Karnataka High Court
Mr Hafeez vs Mr Ayub on 17 March, 2022
Bench: E.S.Indireshpresided Byesij
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.21450 OF 2021(GM-CPC)
BETWEEN:
MR. HAFEEZ
S/O. LATE HASSAN BAWA
AGED ABOUT 47 YEARS
R/AT ISHAN COTTAGE
BIRLA COMPOUND
MUKKACHERI, ULLAL VILLAGE
P.O. ULLAL - 575 020,
MANGALURU TALUK (DAKSHINA KANNADA)
REP BY HIS G.P.A HOLDER,
SMT KATHEEJA HAMZA ,
D/O LATE HASSAN BAWA,
W/O PULLIA HAMZA MOHAMMED
AGED ABOUT 56 YEARS
R/AT AYISHA HOUSE
DOOR NO 21-5-607/10,
NEAR OLD E.S.I., PINTO GATE,
BOLAR,
MANGALURU - 575001 (DAKSHINA KANNADA)
... PETITIONER
(BY SRI..M. SUDHAKAR PAI., ADVOCATE)
AND:
1. MR. AYUB
AGED ABOUT 60 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
2
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
2. MR. NAWAZ
AGED ABOUT 43 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
3. SMT. REHANA
AGED ABOUT 51 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
4. SMT. FARZANA
AGED ABOUT 42 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
5. SMT. SHAMEENA
AGED ABOUT 41 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
6. SMT. PUTHU
AGED ABOUT 68 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
7. SRI. RIYAZ
AGED ABOUT 40 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
3
MANGALURU - 575 001 (DAKSHINA KANNADA)
8. SMT. RUKSANA
AGED ABOUT 37 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DK)
9. SMT. RUBEENA
AGED ABOUT 36 YEARS
CHILDREN OF LATE P K ABDUL RAHAMAN
R/AT AZIZUDDIN ROAD,
BUNDER,
MANGALURU - 575 001 (DAKSHINA KANNADA)
` ... RESPONDENTS
(BY SRI: CYRIL PRASAD PIAS, ADVOCATE
FOR R1, 2,4,6,8 AND R9,
NOTICE TO R3, 5 AND R7 HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD 25.10.2021 ON I.A.NO.IV IN RA.NO.79/2021
ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM,
MANGALURU, DAKSHINA KANNADA, WHICH ORDER IS
CONTAINED IN THE CERTIFIED COPY OF THE ORDER
SHEET OF RA NO.79/2021 ON THE FILE OF PRL. SENIOR
CIVIL JUDGE AND CJM, MANGALURU, DAKSHINA KANNADA
VIDE ANNEXURE-M TO THE WRIT PETITION.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
4
ORDER
This writ petition is filed by the plaintiff/decree
holder in O.S.No.580/2017.
2. The respondents herein have challenged the
judgment and decree passed in O.S.No.580/2017
before the Principal Senior Civil Judge and CJM,
Mangaluru, Dakshina Kannada, in R.A.No.79/2021.
3. It is forthcoming from the writ papers that
the First Appellate Court stayed the judgment and
decree dated 26.03.2021 passed in O.S.No.580/2017.
However, the said order was passed without
considering Order 41 Rule 1(3) Code of Civil Procedure
(for short hereinafter referred to as 'CPC'). Therefore,
the petitioner herein being aggrieved by the same has
approached this court in W.P.No.14834/2021
(Annexure-J) and this court by order dated 16.8.2021,
at page Nos.3 and 4 held as under:
"The petitioner is now before this Court
because the appellate Court has granted
unconditional stay, and the learned counsel
for the petitioner submits that given the
provisions of the Order XLI Rule 1(3) of CPC,
the petitioner landlord, during the pendency
of the appeal cannot be deprived of mesne
profits. Therefore, the appellate Court could
not have stayed the civil Court's judgment
and decree without necessary conditions.
In the light of the facts and circumstances
of the case, and on consideration of the
grounds urged, this Court is of the
considered view that the petitioner must be
at liberty to make an application before the
appellate Court for modification of the
impugned order imposing terms as may be
suitable. The petition stands disposed of
accordingly with appropriate liberty to the
petitioner subject to all just exceptions in
law."
4. Thereafter, the petitioner herein has made
an application before the First Appellate Court and the
said application - I.A.No.IV was allowed by modifying
the order dated 27.07.2021. Being aggrieved by the
same, plaintiff/respondent before the First Appellate
Court has presented this writ petition.
5. Sri. M.Sudhakar Pai, learned counsel
appearing for the petitioner contended that pursuant to
the order passed by this court in W.P.No.14834/2021
(Annexure-J), First Appellate Court ought to have
considered the said order, however, First Appellate
Court has modified the same directing the contesting
respondents herein to deposit the mesne profits. He
also invited the attention of this court to the memo
filed on behalf of respondent before First Appellate
Court who is the petitioner herein, as per Annexure-E
and accordingly, he contended that impugned order
requires to be set aside for fresh consideration.
6. Learned counsel appearing for the
respondents sought to justify the order passed by the
First Appellate Court and further submitted that First
Appellate Court has modified the impugned order to an
extent of directing the respondents herein for
depositing of Rs.800/- per month for a period of six
months and accordingly, he sought for dismissal of the
writ petition.
7. The undisputed facts are that the petitioner
herein is plaintiff in O.S.No.580/2017 and the suit
came to be decreed on 26.03.2021. Being aggrieved
by the same, the respondents herein have challenged
the same in R.A.No.79/2021 before the First Appellate
Court. At the time of considering the said application,
the First Appellate Court has granted the stay of the
operation of the judgment and decree in
O.S.No.580/2017 without taking into consideration
Order 41 Rule 1(3) of CPC.
8. I have also noticed the order dated
16.08.2021 passed by this court in
W.P.No.14834/2021 which is extracted above, wherein
this court had made it clear that the said application of
staying the operation of judgment and decree dated
26.03.2021 in O.S.No.580/2017 shall be considered in
terms of provisions of Order 41 Rule 1(3) of CPC and in
the light of the grounds urged by the petitioners herein
before the trial court.
9. I have also noticed the memo filed on behalf
of respondent/petitioner herein before the First
Appellate Court as per Annexure-E and as on the date
of filing of the said memo, arrears of mesne profits was
Rs.11,43,885/-.
10. On perusal of the impugned order passed by
the First Appellate Court on I.A.No.IV, there is no
discussion made by the First Appellate Court with
regard to the memo filed by the petitioner herein with
regard to claiming mesne profits, in terms of the memo
produced at Annexure-E.
11. I have also noticed from the impugned
order that the First Appellate Court has not properly
followed the observations made by this court referring
to the scope of Order 41 Rule 1(3) of CPC. In that view
of the matter, the impugned order passed by First
Appellate court on I.A.No.IV dated 25.10.2021 is set
aside and the First Appellate Court is directed to
reconsider I.A.No.IV in the light of memo filed by the
petitioner herein as per Annexure-E so also directions
issued by this court in W.P.No.14834/2021 and also
conditions stipulated in Order 41 Rule 1(3) of CPC.
Accordingly, petition is allowed.
The First Appellate Court is directed to complete
the entire exercise within two months from the date of
receipt of this order.
Sd/-
JUDGE
HJ
