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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14^TH DAY OF NOVEMBER, 2022

BEFORE

THE HON9BLE MR. JUSTICE RAVI V. HOSMANI

MISCELLANEOUS FIRST APPEAL NO.5063 OF 2022 (CPC)

BETWEEN:

1.

SRI. ABDUL ALEEM

S/O LATE ABDUL RASHEED

AGED ABOUT 53 YEARS

R/A FLAT NO.002

SKYLINE MANOR NO.7 & 8

BRIDE STREET

RICHMOND TOWN

BENGALURU-560 025.

2.

SMT. REHANA SULTANA

W/O SRI ABDUL ALEEM

AGED ABOUT 45 YEARS

R/A FLAT NO.003 & 301

SKYLINE MANOR NO.7 & 8

BRIDE STREET

RICHMOND TOWN

BENGALURU-560 025.

&APPELLANTS

[BY SRI S.P.KULKARNI, SENIOR COUNSEL FOR

SRI SRIKANTH PATIL K.,

& SRI CHANDRAKANTH PATIL K., ADVOCATES (PH) ]

AND:

SKYLINE MANOR OWNERS' APARTMENTS

ASSOCIATION,

AN ASSOCIATION FORMED BY

VIRTUE OF ALLEGED

DEED OF DECLARATION

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EXECUTED UNDER

KARNATAKA APARTMENT

OWNERSHIP ACT, 1972

PROPERTY NO.7 & 8,

BRIDE STREET,

BENGALURU-560 025.

REP. BY ITS PRESIDENT

SRI. P.S.PONNAPPA.

&RESPONDENT

[BY SRI LOMESH KIRAN N., ADVOCATE FOR

SRI SRINIVAS L., ADVOCATE (PH)]

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43

RULE 1(r) OF CPC., AGAINST THE ORDER DATED 13.04.2022 PASSED ON

I.A.NO.1 IN O.S.NO.647/2022 ON THE FILE OF THE LXIX ADDITIONAL

CITY CIVIL AND SESSIIONS JUDGE, BENGALURU, (CCH-70) ALLOWING

I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 12.10.2022, THIS DAY, THE COURT PRONOUNCED THE

FOLLOWING:

JUDGMENT

Challenging order dated 13.04.2022 passed on I.A.No.1 by

LXIX Addl. City Civil and Sessions Judge, Bengaluru (CCH-70), in

O.S.No.647/2022, this appeal is filed by defendants no.1 and 2.

2.

O.S.no.647/2022 was filed seeking for declaration that

members of plaintiff association are entitled to easementary rights

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in respect of passage of air and light, right to privacy necessary for

full and uninterrupted utilization and enjoyment of their respective

apartment units in 8A9 schedule property and for permanently

restraining defendants from undertaking action in violation of Deed

of Declaration and bye-laws and provisions of Karnataka Apartment

Ownership Act, 1972 (hereinafter referred to as 8KAO Act9 for

short) in 8A9 schedule property from carrying out illegal construction

and for mandatory injunction directing defendants to remove all

illegal construction which are not in accordance with sanctioned

plan and violate easementary rights of members of plaintiff

association etc.

3.

Along with plaint, plaintiffs had filed interim application

I.A.no.I under Order XXXIX Rule 1 and 2 of Code of Civil Procedure,

1908 (hereinafter referred to as 8CPC9 for short) for restraining

defendants from undertaking any action which were in violation of

Deed of Declaration, byelaws and provisions of KAO Act and from

carrying out illegal construction as exhibited in documents no.9, 12

and 13 colly in schedule 8C9 property in violation of easementary

rights of member of plaintiff association. In affidavit filed in support

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of application, it was stated that plaintiff was an association

consisting of members who were apartment owners of Skyline

Manor Condominium Residential Apartment Building (hereinafter

referred to as 8Apartment Complex9 for short) constructed on land

bearing municipal nos.7 and 8 (old no.6) Bride Street, Langford

Road, Richmond Road, Corporation Ward no.76, Bengaluru, which

was 8A9 schedule property.

4.

It was stated that erstwhile owner 8A9 schedule

property viz., Mr. Attar Syed Zakir Hussain executed Deed of

Declaration dated 12.10.2000, in respect of 8A9 schedule property

and submitted same under KAO Act and became a member of

plaintiff association. Deed contained byelaws regulating conduct of

members of plaintiff association inter se and for managing

administrative and financial affairs of Apartment Complex. It also

provided for management and maintenance of common amenities,

facilities and open spaces. It was further stated that President