The High Court
Case Details
- 1 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 1869 OF 2025 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO. 1880 OF 2025 (CPC) IN MFA No. 1869/2025 BETWEEN: SMT.SHANTHA W/O LATE. K.M. ANANTHARAGHAVA SHARMA, (SINCE DECEASED BY HER LR’S, THE APPELLANTS 2 & 3) 1. SRI PRAKASH ANANTHA, S/O LATE. K.M. ANANTHARAGHAVA SHARMA, AGED ABOUT 75 YEARS, RESIDENT OF NO. 46, WAKEFORD ROAD, STRATHFIELD, NSW, AUSTRALIA 2135 NOW REP BY POWER OF ATTORNEY HOLDER S SRINIVAS 2. SRI S. SRINIVAS, S/O LATE P. SITHARAMAIAH, AGED ABOUT 76 YEARS, RESIDING AT NO.439, NEW KEMPARAJA URS ROAD, KUVEMPAURAM, MYSURU-570023 (BY SRI. VIJAY A M, ADVOCATE) AND:
Legal Reasoning
1. SMT.SHANTHA W/O MR. H. GURUSWAMY, AGED ABOUT 61 YEARS, Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA …APPELLANTS - 2 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR 2. SRI H GURUSWAMY, S/O LATE HANUMAPPA, AGED ABOUT 75 YEARS, BOTH ARE RESIDING AT FLAT NO. 301, PROPERTY NO.340, 10TH A MAIN, 3RD BLOCK, JAYANAGAR, BENGALURU-560011 3. M/S SHRISHTI DEVELOPERS, A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 3, 5TH MAIN, 5TH CROSS, HANUMAGIRINAGARA, CHIKKALASANDRA, BENGALURU-560061 (REPRESENTED BY ITS PARTNER SRI G. BABU) (BY SRI. H SURESH, ADVOCATE FOR C/R1 & R2 NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DTD 05.06.2025 IN VIEW OF MEMO FILED IN COURT TO THAT EFFECT) …RESPONDENTS THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.13.02.2025 PASSED ON IN O.S.NO.7871/2024 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-42), REJECTING IA NO.3 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC AND ETC. IA NO.3/2024 IN MFA No. 1880/2025 BETWEEN: SMT.SHANTHA W/O LATE. K.M. ANANTHARAGHAVA SHARMA, (SINCE DECEASED BY HER LR’S, THE APPELLANTS 2 & 3) 1. SRI PRAKASH ANANTHA, S/O LATE. K.M. ANANTHARAGHAVA SHARMA, AGED ABOUT 75 YEARS, RESIDENT OF NO. 46, WAKEFORD ROAD, STRATHFIELD, NSW, AUSTRALIA 2135 NOW REP BY POWER OF ATTORNEY HOLDER S SRINIVAS - 3 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 …APPELLANTS HC-KAR 2. SRI S. SRINIVAS, S/O LATE P. SITHARAMAIAH, AGED ABOUT 76 YEARS, RESIDING AT NO.439, NEW KEMPARAJA URS ROAD, KUVEMPAURAM, MYSURU-570023 (BY SRI. VIJAY A M, ADVOCATE) AND: 1. SMT.SHANTHA W/O MR. H. GURUSWAMY, AGED ABOUT 61 YEARS, 2. SRI H GURUSWAMY, S/O LATE HANUMAPPA, AGED ABOUT 75 YEARS, BOTH ARE RESIDING AT FLAT NO. 301, PROPERTY NO.340, 10TH A MAIN, 3RD BLOCK, JAYANAGAR, BENGALURU-560011 3. M/S SHRISHTI DEVELOPERS, A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 3, 5TH MAIN, 5TH CROSS, HANUMAGIRINAGARA, CHIKKALASANDRA, BENGALURU-560061 (REPRESENTED BY ITS PARTNER SRI G. BABU) (BY SRI. H SURESH, ADVOCATE FOR C/R1 & R2 NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DTD 05.06.2025) …RESPONDENTS THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 13.02.2025 PASSED ON I.A. NO.II IN O.S.NO. 7871/2024 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCCH.42), REJECTING I.A. NO.II FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ETC. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT The present appeals are filed calling in question the common order dated 13.02.2025 passed on IA.Nos.2 and 3/2024 in OS.No.7871/2024 by the XLI Additional City Civil and Sessions Judge, Bengaluru City (CCH-42)1. 2. The relevant facts leading to the present appeals are that the appellants/plaintiffs instituted a suit in OS.No.7871/2024 seeking for an injunction against the defendants from interfering with or causing any obstruction to the plaintiffs peaceful possession and enjoyment of the suit Schedule-B properties as well as for an unfettered right of using and accessing the terrace penthouse unit No.402 (item No.5 in the schedule-B properties) and the roof above and for other reliefs. The said suit is contested by the defendants. The plaintiffs filed inter-alia IA.Nos.2/2024 under Order XXXIX Rule 1 and 2 read with Section 151 of the Code Of Civil Procedure, 19082 to direct defendant Nos.1 and 2 to remove the 1 Hereinafter referred as to ‘Trial Court’ 2 Hereinafter referred as to ‘CPC’ - 5 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR construction materials, doors, windows, old furniture etc., which have been put in the roof area above the fourth floor of penthouse units in the building, as also IA.No.3/2024 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to restrain defendant Nos.1 and 2 from pasting any posters containing any message concerning the plaintiffs in the common area of the apartment building situated in the schedule-A property. The said interim applications have been opposed by the defendants. The Trial Court vide order dated 13.02.2025 dismissed the applications. Being aggrieved, present appeals are filed. 3. Heard the submissions of learned counsel Sri A.M.Vijay appearing for the appellants and learned counsel Sri H.Suresh appearing for the caveator – respondent Nos.1 and 2. 4. The essence of the case of the parties is that the plaintiffs/appellants are the land owners of the schedule-A property and respondent No.3/defendant No.3 is the developer who has put up construction of a multistoried residential apartment complex in the suit schedule-A property pursuant to - 6 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR the registered Joint Development Agreement dated 08.02.20183. Under the said JDA ground, 1st, 2nd and 3rd floors have been constructed, whereunder two residential units have been constructed in each of the floors. In the fourth floor portion, two penthouse units have been constructed. The parties are also claiming rights to put up further construction in the terrace portion above the fourth floor. Item Nos.1 to 4 in the schedule-B properties are the apartments situated in the ground and first floor, which have fallen to the share of the land owner in terms of the JDA. Item No.5 of the schedule-B properties is the penthouse apartment bearing No.402 situated in the fourth floor, in respect of which right, title and interest is sought to be claimed by the plaintiffs/land owners, which is denied by respondent No.3/builder. Defendant No.1 is the agreement holder in respect of an apartment in the second floor and defendant No.2 is the owner of an apartment in the third floor. 5. Vide IA.No.3/2024 the plaintiffs have sought for an injunction to restrain defendant Nos.1 and 2 from pasting any 3 Hereinafter referred as to ‘JDA’ - 7 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR posters containing any message concerning the plaintiffs in the common areas of the apartment building. Vide the said application, plaintiffs allege that the defendant Nos.1 and 2 are pasting various posters containing alleged false information which are prejudicial to the interest to the plaintiffs. In support of the said contention a memo dated 05.06.2025 has been filed by placing various photographs of such posters that have been pasted. 6. It is clear from the aforementioned that the parties are litigating with regard to their right, title and interest in respect of various portions of the residential apartment, complexes constructed in the schedule-A property. The inter se rights of the parties are required to be adjudicated in the suit. Until such time, both the parts are required to maintain a basic prevailing sense of decorum in the suit schedule property so as not to prejudice the rights of one another during the pendency of the litigation. In view of the same, it is just and proper that the reliefs sought for by the appellants/plaintiffs in IA.No.2/2024 filed before the Trial Court be granted with a suitable order to restrain the plaintiffs also in similar terms. - 8 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR 7. IA.No.2/2024 has been filed by the plaintiffs before the Trial Court for an order of mandatory injunction directing defendant Nos.1 and 2 to remove the construction materials, doors, windows, old furnitures, etc., which have been kept in the roof area above the fourth floor penthouse. 8. Learned counsel for the appellants submits that the plaintiffs have been prevented from accessing the penthouse apartment No.402 situated in the fourth floor. Learned counsel for the respondents denies the fact that any material has been placed in the terrace portion. 9. It is relevant to note that any right, title and interest that may be claimed by the appellants/plaintiffs in respect of the penthouse apartment No.402 is the subject matter for consideration in the suit. Suffice to note that since the appellants/plaintiffs are claiming right, title and interest in respect of the penthouse apartment No.402 situated on fourth floor as also construction rights in the terrace portion situated above the fourth floor, which aspect has to be adjudicated upon in the suit, pending such adjudication, it is just and proper that no act to be done by the defendants which shall in any manner - 9 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR cause prejudice to the rights of the plaintiffs with regard to the penthouse apartment No.402 situated on the fourth floor. 10. In view of the discussion made above, the following:
Decision
ORDER i. The above appeals are partly allowed; ii. The order dated 13.02.2025 passed on IA.Nos.2 and 3/2024 in OS.No.7871/2024 by the XLI Additional City Civil and Sessions Judge, Bengaluru City (CCH-42) is set aside; iii. IA.No.2/2024 filed in OS.No.7871/2024 is disposed of by directing that no material shall be placed in the terrace portion above the fourth floor which shall in any manner cause any deterioration with regard to apartment No.402 situated in fourth floor of the schedule-A property; iv. IA.No.3/2024 filed in OS.No.7871/2024 is disposed of by directing both the parties not to paste any posters containing any message concerning either of the - 10 - NC: 2025:KHC:19185 MFA No. 1869 of 2025 C/W MFA No. 1880 of 2025 HC-KAR parties in the common areas of the apartment building situated in the schedule-A property including staircase, lifts, lobbies, notice boards, corridors or on the doors of the apartments owned by other parties; v. The observations made by the Trial Court in the order dated 13.02.2025 as well as this Court in the above appeals are only for the purpose of consideration of IA.Nos.2 and 3/2024 and the Trial Court shall proceed further with the adjudication of the suit being uninfluenced by the observations made herein. Sd/- (C.M. POONACHA) JUDGE PNV List No.: 2 Sl No.: 10