Karnataka High Court

Mrs. Usha Sunil vs Mr. L Govindaraju on 21 March, 2022

Bench: E.S.Indiresh

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF MARCH, 2022

                            BEFORE

            THE HON'BLE MR. JUSTICE E.S. INDIRESH

         WRIT PETITION NO.3034 of 2021 (GM-CPC)
                         c/w
            WRIT PETITION NO.2527 OF 2021

WRIT PETITION NO.3034 OF 2021

BETWEEN:

       1. MRS. MITALI MADHUSMITA
          W/O V ANANDARAJAN
          AGED ABOUT 59 YEARS
          R/AT B-5, TOWER-4
          NEW MOTI BAGH
          SHANTI PATH
          NEW DELHI-110023.

       2. MR. SXJ VASAN
          AGED ABOUT 72 YEARS
          S/O S XAVIER, R/AT NO.11
          AYYAVU NAIDU STREET
          AYYAVU NAIDU COLONY
          AMINJIKARAI
          CHENNAI-600 029.
                                              ...PETITIONERS
(BY SRI SHRIKARA P K, ADVOCATE)

AND:

       1. MR.L GOVINDARAJU
          S/O LAKSHMAN GOWDA
          AGED ABOUT 47 YEARS
          R/AT NO.10, AMBALIPURA VILLAGE
          SARJAPURA ROAD
                         2




  BENGALURU-560 034.

  LATE SHAMANNA REDDY
  S/O LATE PAPAIAH

  LATE ANANDA
  S/O LATE SHAMANNA REDDY

  BOTH 2 AND 3 REPRESENTED
  BY THEIR LEGAL HEIR
  SRI DAYANANDA

2. MR. DAYANANDA
   S/O LATE SHAMANNA REDDY
   AGED ABOUT 53 YEARS
   R/AT BELLANDUR VILLAGE
   VARTHUR HOBLI
   BENGALURU-560 034.

3. MR. N VIJAY KUMAR
   S/O D R NEELAPPA REDDY
   AGED ABOUT 60 YEARS
   R/AT 314/2, 7TH CROSS
   DOMLUR LAYOUT
   BENGALURU-560 071.

4. MR. SREEHARI KUMAR
   S/O B VENKATASUBBAIAH
   AGED ABOUT 60 YEARS
   R/AT NO.33/2, F2
   VIJAY ENCLAVE, 12TH CROSS
   8TH MAIN, MALLESWARAM
   BENGALURU-560 003.

5. MRS. USHA SUNIL
   AGED ABOUT 52 YEARS
   W/O MR. SUNIL SURENDRAN
   R/AT Q03,
   DIAMOND DISTRICT APARTMENTS,
   HAL AIRPORT ROAD
   BENGALURU-560 008.

6. E LAKSHMI V RAO
                                 3




        SINCE DEAD REPRESENTED BY HER LEGAL HEIR
        MR. RAVEENDRA E
        AGED ABOUT 62 YEARS
        R/AT NO.FLAT NO.11
        'BRINDAVAN' PLOT NO.9
        7TH CROSS, ASHOK NAGAR
        BSK-1ST STAGE
        BENGALURU-560 050.

     7. MRS. JAYALAKSHMI
        AGED ABOUT 72 YEARS
        W/O LATE N RADHA KRISHNAIAH
        R/AT NO.188/2, 4TH MAIN ROAD
        CHAMARAJAPET
        BENGALURU-560 018.
        REPRESENTED BY HER SPA HOLDER
        MR. ADITHYA NARAYAN

     8. MRS. BEELA JOSEPH
        W/O LATE ROY JOSEPH
        AGED ABOUT 62 YEARS
        RESIDING AT NO.24,
        CORNWEL CLASSIC
        CORNWEL CROSS ROAD
        LANGFORD GARDEN
        RICHMOND TOWN
        BENGALURU-560 024.
                                              ....RESPONDENTS
(BY SRI MANIAN K B S, ADVOCATE FOR R1;
NOTICE TO R3 TO 6 SERVED BUT UNREPRESENTED;
NOTICE TO R2, 7 AND 8 IS DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR SUCH OTHER WRIT OR ORDER OR DIRECTION OF
THE LIKE NATURE, QUASHING THE ORDER DATED 01ST FEBRUARY,
2021 PASSED BY THE LXIII ADDITIONAL CITY CIVIL JUDGE,
BENGALURU, IN OS. NO.10173 OF 2006 CLUBBED WITH OS NO.6568
OF 2006 ANNEXURE-A. AND ETC.,



WRIT PETITION NO.2527 OF 2021
                               4




BETWEEN:

       1 MRS. USHA SUNIL
         AGED ABOUT 52 YEARS
         W/O SRI SUNIL SURENDRAN
         R/AT Q03, DIAMOND DISTRICT
         APARTMENTS, HAL AIRPORT ROAD
         BENGALURU-560 008.

       2. E LAKSHMI V RAO
          SINCE DEAD REPRESENTED BY HER LEGAL HEIR
          MR. RAVEENDRA E
          AGED ABOUT 62 YEARS
          R/AT NO.FLAT NO.11
          'BRINDAVAN' PLOT NO.9
          7TH CROSS, ASHOK NAGAR
          BSK-1ST STAGE
          BENGALURU-560 050.

       3. MRS. JAYALAKSHMI
          AGED ABOUT 72 YEARS
          W/O LATE N RADHA KRISHNAIAH
          R/AT NO.188/2, 4TH MAIN ROAD
          CHAMARAJAPET
          BENGALURU-560 018.
          REPRESENTED BY HER SPA HOLDER
          MR. ADITHYA NARAYAN

       4. MRS. BEELA JOSEPH
          W/O LATE ROY JOSEPH
          AGED ABOUT 62 YEARS
          RESIDING AT NO.24,
          CORNWELL CLASSIC
          CORNWELL CROSS ROAD
          LANGFORD GARDEN
          RICHMOND TOWN
          BENGALURU-560 024.
                                               ...PETITIONERS
(BY SRI GANGAPATHI HEGDE, ADVOCATE)


AND:
                          5




1. MR.L GOVINDARAJU
   S/O LAKSHMAN GOWDA
   AGED ABOUT 47 YEARS
   R/AT NO.10,
   AMBALIPURA VILLAGE
   SARJAPURA ROAD
   BENGALURU-560 034.

2. LATE SHAMANNA REDDY
   S/O LATE PAPAIAH

3. LATE ANANDA
   S/O LATE SHAMANNA REDDY

  BOTH 2 AND 3 REPRESENTED BY THEIR
  LEGAL HEIR SRI DAYANANDA

4. MR. DAYANANDA
   S/O LATE SHAMANNA REDDY
   AGED ABOUT 53 YEARS
   R/AT BELLANDUR VILLAGE
   VARTHUR HOBLI
   BENGALURU-560 034.

5. MR. N VIJAYA KUMAR
   S/O D R NEELAPPA REDDY
   AGED ABOUT 60 YEARS
   R/AT 314/2, 7TH CROSS
   DOMLUR LAYOUT
   BENGALURU-560 071.

6. MR. SREEHARI KUMAR
   S/O B VENKATASUBBAIAH
   AGED ABOUT 60 YEARS
   R/AT NO.33/2, F-2, VIJAY
   ENCLAVE, 12TH CROSS,
   8TH MAIN
   MALLESWARAM
   BENGALURU-560 003.

7. MRS. MITALI MADHUSMITA
   W/O V ANANDARAJAN
                                 6




        AGED ABOUT 59 YEARS
        R/AT B-5, TOWER-4
        NEW MOTI BAGH
        SHANTI PATH
        NEW DELHI-110023.

     8. MR. SXJ VASAN
        AGED ABOUT 72 YEARS
        S/O S XAVIER, R/AT NO.11
        AYYAVU NAIDU STREET
        AYYAVU NAIDU COLONY
        AMINJIKARAI
        CHENNAI-600 029.
                                                ....RESPONDENTS
(BY SRI MANIAN K B S , ADVOCATE FOR R1;
NOTICE TO R2 TO 8 ARE DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI
OR SUCH OTHER WRIT OR OREDER OR DIRECTION OF THE LIKE
NATURE, QUASHING THE ORDER DATED 01ST FEBRUARY, 2021
PASSED BY THE LXIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU IN
OS.NO.10173 OF 2006 CLUBBED WITH OS.NO.6568 OF 2006
ANNEXURE-A AND ETC.,

     IN THESE WRIT PETITIONS ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

In these writ petitions, petitioners are calling in question

the legality of the order dated 01st February, 2021 passed in OS

No.10173 of 2006 clubbed with OS No.6568 of 2006 on the file

of LXIII Additional City Civil Court, Bengaluru, dismissing the

memo filed by the defendants.

2. Respondent No.1 is the plaintiff and petitioners

herein are the defendants 4 and 7 in OS No.6568 of 2006 filed

by respondent No.1 seeking decree of permanent injunction

restraining the defendants from interfering with the suit schedule

property. Defendants 2, 3, 5 to 7 entered appearance and filed

written statement. Respondent No.1 herein has also filed a suit

in OS No.10173 of 2006 seeking relief of declaration claiming

that he is the absolute owner in possession of the suit schedule

property as per registered sale deed dated 17th March, 2006 with

consequential relief of injunction. Defendants 5 to 11 entered

appearance and filed written statement. Defendant No.6, 7(a),

8 and 9 have filed a memo dated 19th December, 2020 stating

that the defendant No.5 has signed the written statement on

behalf of the defendants 6 to 11 under their instructions and as

such, defendants 6, 7(a), 8 and 9 adopted the written statement

filed by the defendant No.5. The said memo was rejected by the

trial Court on 01st February, 2021 as per Annexure-A and being

aggrieved by the same, petitioners are before this court in these

writ petitions.

3. I have heard Sri Shrikara P K., learned counsel

appearing for the petitioners and Sri Manian K.B.S., advocate for

respondent No.1.

4. Sri Shrikara P K learned counsel appearing for the

petitioner contended that the respondent No.1 has interfered

with the suit schedule property of the defendants/petitioners

herein and tried to demolish the boundary wall and as such, the

petitioners lodged complaint with the Koramangala Police Station

and by the said time, the respondent No.1 has filed OS No.6568

of 2006 seeking relief of injunction against the defendants. He

further contended that the petitioners and other site owners

entered appearance in the said suit, however, petitioners and

respondents 5 to 8 were unable to sign the written statement at

that point of time and as such, orally instructed the respondent

No.4-Sriharikumar to sign the written statement on behalf of

them. He further contended that, during the recording of

evidence, the petitioner and other defendants came to know that

there was no authorisation letter executed at the time of filing of

written statement and as such, by taking abundant caution to

protect their interest, the petitioners and other site owners filed

separate memos stating that respondent No.4-B. Sriharikumar

had signed the written statement on behalf of them as per their

instructions vide memo produced at Annexure-F. The trial Court,

without considering the fact that Order VI Rule 14 of the Code of

Civil Procedure permits for oral authorisation, on an erroneous

assumption of fact, dismissed the memo, which requires

interference in these writ petitions. He further contended that

the memo filed by the petitioners and other site owners is only

to ratify the written statement signed on behalf of respondent

No.4 and therefore, the trial Court ought to have accepted the

said memo and with a hyper technical view, the trial Court

rejected the memo, which requires interference in these writ

petitions.

5. Per contra, Sri K.B.S. Manian, learned counsel

appearing for the respondent No.1/plaintiff submitted that the

written statement filed on behalf of the petitioners herein is

neither signed by them nor verified by the defendants and

therefore, the defence of the defendants 6 to 11 is liable to be

struck off and as such, he sought to justify the impugned order.

6. In the light of the submissions made by the learned

counsel appearing for the parties I have carefully considered the

material on record, which would establish the fact that OS

No.6568 of 2006 and OS No.10173 of 2006 is filed by the

respondent No.1 seeking relief of injunction and relief of

declaration respectively against the defendants. In the said

suit, defendant No.5 filed written statement and the verifying

affidavit at paragraph 2 reads as under:

"That, I swear to this affidavit on behalf of myself

and on behalf of defendant No.6 to 11, upon their

instructions."

7. Thereafter, defendants 6, 7(a), 8 and 9 have filed

memo dated 19th December, 2020 (Annexure-F) stating as

follows:

"However, as abundant caution, the defendants No.6, 7a, 8 and 9 herein, adopt the Written statement filed by the defendant No.5 as their written statement."

8. The said memo was rejected by the trial Court by

impugned order on the ground that the affidavit verifying the

written statement was signed by defendant No.5 only, stating

that he has been instructed to file on behalf of defendants 6 to

11. Order VI Rule 14 of Code of Civil Procedure provides for

pleading to be signed and the said pleading shall be duly

authorised by others. Undisputably, no due authorisation is filed

by defendants 6 to 11. Order VI Rule 15 of Code of Civil

Procedure provides for verification of pleadings. Perusal of writ

papers would indicate that the written statement was filed on

02nd March, 2007 as per Annexure-E and the memo adopting the

written statement was filed on 19th December, 2020 (Annexure-