same has
been observed by the Trial Court. The Trial Court having
taken note of the material available on record, rightly
comes to the conclusion that prima facie case has been
made out by the plaintiff. The Trial Court comes to the
conclusion that if such business is continued to be allowed,
it amounts to obstruction to the business of the plaintiff.
Hence, the very conclusion of the Trial Court that
conducting of business in illegal shop causes
inconvenience and there is a balance of convenience in
favour of the plaintiff and comes to the conclusion that it
will case hardship to the plaintiff. Hence, I do not find any
error committed by the Trial Court in granting such a relief
restraining defendants Nos.1 and 2 from carrying out the
business in front of the shops of the plaintiff. No doubt,
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the counsel for the respondents also brought to notice of
this Court that representation was given to the Dargah as
well as BBMP but they have not taken any action hence,
without any other alternative approached the Court and
sought for temporary injunction and the Trial Court has
exercised its discretion by considering material available
on record. Hence, I do not find any error committed by
the Trial Court while passing such an order.
12. In view of the discussions made above, I pass
the following:
ORDER
The miscellaneous first appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
SN
