Karnataka High Court
Sri Modi Ahmed @ Modi Nawab vs Sri Nasir Ahamed on 2 July, 2024
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WP No. 5674 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 5674 OF 2020 (GM-CPC)
BETWEEN:
SRI.MODI AHMED @ MODI NAWAB
S/O LATE SRI MODI ABDULLA
AGED ABOUT 59 YEARS,
RESIDING AT NO.24/8,
BORE BANK ROAD,
EMERALD EXHOTIC APARTMENTS,
BENSON TOWN,
BANGALORE-560 051
...PETITIONER
(BY SRI.SYED KHADER NAWAZ, ADVOCATE)
AND:
1. SRI.NASIR AHAMED
S/O LATE SRI MOHAMMED ABDUL KAREEM
AGED ABOUT 53 YEARS,
2. SHAKIR AHAMED
Digitally S/O LATE SRI MOHAMMED ABDUL KAREEM
signed by AGED ABOUT 53 YEARS,
SUVARNA T
Location: 3. ZAHIR AHAMED
HIGH S/O LATE SRI MOHAMMED ABDUL KAREEM
COURT OF AGED ABOUT 53 YEARS,
KARNATAKA
ALL ARE RESIDING AT NO.8,
BENSON ROAD, BENSON TOWN,
BANGALORE-560 046.
4. SMT.ANEESA
D/O LATE SRI MODI ABDULLA,
W/O SRI. ABDUL RAWOOF,
AGED ABOUT 64 YEARS,
5. SMT.ASMA HAYATH
D/O LATE SRI MODI ABDULLA,
AGED ABOUT 61 YEARS,
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WP No. 5674 of 2020
6. SMT.SHAMEEN YOUSUFF
D/O LATE SRI MODI ABDULLA,
W/O SRI. IYAZ YOUSIF,
AGED ABOUT 56 YEARS,
RESPONDENT NOS.4 TO 6 ARE
RESIDING AT NO.24/8,
BORE BANK ROAD,
EMERALD EXHOTIC APARTMENTS,
BENSON TOWN,
BANGALORE-560 051.
7. SRI.HASSAN MODI
S/O LATE SRI MODI ABDUL KHUDDUS
AGED ABOUT 67 YEARS,
RESIDING AT NO.116, RAIYAAN ARCADE,
HBR LAYOUT, 1ST STAGE, 1ST BLOCK,
BANGALORE-560 043
8. SRI.M.A.MODI
S/O LATE SRI MODI ABDUL KHUDDUS
AGED ABOUT 69 YEARS,
RESIDING AT NO.116,
RAIYAAN ARCADE,
HBR ALYOUT, 1ST STAGE, 1ST BLOCK,
BANGALORE-560 043
9. SRI.SHIREEN SHERIFF
D/O LATE SRI MODI ABDUL KHUDDUS
AGED ABOUT 69 YEARS,
RESIDING AT NO.116,
RAIYAAN ARCADE,
HBR ALYOUT, 1ST STAGE, 1ST BLOCK,
BANGALORE-560 043
10. SRI.MODI ANWARULLA
S/O LATE MODI ZIAULLA
AGED ABOUT 42 YEARS,
RESIDING AT NO.62,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560 046.
11. SRI.JUNED RAFIUDDIN
S/O LATE SRI.MALLIKA RAFIUDDIN
AGED ABOUT 50 YEARS,
RESIDING AT NO. G-3,
MANIPAL VISTAS,
-3-
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WP No. 5674 of 2020
NO.1, CANNAUGHT ROAD,
OFF QUEENS ROAD,
BANGALORE-560 052
12. SMT.MUBIN SHERIFF
D/O LATE SRI. MODI KARIMULLA
AGED ABOUT 45 YEARS,
NOS. 6 AND 7, RESIDING AT NO.65/3,
MILLER ROAD, BENSON TOWN,
BANGALORE-560 046
13. SRI.ASIF MODI
S/O LATE SRI. MODI KARIMULLA
AGED ABOUT 42 YEARS,
NOS. 6 AND 7
RESIDING AT NO.65/3,
MILLER ROAD, BENSON TOWN,
BANGALORE-560 046
14. SRI.SHABBIR H.MODI
S/O LATE SRI. MODI ABDUL SUBHAN
AGED ABOUT 45 YEARS,
RESIDING AT NO.76, DICOSTA LAYOUT,
WHEELER ROAD EXTENSION,
BANGALORE-560 046
15. SRI.KHALID MODI
S/O LATE SRI MODI ABDUL SATTAR
AGED ABOUT 38 YEARS
RESIDING AT NO.32/7,
COLES ROAD, FRAZER TOWN,
BANGALORE-560 005.
...RESPONDENTS
(BY SRI.BASAVARAJ V.SABARAD, ADVOCATE
SRI.H.L.PRADEEP KUMAR, ADVOCATE FOR R1 TO R3
R4 AND R5 ARE SERVED AND UNREPRESENTED
V/O/D 18.11.2022 NOTICE TO R6 DISPENSED WITH
SMT.SUMITHRA, ADVOCATE FOR R7 TO R15)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN M.A.NO.15093/2019 ON THE FILE OF V ADDL.
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT AT
DEVANAHALLI.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Aggrieved by the order passed in M.A.No.15093/2019 dated 06.02.2020 passed by the Vth Additional District and Sessions Judge, Bengaluru Rural District, Devanahalli, whereby the Appellate Court has set aside the order passed in O.S.No.30/2018 dated 31.10.2019 passed by the Additional Civil Judge, Devanahalli, the petitioner/defendant No.4 is before this Court.
2. The respondent/plaintiff had filed a suit for permanent injunction. It is the case of the petitioner/defendant No.4 that he appeared before the Court below on 25.08.2018. Thereafter, as the written statement was not filed by defendant No.4, on 07.11.2018, the written statement was treated as nil and the Court had proceeded with the trial. Then, an application is filed on 29.03.2019 to permit defendant No.4 to file the written statement by recalling the earlier order. That came to be dismissed on 15.04.2019 holding that once the case is posted for judgment, at that point of time, allowing any of the applications would not arise and rejected the application. Then another application is filed on 27.06.2019 seeking review of the order dated 15.04.2019 on the ground that the earlier -5- NC: 2024:KHC:24574 WP No. 5674 of 2020 application was dismissed as the matter is posted for judgment and as a new presiding officer has come and the matter is reopened, as such, the order may be recalled. Then, the Court below by order dated 31.10.2019 had recalled the said order and permitted the petitioner to file the written statement. Aggrieved thereby, the plaintiff has carried this matter in M.A.No.15039/2019 on the file of Vth Additional District and Sessions Judge, Bangalore Rural at Devanahalli.
3. By way of the order impugned, the appellate Court had set aside the order passed by the Trial Court, wherein the Appellate Court had observed that the Court had failed to consider the scope of Order 47 Rule 1 of CPC and the ground on which the order of the learned Judge dated 15.04.2019 was reviewed by this order is not within the scope of Order 47 Rule 1 of CPC. The Trial Judge has not considered the point of limitation while entertaining the review application. The learned Judge has failed to address the issue of limitation under Article 124 of the Limitation Act, 1963. Accordingly, allowed M.A.No.15093/2019. Aggrieved by the said order, petitioner/defendant No.4 is before this Court. -6-
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4. Learned counsel appearing for the petitioner/defendant No.4 submits that he could not file the written statement within a period of 30 days as defendant No.4 was not feeling well and when the order was passed on 15.04.2019, in fact he has come to the Court and sought for adjournment as the counsel was out of town. The Court below without considering any of this, had dismissed the application. It is submitted that for giving a fair opportunity to defendant No.4, the Court below ought not to have dismissed the same on the ground that the matter is posted for judgment. He submits that when a review petition is filed seeking review of the earlier order, when the Trial Court had rightly passed an order, the Appellate Court without any basis had interfered with the same and allowed M.A.No15093/2019 more on technicalities.
5. Learned Senior counsel appearing for the respondent/plaintiff submits that with respect to the very same property, O.S.No.307/2017 is filed by the petitioner/defendant No.4 seeking declaration and injunction which came to be dismissed on 16.09.2019. Against that, he has filed M.A.No.15093/2019 which came to be dismissed on 13.12.2017. In response to that, learned counsel for the -7- NC: 2024:KHC:24574 WP No. 5674 of 2020 petitioner/defendant No.4 submits that they have filed miscellaneous petition and the same is pending consideration before the Court below. It is submitted that defendant No.4 had kept quiet conveniently. When the Court below had treated the written statement as nil by order dated 07.11.2018, he came up with an application after four months and when it is dismissed on 15.04.2019, again without pursuing the same, he kept quiet and then after a new presiding officer has taken charge, he filed an application seeking review of the earlier order. Learned Senior Counsel submits that it is beyond the scope of a review and the Appellate Court had rightly allowed M.A.No.15093/2019 as the Trial Judge has gone beyond the scope of the review. It is submitted that the application which is filed by the party who is not diligent in pursuing the matters cannot be entertained and the writ petition is liable to be dismissed.
6. Having heard the learned counsels on either side, perused the entire material on record. When the matter came up on the last occasion, arguments were advanced. Looking at the fact that the suit is of the year 2018 and the application was filed on 29.03.2019, as there was no much delay, this -8- NC: 2024:KHC:24574 WP No. 5674 of 2020 Court initially wanted to allow this writ petition and asked the learned counsel for the petitioner/defendant No.4 to file the order sheets of the Court below before this Court and the proceedings of the Court below are placed before this Court. This Court has thoroughly gone through the said proceedings, wherein it discloses that defendant No.4 had appeared before the Court below on 25.08.2018 and the order treating the evidence as nil was passed on 07.11.2018. This Court has observed that for filing an application and to recall the order, defendant No.4 had taken four months' time and thereafter, the same was dismissed on 15.04.2019. When the order is passed by the Court, he has not chosen to avail appropriate remedy against that order. He waited till the next officer assumes charge and filed the application seeking review of the earlier order on 27.06.2019 and that came to be allowed on 31.10.2019. Looking at the Court proceedings, it appears that there are no bonafides on the part of defendant No.4 in pursuing the matter and filing this kind of applications. When the Court below had dismissed the application on 15.09.2019 and posted the matter for judgment, the only remedy was to come before the Appellate Court and question the said order. If the same presiding officer continued, it has to be assumed that -9- NC: 2024:KHC:24574 WP No. 5674 of 2020 in that event, he had no grievance against that order. The Appellate Court had rightly held that the Trial Judge had gone beyond the scope of review and allowed the application on 31.10.2019. In the considered opinion of this Court, looking at the conduct and the manner in which the matter is pursued, this Court cannot give an opportunity to the defendant and the order passed in M.A.No.15093/2019 is a well considered order and do not require any interference from this Court.
ORDER Accordingly, the writ petition is dismissed. All pending I.As., if any, shall stand closed.
SD/-
JUDGE MEG List No.: 1 Sl No.: 11