Karnataka High Court
The Mysore Electro Chemicals Works Ltd vs The Commissioner on 4 November, 2024
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NC: 2024:KHC:44437
WP No. 29278 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 29278 OF 2024 (GM-CPC)
BETWEEN:
THE MYSORE ELECTRO CHEMICALS WORKS LTD.,
EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD.,
MEC FACTORY ROAD,
YESHWANTHPURA, BANGALORE
REPRESENTED BY ITS GPA HOLDER
SRI. G. GAJARAJ
S/O D. GOPAL,
AGED ABOUT 64 YEARS,
NO.1043/3, 6TH CROSS,
SRIRAMAPURAM,
BANGALORE-560021.
...PETITIONER
(BY SRI. UMASHANKAR, ADVOCATE FOR
SRI. NARASIMHA MURTHY G.V., ADVOCATE)
AND:
1. THE COMMISSIONER
Digitally signed
BRUHATH BANGALORE MAHANAGARA PALIKE,
by
MARKONAHALLI
DASARAHALLI DIVISION (NEAR MEI COLONY)
RAMU PRIYA BAGALAGUNTE,
Location: HIGH BANGALORE-560057.
COURT OF
KARNATAKA
2. THE ASSISTANT EXECUTIVE ENGINEER
PEENYA INDUSTRIAL SUB-DIVISION,
DASARAHALLI ZONE, WARD NO.41,
BANGALORE-560058.
...RESPONDENTS
(NOTICE SERVED ON BBMP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 19.10.2024 ON IA NO.01/2024 UNDER ORDER 3 RULE 1 OF
CPC IN OS NO.4317/2010 PENDING ON FILE OF THE HON'BLE X
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NC: 2024:KHC:44437
WP No. 29278 of 2024
ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-41)
AT (ANNEXURE-E) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
A general power of attorney holder of the plaintiff in O.S.No.4317/2010 pending trial before the XL Additional City Civil and Sessions Judge, Bengaluru City (henceforth referred to as 'Trial Court') has filed this petition challenging an order dated 19.10.2024 by which, I.A.No.1/2024 filed by the Secretary of plaintiff under Order III Rule 1 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') was allowed and I.A.No.2/2024 filed by the general power of attorney holder of the plaintiff under Order VI Rule 17 read with Section 151 of CPC, was rejected.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the GPA holder of the plaintiff, while the respondents were the defendants before the Trial Court.
3. The suit in O.S.No.4317/2010 was filed for perpetual injunction against the defendants. The suit was -3- NC: 2024:KHC:44437 WP No. 29278 of 2024 contested by the defendants. Since the facts pleaded in the suit are not relevant to decide this writ petition, the same are not mentioned. When the suit was set down for arguments, the Secretary of plaintiff filed an application (I.A.No.1/2024) under Order III Rule 1 of CPC to permit him to continue the suit, while the GPA holder of the plaintiff filed an application (I.A.No.2/2024) under Order VI Rule 17 read with Section 151 of CPC to delete the name of the plaintiff represented by its power of attorney and permit him to continue the suit and to delete line No.1 in paragraph No.2 and line No.9 in paragraph No.3 of the plaint.
4. I.A.No.1/2024 was opposed by the GPA holder of the plaintiff as well as the defendants and I.A.No.2/2024 was opposed by the defendants.
5. The Trial Court in terms of the impugned order allowed the application (I.A.No.1/2024) filed by the Secretary of plaintiff and rejected the application (I.A.No.2/2024) filed by the GPA holder of the plaintiff on the ground that the suit is filed in the year 2010 by a Cooperative Housing Society represented by its GPA holder. It held that the evidence of the -4- NC: 2024:KHC:44437 WP No. 29278 of 2024 parties was concluded and when the case was set down for arguments, the GPA holder of the plaintiff had come up with an application to amend the plaint and to delete the line No.1 in paragraph No.2 and line No.9 in paragraph No.3 of the plaint. It held that the Secretary of the plaintiff-Society had also filed I.A.No.1/2024 seeking permission to prosecute the suit on the ground that alleged power of attorney executed in favour of Mr. G. Gajaraj was revoked and that the Society should represent in the suit through its Secretary. The Trial Court held that the cause-title clearly revealed that the suit was filed by the Society through power of attorney, who now claims to be the owner of the suit property. Therefore, it held that the application (I.A.No.2/2024) was not bonafide and as such, the application was not maintainable.
6. Being aggrieved by the said order, GPA holder of the plaintiff is before this Court in this writ petition.
7. The learned counsel for GPA holder of the plaintiff contended that the Society had executed an unregistered agreement, power of attorney and an affidavit evidencing the fact that it already sold the property to Mr. G. Gajaraj. He -5- NC: 2024:KHC:44437 WP No. 29278 of 2024 contends that Mr. G. Gajaraj was in fact the owner of the suit property and that by mistake, he had filed a suit as representing the Society. He therefore, contends that the purchaser "Mr. G. Gajaraj" be permitted to be substituted in the plaintiff - Society.
8. I have considered the submissions of the learned counsel for GPA holder of the plaintiff.
9. The suit is filed in the year 2010 by the Society represented by its GPA holder. He had pursued the suit as power of attorney of the plaintiff. Long after the trial in the suit had concluded, the GPA holder of the plaintiff claimed that the plaintiff-Society had conveyed the suit property in terms of an agreement of sale and a power of attorney and that he is the owner of the suit property in possession. He therefore, wanted the name of the plaintiff-Society to be replaced by his name. This claim of the power of attorney, that too at the fag end of the suit was improbable and indigestible in view of the judgment of the Hon'ble Supreme Court of India in Suraj Lamp and Industries Pvt. Ltd., vs. State of Haryana and another [2012 (1) SCC 656]. This was definitely -6- NC: 2024:KHC:44437 WP No. 29278 of 2024 impermissible as that would change the nature of the suit as well as cause of action. Besides this, the Secretary of the plaintiff-Society himself had filed an application seeking permission of the Court to pursue the suit, which was rightly allowed by the Trial Court. Therefore, the prayer of the suit cannot be changed at the fag end of the proceedings. The Trial Court has rightly considered the same and has rightly rejected the application filed by GPA holder of the plaintiff. In that view of the matter, there is no error committed by the Trial Court in allowing I.A.No.1/2024 and rejecting I.A.No.2/2024 warranting interference by this Court.
10. Hence, this writ petition lacks merit and is dismissed.
11. It is however, open for the GPA holder of the plaintiff to file a separate suit, if it is permitted in law.
Sd/-
(R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 42