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Mohammed Nazir Ahmed & Another v/s Balasubramanyam Sampath

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Miscellaneous First Appeal No. 7951 of 2019 (CPC)

    Decided On, 08 January 2020

    At, High Court of Karnataka


    For the Appellants: Ashok B. Patil, Advocate. For the Respondent: C. Venkatesha, Advocate.

Judgment Text

(Prayer: This miscellaneous first appeal is filed under order 43 rule 1(r) of CPC, against the order dated 25.06.2019, passed on IA. No.1 and 2, in O.S.No. 1749/2019 on the file of the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26), allowing 1A No. 1 filed under XXXIX Rule 1 and 2 real with Section 151 of CPC and rejecting the I.A. No.2 filed under order XXXIX rule 4 read with section 151 of CPC.)1. Heard the learned counsel for the appellant and the respondent and also perused the impugned order.2. This appeal is filed by the defendants in O.S.No. 1749/2019 on the file of the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) (for short, ‘civil Court’) calling in question the order dated 25.06.2019. The civil Court by the impugned order has allowed the application (IA No.1) filed by the respondent under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1903 restraining the appellants– defendants from interfering with the respondent – plaintiff’s possession of the residential apartment identified as bearing No. 501. 5th floor of ‘Neha Lotus’, Madiwala, Begur Hobli, Bengaluru South Taluk (for easy reference, ‘the subject apartment’).3. The dispute is between the owner, who offered open land admeasuring 3132 sq.ft. identified as site No.1 in different survey numbers viz., 85/1, 88/2, 88/3 and 87/2 of Madiwaia village. Behur hobli, Bengaluru South Taluk for development, and the transferee who has purchased the subject apartment from the developer who has constructed multi dwelling building named ‘Neha Lotus’ in the aforesaid open property. There is no dispute that the appellant No.1 offered the aforesaid open property bearing No.1 for joint development under an appropriately executed Joint Development Agreement, and the developer, acting in performance of the terms of the Joint Development Agreement, has constructed multi dwelling building comprising of basement, ground floor and five upper floors. The dispute is with regard to the construction in the fifth floor.4. Further, it is undisputed that the appellant No.1 and the developer executed inter alia Agreement dated 7.4.2015 in terms of which, they, while reiterating allocation of apartments in the ground floor and four upper floors, also agreed that each of them would be entitled to an apartment in the fifth floor with the appellant No.1 being entitled for apartment identified as No. 502 measuring 1550 sq. ft. and the developer being entitled to apartment bearing No. 501 measuring 1500 sp. ft.5. The dispute between the appellant No.1 owner of the land, and the respondent, who claims title to the subject Apartment – one of the apartments in the fifth floor through the developer under the Sale Deed dated 1.2.2016 (which is subsequently rectified vide Rectification Deed dated 24.2.2016), is because the appellant No.1 contends that the developer abandoned construction without constructing the two residential apartments as required in the fifth floor. The appellant No.1 being entitled to the apartment No. 502 (with super built up area measuring 1550 sq. ft), has constructed such apartment from his own resource. The developer has not constructed any apartment in the fifth floor. The BBMP, the competent local authority, while permitting for bifurcation of katha, has also recorded that the appellant No.1 is constructing the apartment measuring 1550 sp. ft. in the fifth floor. The respondent, acting in collusion with the builder, has secured the Sale Deed dated 1.2.2016 and the subsequent Rectification Deed. He has unlawfully entered into possession of the apartment.6. The learned counsel for the appellants submits that the records indubitably demonstrate that the respondent has taken possession of the apartment unlawfully, and the settled law is that a person cannot take advantage of his own unlawful acts and be entitled for the discretionary relief of temporary injunction. The civil Court vide the impugned order has granted temporary injunction against the appellant without considering this settled proposition of law that would squarely apply to the facts and circumstances of the case. However, the learned counsel for the appellants does not controvert that the respondent, who had access to the subject apartment as of the date of the suit (though the learned counsel reiterates that such possession is unlawful), has inducted a third party in possession of the subject apartments under a rental arrangement, and the respondent is receiving rents from such third party.7. The learned counsel for the appellants after arguing for sometime submits that the appeal could be disposed of with liberty to the appellants to make an appropriate application for interim arrangement in the changed circumstances in the suit with the observation that the civil Court, which has not decided on the question of prima facie rights of the appellants to the possession of the subject apartments, shall decide such application without being influenced by any findi

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ng or observation in the impugned order.8. The learned counsel for the respondent submits that the appeal could accordingly be disposed of with liberty to the respondent to take up all such contentions as would be available to him in defence against such application.9. In the light of these submissions, with liberty as sought respectively by the learned counsel for the appellants and the respondent, the appeal is disposed of.In view of disposal of the appeal, the pending application does not survive for consideration, and is accordingly disposed of.