Karnataka High Court
M/S Hercules Sports International vs Smt Amudha on 2 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 02ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.36824/2016 (GM-CPC)
BETWEEN:
1. M/S HERCULES SPORTS INTERNATIONAL,
NO.4, HSR LAYOUT, I SECTOR,
BENGALURU - 560 095.
REP. BY ITS PARTNERS
1(a) SRI. H.V. GAJARAJ,
AGED ABOUT 64 YEARS,
1(b) SMT. VASANTHA GAJARAJ,
AGED ABOUT 54 YEARS,
BOTH RESIDING AT NO.34,
MADANDEEP, BTM I PHASE,
18TH MAIN,
BENGALURU - 560 068. ... PETITIONERS
(BY SRI: DWARAKANATH H.S., ADVOCATE)
AND:
1. SMT. AMUDHA,
AGED ABOUT 47 YEARS,
D/O SRI. A.T. VELU
2. SMT. T. LAKSHMI,
AGED ABOUT 36 YEARS,
D/O SRI. A.T.VELU,
RESPONDENTS 1 AND 2 ARE
RESIDING AT NO.133,
K.H.B.COLONY, KORAMANGALA,
BENGALURU - 560 095. ... RESPONDENTS
(BY SRI: A. RAVISHANKAR, ADVOCATE FOR R-1 & R-2)
*****
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERS PASSED ON I.A.7 FILED UNDER ORDER XXVI RULE 9
R/W SEC. 151 OF CPC DATED 16.06.2016 IN O.S.NO.7642/2014
BY THE CITY CIVIL & SESSIONS JUDGE, BANGALORE AT
ANENX-A AND FOR ALLOWING THE SAID APPLICATION AND
ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP THIS DAY, COURT MADE THE FOLLOWING:
ORDER
This writ petition is listed for preliminary hearing 'B' group, along with I.A.No.1/16 for vacating the interim order granted by this court, which application has been filed by respondent Nos.1 and 2 herein.
2. The petitioner herein is the defendant in O.S.No.7642/2014. That suit has been filed seeking eviction of the defendants from the suit schedule premises. During the pendency of the suit, two applications were filed by the defendant: one, under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), which is I.A.No.7 seeking appointment of a Commissioner to compare the signature of the plaintiff/respondents on Ex.D-1 with the signatures on Exs.P-1 and P-2. The second, which is numbered as -: 3 :- I.A.No.8, was filed under Order XXVI Rule 9 read with Section 151 of the CPC, seeking appointment of a Commissioner to visit the basement and first floor of the suit schedule premises, in order to ascertain as to whether there is facility for drainage of rain water from the basement and also regarding the height of the first floor and nature of staircase to the first floor and basement and as to whether it is locked or not. By the impugned order dated 16/06/2017, both the applications have been rejected. However, there is no challenge to the order passed on I.A.No.8. The challenge in this writ petition is restricted to the order passed on I.A.No.7.
3. Petitioner's counsel contended that the main grievance of the petitioner with regard to the dismissal of the said application (I.A.No.7) is the fact that the said application has been dismissed without any reasons being assigned. He pointed to the impugned order and drew my attention to the fact that the application could not have been dismissed without there being any reason to do so. The entire discussion in the impugned order is on I.A.No.8, while dismissing that application, incidentally I.A.No.7 has also been dismissed. He contended that there is non- -: 4 :- application of mind on I.A.No.7 and therefore, the order of dismissal of I.A.No.7 may be quashed and a direction may be issued to the trial court to reconsider the same.
4. Learned counsel for respondent Nos.1 and 2, however, submitted that though there may not be reasons evident in the impugned order, nevertheless, the dismissal of I.A.No.7 would not call for any interference by this court. He contended that there is no merit in the writ petition as the petitioner herein is sought to be evicted by the respondents and that the suit has been pending since the year 2014 and that the petitioner is only protracting the proceedings.
5. Having heard learned counsel for the parties and on perusal of the material on record, it is noted that by the impugned order dated 16/06/2016, the trial court has taken up for consideration both I.A.No.7 as well as I.A.No.8. While there is no grievance with regard to the dismissal of I.A.No.8, petitioner's grievance is with regard to dismissal of I.A.No.7 without the same being considered and reasons being assigned for its dismissal. A perusal of the impugned order would make the same evident. In the -: 5 :- circumstances, the impugned order passed on I.A.No.7 is quashed. The matter is remanded to the trial court to reconsider I.A.No.7 filed under Order XXVI Rule 9 read with Section 151 of CPC afresh and in accordance with law and after giving an opportunity to both sides to make their submission on the application.
6. At this stage, learned counsel for respondent Nos.1 and 2 submits that the suit is posted to 04/01/2017 and as direction has been issued for reconsidering I.A.No.7, a further direction may be issued to dispose of the same within a time frame.
7. The trial court is directed to reconsider I.A.No.7 in accordance with law and dispose of the same preferably before 20/01/2017 and at any rate on or before 30/01/2017. Writ petition is disposed with the above direction.
8. In view of disposal of the writ petition, I.A.1/16 also stands disposed.
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9. The interim order granted by this court on 04/07/2016 and subsequently, extended on several dates stands vacated.
Sd/-
S* JUDGE