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2012 DIGILAW 373 (KAR)

Syed Nayeem Ahmed v. Syed Altaf Ahmed

2012-04-17

H.G.RAMESH

body2012
JUDGMENT H.G. Ramesh, J.-Sri C.S. Prasanna Kumar, learned Counsel undertakes to file vakalath for respondent No. 26. This appeal by defendant Nos. 1 to 5 is directed against an interlocutory order dated 9th March, 2012 passed by the trial Court in the suit in O.S. No. 8265/2011. Learned counsel for the appellants submitted that the appellants in this appeal, are aggrieved of the aforesaid order to the extent it is extracted below: .............................................Further the aforesaid defendants 1 to 12, 29 to 44 are restrained from alienating, creating third party interest, encumbering the structures so constructed in the suit schedule properties by way of temporary injunction till disposal of the suit. For doing the same they shall seek the permission of the court.............. Learned counsel on both sides submitted that the suit schedule properties referred to above in the context means the plaint schedule "A" property. 2. I have heard Sri S.V. Giridhar, learned counsel for the appellants, Sri C. Gowrishankar, learned counsel for respondent Nos. 1 to 4 (plaintiffs) and Sri C.S. Prasanna Kumar, learned counsel for respondent No. 26. It is stated that the contesting respondents are only respondent Nos. 1 to 4 and 26. 3. Sri Giridhar, learned counsel appearing for the appellants submitted that the plaintiffs in the suit have claimed 25% share in the plaint "A" schedule property. He further submitted that there is absolutely no finding by the trial Court as to whether the plaintiffs have made out any prima facie case relating to their claim in respect of plaint schedule "A" property. 4. Learned counsel appearing for respondent Nos. 1 to 4 (plaintiffs) fairly submitted that no finding is recorded by the trial Court relating to the prima facie case of the plaintiffs. 5. The learned counsel on both sides, after arguing the matter for some time, submitted that the impugned order to the extent it is extracted above may be set aside and the matter may be remitted to the trial Court for reconsideration in accordance with law. 6. Sri Giridhar, learned Counsel for the appellants (defendant Nos. 1 to 5) and Sri C.S. Prasanna Kumar, learned Counsel for respondent No. 26 fairly submitted that the appellants and respondent No. 26 will not sell the plaint schedule "A" property without the leave of the trial Court, till the disposal of I.A. No. 3. Their submission is placed on record. Sri Giridhar, learned Counsel for the appellants (defendant Nos. 1 to 5) and Sri C.S. Prasanna Kumar, learned Counsel for respondent No. 26 fairly submitted that the appellants and respondent No. 26 will not sell the plaint schedule "A" property without the leave of the trial Court, till the disposal of I.A. No. 3. Their submission is placed on record. I accept the joint submission made by the learned counsel for the parties to remit the matter to the trial Court for reconsideration as no finding is recorded by the trial Court as to whether the plaintiffs have made out any prima facie case relating to their claim to the plaint schedule "A" property. Accordingly, I make the following order: (i) the impugned order passed on I.A. No. 3 which is extracted above is set aside; the matter is remitted to the trial Court for reconsideration in accordance with law; all contentions of both the parties are kept open; (ii) the trial Court is directed to dispose of I.A. No. 3 expeditiously and in any event before the end of June 2012. The appeal stands disposed of in the above terms. In view of disposal of the appeal, I.A. No. 1/2012 filed for interim stay does not survive for consideration; it stands disposed of accordingly.