Karnataka High Court
Sri.S.A. Bari vs Sri.Syed Taufiq Ahmmed on 5 September, 2024
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NC: 2024:KHC:36782
MFA No. 2018 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
M.F.A. NO. 2018 OF 2024 (CPC-)
BETWEEN:
SRI.S.A. BARI
AGED 84 YEARS,
S/O. LATE SRI S.A. SALAM SAHEB
RESIDING AT NO.370/A, 1ST FLOOR,
5TH CROSS, LAKSHMI LAYOUT,
ARAKERE MICO LAYOUT
BANNERUGATTA ROAD
BENGALURU-560076
...APPELLANT
(BY SRI. LANKESH L., ADVOCATE)
AND:
Digitally
signed by
MEGHA SRI.SYED TAUFIQ AHMMED
MOHAN S/O. LATE SRI. MOHAMMED HANEEF
Location: AGE 55 YEARS
HIGH COURT
OF R/AT NO.13, GROUND FLOOR,
KARNATAKA TCM ROYAN ROAD, 1ST CROSS
CITY MARKET, BENGALURU-560053
...RESPONDENT
(BY SRI. SKANDA KUMAR, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 12.12.2023 PASSED ON I.A.NO.1/2023 AND 2/2023 IN
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NC: 2024:KHC:36782
MFA No. 2018 of 2024
OS.NO.25178/2023 ON THE FILE OF THE XXVIII ADDITIONAL
CITY CIVIL JUDGE, MAYO HALL UNIT, CCH-29, BENGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed in I.A.No.1/2023 in
O.S.No.25178/2023 dated 12.12.2023, by XXVIII Addl. City
Civil Judge at Mayo Hall Unit (CCH-29), Bangalore, the
appellant/defendant is before this Court.
2. The respondent herein had filed a suit seeking a
direction to the defendant to execute the sale deed in favour of
the plaintiff in respect to the ground and first floor of the suit
schedule property and to put the plaintiff in physical possession
of the first floor of the property. In the event, the defendant fail
to execute the sale deed, direct the Registry to execute the sale
deed. In that, he had filed the IA seeking temporary injunction
restraining the defendant from alienating, transferring,
mortgaging and dealing with the suit schedule property in any
manner or by creating any third party rights in respect of the
suit schedule property. The trial Court by the order impugned,
had allowed the said application directing both the parties to
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maintain status-quo regarding possession and ownership on the
suit property till the disposal of the suit. Aggrieved thereby, the
appellant/defendant is before this Court.
3. It is the specific case of the plaintiff that the
defendant is the absolute owner of the property. The defendant
had agreed to sell the ground floor of the property in favour of
the plaintiff for total consideration of an amount of
Rs.7,00,000/- which consist of one hall, one dining hall, one
bedroom, one toilet and one separate bathroom. The defendant
has received the entire sale consideration in respect of the
ground floor of the property and the same has been confirmed
by the defendant on 30.06.2012. Subsequently, the defendant
has also agreed to sell the entire first floor of the schedule
property for a sum of Rs.10,00,000/- in favour of the plaintiff,
which sum was acknowledged by the defendant, as the same
was being paid by the wife of the dependent, who is none other
than the sister of the plaintiff. According to the plaintiff, he had
paid an amount of Rs.17,00,000/- to the defendant in respect
of both the ground and first floor and nothing remains to be
paid from the plaintiff. Even after paying the entire sale
consideration, the defendant on one pretext or the other, has
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postponed the execution of the sale deed. The plaintiff has
issued a notice on 06.01.2023 calling upon the defendant to
execute the sale deed. When there was no response, the
plaintiff was constrained to file the present suit. The defendant
had filed his written statement, wherein he denied the
execution of the sale deed. It is stated that the elder brother of
the plaintiff namely Sri.Syed Farooq was inducted as tenant in
the ground floor of the suit property vide rental agreement
dated 08.09.1999 on monthly rent basis for sum of Rs.1,000/-
per month. During the year 2000, the said Syed Farooq Ahmed
has vacated the ground floor and then being younger brother of
Syed Farooq Ahmed, the plaintiff has occupied the ground floor
of the suit property. The plaintiff is the brother-in-law of the
defendant. Hence, there was no necessity of creating fresh
lease/rent deed in favour of the plaintiff and based on the
previous rental deed of his brother, the plaintiff had continued
as tenant in the ground floor of the suit property and for initial
periods, he paid the rents regularly and later he became a
chronic defaulter in rent and all efforts of the defendant to
recover balance rent from the plaintiff gone to vain. He has
approached the plaintiff's brother but he did not help the
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defendant. It is stated that now the plaintiff is staying in the
ground floor of the suit schedule property as tenant without
paying any rents to the defendant and he has also filed a
eviction suit and the same is pending consideration. The trial
Court while passing an order had observed about the pending
civil suit and also a suit that is filed by the plaintiff basing on a
receipt dated 30.06.2012 and the issue of limitation, which has
to be gone into at the time of trial and the court has observed
that the document available on record shows some payment is
received by the defendant from the plaintiff. Plaintiff claims that
it is the sale consideration towards the suit property. The
defendant even though filed detailed written statement, did not
explain what was the said amount. However, he claims that no
relief can be claimed under the said receipt and it is a
concocted one. The Court further observes that at this stage,
the said ground also cannot be accepted in toto as it requires
full fledged trial. It is an admitted fact that the plaintiff is in
possession of the suit property. However, defendant already
initiated eviction proceedings. Under these circumstances, it
would be appropriate to direct both parties to maintain status
quo regarding possession and ownership of the suit property till
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disposal of the suit. Accordingly, the Court had passed an order
of status quo.
4. Learned counsel appearing for the appellant
submits that the receipt of the year 2012, they have never
executed the said receipt. Even assuming that without
accepting such a receipt is executed, which is of the year 2012,
basing on that suit for specific performance cannot be filed. It
is submitted that he is an occupation of the ground floor of the
building and even the receipt speaks about Rs.7,00,000/- that
is with regard to the ground floor, according to the plaintiff, he
had paid a sum of Rs.10,00,000/-. No receipt is filed in that
regard and when he has paid also not mentioned. The Court,
without any basis has granted an order of status quo in respect
of the ground floor and the first floor of the property. He
submits that the order i.e., passed by the trial Court is without
any basis, without looking at the material placed on record and
contrary to law and the same is liable to be set-aside.
5. Learned counsel appearing for the respondent/
plaintiff submits that the defendant has filed a suit for eviction
i.e., S.C.No.392/2023, on the file of the II Additional C.J.M.
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Court of Small Causes, seeking eviction. The trial Court had
dismissed the said eviction petition. The Court has observed
that the plaintiff landlord did not produce the original Rental
Agreement dated 08.09.1999. In the cross examination, he
admitted that there is no tenant and owner relationship
between the plaintiff and the defendant. He also admitted that
O.S.No.25179/2023 is pending between the defendant and the
plaintiff for specific performance of contract. He also admitted
that after receipt of the summons of the suit, he filed the
present suit. When the said suit is pending for determination of
their rights and as there is no relationship between the plaintiff
and defendant as owner and tenant, then question of
entertaining the suit for eviction does not arise. Hence, it is
held that the plaintiff has failed to prove that the suit is
maintainable and accordingly, dismissed the suit. Learned
counsel further submits that so far no appeal is filed against the
said judgment passed by the court. He submits that he is in
occupation of the property and there is no dispute about the
fact and the trial Court had rightly passed an order to maintain
status quo and no grounds are made out seeking interference
with well considered order passed by the trial Court.
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6. Having heard the learned counsel on either side,
perused the material on record. Basing on the receipt dated
30.06.2012, the plaintiff is seeking specific performance and
direction to the defendant to execute the sale deed in respect
of the ground floor and first floor of the suit schedule property.
The receipt speaks about the ground floor portion and
admittedly, the plaintiff is also in possession of the ground floor
of the property. According to him, he paid an amount of
Rs.10,00,000/- in respect of the first floor and when is the date
of payment, what is the receipt and there is no other material
placed before the Court. The eviction suit i.e, filed by the
plaintiff is dismissed, which also shows the possession of the
defendant in respect of the ground floor. The trial Court had
rightly observed that basing on a receipt dated 30.06.2012,
whether the Court can order the specific performance and
direct the defendant to execute the sale deed, the law of
limitation and all those aspects have to be considered after a
full fledged trial. Now at this point of time, Court has to only
consider whether the plaintiff is entitled for injunction. The trial
Court had rightly considered about the possession of the
defendant, but while passing an order the court had directed to
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maintain status quo in respect of the suit scheduled property
i.e., the ground floor and the first floor. The order of
maintaining status quo in respect of the ground floor, the Court
was right, but when it comes to the first floor, there is no
material on record to show that the plaintiff has paid any
amount and the receipt is pertaining to ground floor. In that
view of the matter, the order passed by the trial Court is
modified and there shall be a status quo in respect of ground
floor of the suit schedule property.
7. Accordingly, this Court is passing the following:
ORDER
(i) There shall be an order of status quo in respect of
ground floor of the suit schedule property.
(ii) Accordingly, the appeal is partly allowed by modifying
the order dated 12.12.2023 passed on I.A.No.1/2023
in O.S.No.25178/2023 by the XXVIII Addl. City Civil
Judge at Mayo Hall Unit (CCH-29), Bangalore.
(iii) All IAs. in the appeal shall stand closed.
SD/-
KA (LALITHA KANNEGANTI)
List No.: 1 Sl No.: 12 JUDGE
