Karnataka High Court
Sri Sunil Chajed D vs Hewlett Packard(India) Software ... on 22 December, 2021
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
W.P. NO.23500/2021 (GM-CPC)
BETWEEN:
1. SRI SUNIL CHAJED D
S/O LATE H.DEVICHAND
AGED ABOUT 46 YEARS.
2. SRI RAJESH D
S/O LATE H.DEVICHAND
AGED 44 YEARS.
REPRESENTED BY THEIHR GPA
HOLDER SRI NABHIRAJA HERA
S/O LATE B.T.JAIN, AGED ABOUT
65 YEARS, NO.29, KHB COLONY
NEAR GANESHA TEMPLE
6TH BLOCK, KOROAMANGALA
BENGALURU-560 095.
... PETITIONERS
(BY SHRI VIJAYKUMAR K, ADVOCATE)
AND:
HEWLETT PACKARD (INDIA)
SOFTWARE OPERATIONS
PRIVATE LIMITED
HAVING REGISTERED OFFICE AT NO.192
WHITEFIELD ROAD
MAHADEVAPURA
BENGALURU-560 048.
... RESPONDENT
(BY SHRI ARUNKUMAR, SENIOR COUNSEL
FOR SHRI M.V.SUNDARA RAMAN, ADVOCATE FOR C/R)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 01.12.2021 PASSED ON
APPLICATIOIN UNDER ORDER VI RULE 17 READ WITH
SEC.151 OF CPC FILED BY THE PETITIONERS
(ANNEXURE-A) AND CONSEQUENTLY ALLOW
APPLICATION UNDER ORDER VI RULE 17 READ WITH
SEC.151, CPC BY ALLOWING THIS PETITION AND
ALTERNATIVELY TO SET ASIDE THE ORDER DATED
13.12.2021 PASSED ON APPLICATION UNDER ORDER
XXIII RULE 1(3) READ WITH SEC.151 OF CPC
(IMPUGNED AS ANNEXURE-B, ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This Court, while disposing of the petitioners' earlier petitions viz., W.P. No.11761/2021 and W.P. No.5540/2021 on 31.08.2021 has recorded certain unanimous submissions and has permitted the petitioners [in OS No. 26187/2014 on the file of the LXXIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru [for short, 'the civil Court'] to seek declaration of title to the land measuring 11 guntas in Survey No.91/1A [and according to the respondent, this land is Sy No. 91/1] of B.Narayanapura Village, K.R.Puram, Bengaluru 3 South Taluk, with leave to amend the eastern boundary of the larger extent of land claimed by the petitioners as the respondent's remaining land in Survey No.91/1A of B.Narayanapura Village, K.R.Puram, Bengaluru South Taluk.
2. This Court has further directed the civil Court to dispose of the suit expeditiously within an outer limit of three months from the date of receipt of a certified copy of this order. It is undisputed that the petitioners have not even carried out the amendment in terms of this permission, and it is accepted that the time granted by this Court for disposal would end in the first week of January 2022.
3. Shri Arunkumar, learned senior counsel for the respondent, points out that the respondent has consented for permission to the petitioner to seek declaration of title and for possession (in terms of the concession made in R.P. No.315/2021 which disposed of on 09.11.2021) only to ensure that there 4 is complete adjudication of the petitioners' claim over the land described by them as Survey No.91/1A of B. Narayanapura Village, K.R.Puram, Bengaluru South Taluk, and the respondent to show bonafides has also agreed to deposit a sum of Rs.3.00 crores subject to the final adjudication of the petitioners' claim; however the petitioners have not co-operated with the civil Court in the disposal of the suit within the time directed by this Court. He also emphasizes that except for cross-examination of the petitioners' witnesses on one occasion, there is no progress in the suit except for filing applications.
4. The petitioners have presently filed two applications; one under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 [for short 'the CPC'] followed by another application under Order XXIII Rule 1(3) read with Section 151 of CPC. The civil Court has rejected these applications by its respective orders dated 01.12.2021 and 13.12.2021. The petitioners, after being unsuccessful in their 5 application under Order VI Rule 17 read with Section 151 of CPC, have filed their next application under Order XXIII Rule 1(3) read with Section 151 of CPC.
5. The petitioners' application for amendment is elaborate not only in the pleadings that they want to bring on record but also for substitution in the plaint schedule. They want to substitute the earlier schedule with new Schedules i.e., the description of the larger land as Schedule 'A' and their claim against the respondent as Schedule 'B' contending that Schedule 'B' is a part of Schedule 'A'. The application filed under Order XXIII Rule 1(3) read with Section 151 of CPC is for withdrawal of the suit with leave to file a comprehensive suit on the same cause of action asserting formal defect.
6. In the light of the grounds urged on behalf of the petitioners, this Court had called upon Shri Arunkumar, learned senior counsel, to respond on the permissibility of the application for amendment 6 with the petitioners giving up their application under Order XXIII Rule 1(3) read with Section 151 of CPC in the light of the fact that the respondent has always stated that it would want a decision on merits. In response, the learned senior counsel submits that with liberty to the respondent to file an additional written statement, the petitioners could be permitted to amend the plaint so that there is an adjudication of their claim over a portion of the respondent's property. The learned senior counsel takes pains to emphasize that this Court pass must necessary order that would ensure that the suit is decided expeditiously and in a time-bound manner with the petitioners undertaking to co-operate with the Civil Court in such expeditious disposal.
7. Shri Vijay Kumar, learned counsel for the petitioners, responds stating the petitioners have not carried out the amendment as permitted only because the petitioners wanted to present their in terms of the amendment now proposed and otherwise 7 the petitioners, who have utmost respect for the due process, shall co-operate and assist with the civil Court in the disposal of the suit on merits. When called upon, an affidavit by the petitioners' power of attorney is filed, and this affidavit in its material part reads as under:
"I submit that I will undertake to prosecute the suit in O.S. N o.26187/2014 pending on the file of LXXIII Additional City Civil & Sessions Judge, Mayohall unit, Bengaluru (CCH-74) in accordance with law within April 2022, without seeking adjournments except under unavoidable circumstances if any arises, subject to co-operation of the defendant/respondent."
8. Shri Vijaykumar also submits that the petitioners will not require the respondent to extend the Bank Guarantee to comply with the undertaking given on earlier occasions as the petitioners are now permitted to recover possession of the dispute area. This submission is taken on record, and the 8 respondent shall be entitled take advantage of the same.
9. This Court, on the perusal of the previous orders and on anxious consideration of the contours of the controversy in the light of the consistent statement made on behalf of the respondent that the respondent would desire complete adjudication, is of the view that the petitioners must be permitted, as canvassed, to give up their application under Order XXIII Rule 1(3) read with Section 151 of CPC and to amend the plaint as conceded by the respondent but without any prejudice to the respondent's rights to file additional written statement taking all permissible contentions including any oscillation in the petitioners' plea as regards their allegation of encroachment by the respondent and demarcation of the encroached portion. Hence, the following:
ORDER [a] The petition stands disposed of modifying the civil Court's impugned orders 9 allowing the petitioners' application for amendment and permitting them to amend the plaint the file the amended petition in terms of the application now filed but excluding reference to the total measurements within the alphabets A to G as requested.
[b] The petitioners are permitted to withdraw their application under Order XXIII Rule 1(3) of CPC even without waiting for a certified copy on the next date of hearing before the civil Court, which is 23.12.2021. [c] The petitioners shall also file the amended plaint and proper valuation slip on the next date as would be permitted by the Civil Court. The respondent shall be entitled to file additional Written Statement as now permitted.10
[d] The petitioners, in terms of the undertaking given before this Court, shall assist and co-operate with the Civil Court, notwithstanding the 'unavoidable circumstances' referred to therein, for closure of the suit on merits before the commencement of Summer Vacation, 2022. [e] This Court, in the circumstances of the case, shall deal with the requests for adjournment strictly but as it would find appropriate and imposing exemplary costs per day.
SD/-
JUDGE vgh*