Karnataka High Court
Sri Amith R Jain vs Sri Thyagarajan on 27 March, 2023
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WP No. 4633 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION NO. 4633 OF 2023 (GM-CPC)
Between:
1. Sri Amith R.Jain
S/o Sri Rikabchand Jain
Aged 49 years
R/at No.401, Panchsheel Apartments
Third Floor, Third Cross
Gandhinagar, Bengaluru 560009
2. Sri Jinendra Jain
S/o. Sri Jaichand Jain
Aged 60 years
R/at Picasso Fashion
No.197, Third Floor
Chickept, Bengaluru 560053
Digitally signed by 3. Sri Pradeep Kumar Jain
VEERENDRA S/o. Sri Jaswanth Raj
KUMAR K M
Aged 43 years
Location: HIGH
COURT OF No 110, Devatha Market
KARNATAKA Chickpet, Bengaluru-560053
4. Sri Manoj Rathod
S/o. Sri Shivalal Rathod
Aged 49 years
R/at No 5, Ground Floor
S.S.Temple Road Fourth Block,
Kumara Park West,
Bengaluru 560020
5. Smt. Pushpa Bai
W/o. Sri Phoolchand
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WP No. 4633 of 2023
Aged 60 years
C/o. Suresh Textiles
Gandhi Circle, Robertson Pet
KGF - 563122
And now at Bengaluru
...Petitioners
(By Sri H.J.Karigar, Advocate)
And:
1. Sri Thyagarajan
S/o. Sri P.A.Sundararajan
Aged 48 years
R/at No.1/32,
Bazan Koil Street,
Kanguppam Village and Post,
Via Rusha, Katpadi,
Vellore District
2. Sri S.Vasu
S/o. Sri P.Sundaram
Major
R/at No 5, Ayal Naidu Street
Kamatchiyammanpet
Gudiyattam, Vellor District
3. Mr. Ramesh N.,
Aged about 50 years
S/o. Late B.Nagappa
R/at No.19, Gokula Nivas
23rd Cross, G Block
Sahakarnagar, Bengaluru 560092
...Respondents
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to-quashing the impugned order
dated 20/01/2023 passed by the Hon'ble IV Additional Senior
Civil Judge, Bengaluru Rural District, Bengaluru in O.S.No.
1027/2013 as per Annexure-A, by allowing the application filed
under Order XII Rule 6 of Code of Civil Procedure as per
Annexure-J by petitioners in view of the binding decision of the
Hon'ble supreme court as per Annexure-K and K1.
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WP No. 4633 of 2023
This Writ Petition coming on for preliminary hearing,
this day, the court made the following:
ORDER
Heard the learned counsel for the petitioners at the stage of preliminary hearing.
2. The petitioners have assailed the order dated 20.01.2023 passed by the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru in O.S.No.1027/2013, on I.A.No.7, an application filed under Order XII Rule 6 of CPC.
3. The petitioners requested the trial court to pass partial decree based on certain admissions said to have been given by defendant No.1, especially with reference to Ex.P.24. The trial court dismissed the said application opining that if Ex.P.24 is seen in the light of the defence taken in the written statement, it cannot be said that there is an admission by the defendant No.1. -4- WP No. 4633 of 2023
4. Having gone through Ex.P.24 and the written statement, it may be stated that Ex.P.24 cannot be construed as containing a statement amounting to admission. The admission must be clear and unambiguous. It may be found in the pleading or any other document. Therefore I do not find any infirmity in the order of the trial court.
5. At this stage, learned counsel for the petitioners submits that defendant No.1 has already sold away the suit property in favour of a third party and therefore the petitioner does not press the relief of specific performance. The petitioners have also sought alternative relief of refund of earnest money and since according to defendant No.1 he obtained loan from the plaintiffs / petitioners, the trial court could have passed partial decree based on Ex.P.24.
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6. If this is the case of the petitioners, they are given liberty to file a memo before the trial court stating that they do not press the relief of specific performance. The trial court may then pass an appropriate order based on the assertions made by defendant No.1 in the written statement, if at all they amount to admissions.
Writ petition is therefore dismissed.
SD/-
JUDGE KMV List No.: 1 Sl No.: 3