Karnataka High Court
Sri Abdul Rehman @ Munawar vs Sri N Vijayakumar on 30 January, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION Nos.43815-43816/2016 (GM-CPC)
BETWEEN:
SRI. ADBUL REHMAN @ MUNAWAR,
AGED ABOUT 47 YEARS,
S/O ABDUL SATTAR,
PROPRIETOR,
S.B. ENGINEERING WORKS,
SHOP PREMISES BEARING OLD NO.70/2,
PRESENT NO.73/2,
SITUATED AT B.USMAN KHAN ROAD,
N.R. ROAD CROSS,
BENGALURU - 560 002. ... PETITIONER
(BY SRI: S. SUBHASH, ADVOCATE FOR M/S. KUMAR & KUMAR,
ADVOCATES)
AND:
SRI. N. VIJAYAKUMAR,
AGED ABOUT 45 YEARS,
S/O LATE M.C. NARAYANASWAMY
RESIDING AT NO.1,
E.V. LANE, THIGALARA PETITIONER,
BENGALURU - 560 002. ... RESPONDENT
(BY SRI: RAMESH P. KULKARNI, ADVOCATE)
*****
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 03.07.2014 PASSED BY III ADDL. CITY CIVIL
JUDGE, BENGALURU IN O.S. NO.6688/2004 AT ANNEX-G AND
ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING - 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
These writ petitions are listed for preliminary hearing 'B' group along with I.A.No.1/17 for vacating the interim order of stay granted by this Court on 22.08.2016 and extended on subsequent dates. With the consent of learned counsel on both sides, it is heard finally.
2. Petitioner herein was the defendant in OS No. 6688/2004. That suit was filed by the respondent plaintiff seeking ejectment of petitioner herein from the suit schedule property. The details of the suit property is appended to the plaint filed in the suit by way of a schedule. Learned counsel for the respective parties 3 submit that the suit was decreed by the trial Court and thereafter, RFA No. 633/2011 was filed before this Court. By judgment dated 11.04.2012, this Court has dismissed the First Appeal and the decree of the trail Court has been confirmed. Execution proceedings have been filed. In those proceedings, an application under Order XXI Rule 97 read with 151 of the Code of Civil Procedure was filed by the obstructers. While considering that application, the respondent-plaintiff filed an application under Sections 152 and 151 of Code of Civil Procedure, 1908 (CPC) before the trial Court seeking amendment of the decree. The trial Court by order dated 03.07.2014 has permitted correction in the number of the suit schedule property in the plaint as well as in the judgment and decree. That order is impugned in these writ petitions.
3. Petitioner's counsel submits that the petitioner had no opportunity to object to the said application and 4 neither he nor his counsel was heard in the matter. That the impugned order has been passed without considering any objections or arguments on the side of the petitioner herein. The said order is one sided and in violation of the principles of natural justice and therefore the same may be quashed.
4. Per contra, learned counsel for the respondent supported the impugned order and has brought to my notice the communication dated 22.03.2014 said to have been issued to the advocate for the petitioner who appeared in the suit stating that the suit was posted on 26.03.2014 for hearing the aforesaid application filed by the plaintiff. The learned counsel for the respondent submits that neither the petitioner nor his advocate appeared on that day and therefore the trial Court was left with no other alternative except to consider the application on merits and allow it and that there is no merit in these writ petitions.
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5. On perusal of the impugned order it is noted that the said order has been passed after the suit was decreed by the trial Court, which decree has been affirmed by this Court. The plaintiff in the suit is seeking amendment of the plaint schedule as well as the judgment and decree passed by the trial Court. Although, it may appear that the petitioner herein was aware of the fact that an application under Section 152 read with Section 151 of the CPC was filed and was to be considered by the trial Court, the facts remains that, no objection to the said application was filed on behalf of the petitioner herein. Also the petitioner was not heard before passing of the impugned order. In the circumstances, I find that the petitioner herein has not been granted an opportunity to either object to the said application or to make submissions on the same. The trial Court has also not had the benefit of considering the stand of the petitioner herein on the said 6 application. On that short ground alone the impugned order is quashed as being in violation of the principles of natural justice.
6. Petitioner's counsel submits that the petitioner would file objection to the said application on or before 13.02.2017. The parties to appear before the trial Court on 13.02.2017. The trial Court to consider the application filed by the respondent-plaintiff (I.A. No. 5) afresh and pass orders in accordance with law.
7. Writ petitions are disposed of in the aforesaid terms.
8. In view of the disposal of the writ petitions, the stay granted by this Court stands to vacated. I.A. No. 1/17 accordingly stands disposed of.
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9. The trial Court is directed to dispose of the application expeditiously and within a period of six weeks from 13.02.2017.
10. It is needless to observe that both parties would co-operate with the trial Court for speedy disposal of I.A.No. 5.
Sd/-
JUDGE AP/VBS