Karnataka High Court
Sri S A Hafeez vs The Commissioner on 14 June, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE I-BGI-I COURT OF KARNATAKA AT BANGALORE
mmn was THE 14th my OF JUBE 2010
BEFORE
THE HONELE MR.JEJ8I'ICE ARAVIND T{[ '.
wan' PETTPION ma. 126151 * Y 'V'! J T
gs 17736l2___:€_)_,__1_0 iGM~CPC§.,_ *
BETWEEN: 'V %%
1.Sri S. A.Hafeez.
Aged about68y%, V Sjo. Late Syed Ghouse " -
2. Smt. Kf1atoon..B$;¢;--. Aged about 'win. 8. A. J Both Rafa; Nam Viviani Raraci,» Tasyvn, " " L. " V ...PE'l'I'1'I%'ER8 .--j_-.._ r _ : VV ' » .1 .
-- a Palike, % '-Hudaoizvffiircle, . - 56()02'?L
2.2 $r:i A"a:hok Kumar Ghndl-tee, .V 51 years, VS/o. Late Naraaingh Rao.
" ~ Rfa. No. 51, 1" Main, Ma , R.'I'.Nagar Post, Bangalore: --- 560032.
'I'I1'm W.P. 'm filed undesr Articlw 226 and 227 j<$f_ the Constitution ef India prayirxg ts quaah impugned order dt. 11[fJ2/2010 pa3se;d.. » in V "
€).S.No.611[06 by the City Civil Judge Bmlore an I.A.No.3 Ga 4 Vida Anrwrfl. This WP. is -morning on for 1 9' onnnh§° ' The order dt.
11102/2010 wheregndmsykI;A.2§os%,3L%xs;k A4 m by the plairrfi " 5.11 the present 1;, «. . . b
2. have filed a am: in Q.S.Hu.§1 'V031. of the City Civil Court, B@a7._ %%%%1::a..-: rem of perpetual mjumtien aml The 2"" defendant, on seanriacze of n°3:icc and filed written ammmmt. and ' mde m the gthjllt Issues have hem. and at that stage, an appliszsation under VI Rule 1'7 came to be filed an 1511112009, for aum¢:1' dment cf plaint. Prior to that, an application ufier Order I Rule 6 has been filed on 18/12/2006 V whereunder the plaintfi naught for impleading the wii'e._ of 2"' defendant as 3"' defendant. An fixdmmt of the piaint as referred to supra.V_s ,1:£s§. T to be filed on 1511112909 sought for declaration of title a:g1:1_ '_a]s6'--;J§£sessi¢--t1,'..&;$art; ' from asking for amendment of applications came ta be by filing detailed ob_ie_::_:tioIBA.,_ the rival oontamtiaons, mg: 11/ o2;2o1o drummed
3. Counsel, Sri Yeshu.
Miahra, a;ppc.au' L":-;..'%ng' ~f_he~--"">LVpeti1ioners. Pemsed the thereto and the order figsent Writ Petition.
4; n:§k%app1mauon under order I Rule 6 has been "o::1. 18V!"1.2[2O06 mzd it 1;; wumuam by Sri Mishra. that apprmtion was filad tn impxead the wife of t since the 2*"! defendant contended ' wit schedule pmperty has been trans. ferred to I'm wife. A perusal of the written statement would reveal /K that written statement has been filed in the year 200'?
15., on 1/BIC}? and hezme the said plea aocapwd. Even otherwise, considering '% T' V made in the aflidavit supporting plaintfis merely state that t1:1ey_ca__me to kr1ow ' alleged traxmfw through reliabie avidecmv ma beer; _saiicv1v'Ha.V1icged 1:1-azmfier has mm placxs, iiai mmfer and what 'mm mf of the same, the pxaadmgs mm Court was juatifxed er p1s.intifi' to impkaad the wife this court is of the on LA. nejectim the implead the proposed 3"' éeferzdant any whatmever arm! interference at th:: hands of this court ' smug V ' The application for flzadmant has been filcd M 15/ 11109. The said appiimmn has been objected to by the plaintinis. A perusal of the objactiaona would revealflmtvexjrsameplaintifihhavealsefiladasuitin V O.S.4248)'06'a,ga1'nat the very same defendants fr.['2":'«,T t injunctzion and the said suit is "
During' the pendemy afthe ma suit, the % mow filed the 3115.: in quasiion again _ mi' perpetual injuxwtion tcgcflger 'w_:ith ' ixguncfiaon. In this suit, an mada in the. year 2009 flaw grey;-.r for declaration cf title. 1: would_ the judit of " in M73.
Reuageem Bt£:1d3N' reported in AH? 2009 La-Qdampa have defixm the eontnugfé sf: hqi9*w..£i.f; for ammdmmt is to hug eonggdersgd, adjudicawa and decfied. finder:
alysing both the Eng]1a' h and _ some basis: principkaa emerga which taught " 13$ be taknn into conaiderafion while " or - the application for imperative for proper and efibctrivc adjudication of the mac?
[2] Wkthser tm application for amendment is boxmfide or malafide? AV (:3) The: amendment should not causa such prejudice to the othar side which cannot be compensabad in terms of 4' , L- V "
(4) Refusirzg amexadment would in ihct ~ 1'njusti¢e or laad to multiple 1i1:igat;ion;___ ' ' (5) Whether thc: propoacd or f the nature arfl character of Ease? .. V _ (6) As a genaral rulc, the,<:=_ourt ahauld c,'E~*.'-mlixie mndmexats if a freak sliit on the ame:t1d¢'&' claims vmuld be barred date ofapplicafion... ' _ '1'& appellant naught to ' in the pram by an amenamm X %
(a) to %- _ 114-; 3.938, the . '71t§_ arr:-.3 and or in ~c¢c;1.ipat:é:§r1"uf the building which 'Weft. under the s&1e'deed dt.«.V3QI'*3[ 1987, to use as a licensee 31.] 3]'3988;
(by); isam=..__V a mandatory ir1junct:'u::n ta vacate and the plaintifi', vacant and flposawaion cf the building " 3,0daya; and [c)'"' hi "issue a permanent injurnrwn the dafendanm car any of " them; or their agenm reprwezntatives, _ .-'sermnm or any other persons C through, under car an behalf of any of them; fiom interfering with or in any manner disturbing, hindering. obatnmfirzg the pIaintfi"s enjoyment and poaaeaaion of the entire suit scheduka property irmluditxg the building portism ordered to be evicted in terms of prayer
(b) herein above." M
6. Piaintafi is seeking for a declaration of title filing an appfxration in November 2309 an admittedly the claim of that pLaintifi' to A T declaration had got exm1gu1s' ' had :::'f_Tl1I:11taj ' This fact has been taken net: Qfi_'_by aajudicamg the applicafinn rejecting' the same. The 'Ly _ thevv 'AIA-IrV.3Aev§1'I:nB:=:
Supreme Court of the prwcnt case is not inclined to gm: in the Writ Petition.
7. Fgr by the trial Court am herein above, the érder of the Tm; to be confirmed and aceordingly is the same is: mt opposed 'ho the " ddwn by the Honmc T Apex Court as Reva}ee1:u' Builders' case. the . : Fefiuion is rejected.
8. Itflmseen thattI*mpla1'ntifi'h.aa filed a suitin (D.S.Ro.4248[D5 and also the present suit namely dv O.S.N<:>.611/06. The prayer in 0.3.4248} G6 was for relief af permazmnt injunction the prayer "
in <:>.s.611;o5 is for the reliéfef pgrmancnt A T 1 attempting to improve his by step and by virtue of the preoeedirzgs bcfem the In View of the same of the plaintifl which tlrm court, plamags are with com and awe ' passed by the trial emu,'ea,[Lustk%k%§£jk%%:-zggaistjty;- is imposed on the deposited lcnafore the am ¢¢um % it is submitted by Sri Mishra, the that suit has been Elefault and a miscallancoua petition .« is filed for 'restoration cf the suit arfi It is made clear that in the cw.-nt. of t1'1..;3w$uit being restored 133 its file, the p1a1nt' 13" [writ petitioner ahall deposit the cost of Rs.2,5oo;--- beforc the Trial Court which shall be conditinn-precedent for 4'"
proceeding with the suit. Rcgistry is directed mmmunicate the order of this court to the for being kept in the iii»: of 0.530.511;2oo6gm1%Lbé: T noted down in the order sheet which is hcarim the " V' M1ac' .No.319/ 2910 pends.-ug