Akbar Burhan vs Ahmed Khan on 21 January, 2021

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Karnataka High Court

Akbar Burhan vs Ahmed Khan on 21 January, 2021

Bench: Krishna S.Dixit

                           1
  IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 21ST DAY OF JANUARY, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.13309 OF 2017(GM-CPC)

BETWEEN:

AKBAR BURHAN,
S/O LATE AHMED BURHAN,
AGED ABOUT 72 YEARS,
R/AT NO.17-A, 5TH MAIN ROAD,
RAHAMATHNAGAR,
BANGALORE-560 032.
                                        ... PETITIONER
(BY SRI. MASKOOR HASHMI, ADVOCATE)

AND:

1. AHMED KHAN,
   S/O HAYATH KHAN,
   AGED ABOUT 77 YEARS,
   RA/T NO.110, 8TH MAIN ROAD,
   R.T.NAGAR, BANGALORE-560032.
   AS PER V.C.O DATED 14.01.2019
   R1 IS DELETED.

2. SMT FAZILA A,
   W/O MULLA MOHAMMED ASLAM,
   AGED ABOUT 41 YEARS,
   R/AT NO.173/33/2, REHAN LAYOUT,
   NEXT TO BALAJI LAYOUT,
   HEGDE NAGAR, BANGALORE.
                                        ...RESPONDENTS
(BY SRI. SATISH, ADVOCATE FOR R2;
    V.C.O DATED 14.01.2019 R1 IS DELETED)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDERS PASSED BY THE XXV ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE IN O.S.6479/2006 ON
I.A.NO.1 DATED 17.02.2017 UNDER THE ORIGINAL OF ANNX-
E.
    THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH PHYSICAL HEARING, THE COURT MADE THE
FOLLOWING:-
                                2

                        ORDER

Petitioner being the plaintiff in Ejectment Suit in O.S.No.6479/2006 is invoking the writ jurisdiction of this Court for assailing the order dated 17.02.2017 whereby the application under Order I Rule 10 of CPC, 1908, filed by the 2nd respondent herein having been favoured, the applicant is permitted to be impleaded as 2nd defendant in the suit in question.

2. After service of notice, the respondents having entered appearance through their counsel resist the writ petitions making submission in justification of the impugned order.

3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter inasmuch as the Court below has acted upon the judgment in earlier suit in O.S.No.17704/2005 filed by the petitioner herein against the 1st defendant herein and the 2nd respondent was not a party thereto; in such a situation, case of the respondent No.2 does not fit into Apex Court decision in RAZIA BEGUM -vs- SAHEBZADI ANWAR BEGUM, AIR 1958 SC 886 and therefore, his impleadment cannot be sustained, 3 though he claims title over the same property; this aspect having not been adverted to by the court below, there is an error apparent on the face of the record warranting indulgence of this court.

4. Even otherwise the impleading application could not have been favoured since the 2nd respondent herein can frame his own suit in case he has any interest over the subject property regardless of the finding entered in the judgment entered in O.S.No.17704/2005 since he was not a party thereto and in this regard all contentions of the parties are kept open.

In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the 2nd respondent's application in I.A.1 filed order I Rule 10 of CPC, 1908 is dismissed subject to observations made hereinabove.

Learned Judge of court below is requested to try & dispose off the suit in one year.

No costs.

Sd/-

JUDGE Snb/

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