Sri Ayoob vs Sri Hafeez
2022 Latest Caselaw 5360 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF MARCH, 2022

                         BEFORE

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

       WRIT PETITION NO.4053 OF 2022 (GM-CPC)

BETWEEN

SRI AYOOB
AGED ABOUT 60 YEARS
S/O LATE P K ABDUL RAHMAN
R/AT AZIZUDDIN ROAD
BUNDER
MANGALURU-575 001.
                                            ...PETITIONER

(BY SRI S RAJASHEKAR, ADVOCATE)

AND
      1. SRI HAFEEZ
         S/O LATE HASSAN BAWA
         AGED ABOUT 48 YEARS
         R/AT ISHAN COTTAGE
         ULLAL VILLAGE AND POST
         MANGALURU-575 004.

      2. SRI NAWAB
         AGED ABOUT 44 YEARS

      3. SMT. REHANA
         AGED ABOUT 52 YEARS

      4. SMT. FARZANA
         AGED ABOUT 43 YEARS
                            2




     5. SMT. SHAMEENA
        AGED ABOUT 42 YEARS

     6. SMT. PUTHU
        AGED ABOUT 69 YEARS

     7. SRI RIYAZ
        AGED ABOUT 41 YEARS

     8. SMT. RUKSANA
        AGED ABOUT 38 YEARS

     9. SMT. RUBEENA
        AGED ABOUT 37 YEARS

       RESPONDENT NOS. 2 TO 9
       ARE CHILDREN OF LATE P K ABDUL RAHMAN
       ARE RESIDING AT AZIZUDDIN ROAD
       BUNDER, MANGALURU-575 001.

                                        ....RESPONDENTS

(BY SRI M SUDHAKAR PAI, ADVOCATE FOR R1 )

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 25TH JANUARY, 2022 PASSED ON IA.NO.21 FILED UNDER
ORDER VIII RULE 9 READ WITH SECTION 151 OF CODE OF
CIVIL PROCEDURE, IN ORIGINAL SUIT NO.1200 OF 2017 ON
THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC,
MANGALURU, VIDE ANNEXURE-A.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
                                  3




                             ORDER

This Writ Petition is filed by defendant No.1 in OS No.1200

of 2017 on the file of the IV Additional Civil Judge and JMFC,

Mangalore, Dakshina Kannada, challenging the order dated 25th

January, 2022, dismissing the IA.21 filed by the defendants.

2. Relevant facts for adjudication of this Writ Petition are

that, the plaintiff has filed suit for recovery of possession with

consequential relief of mesne profits. Defendants entered

appearance and filed written statement. At the stage of cross-

examination of PW1, defendant No.1 filed application in IA.21

under Order VIII Rule 9 of Code of Civil Procedure seeking leave

of the court to file additional pleadings. The said application was

resisted by the plaintiff. The trial Court, after considering the

material on record, by its order dated 25th January, 2022

dismissed the application and being aggrieved by the same, the

defendant No.1 has preferred this writ petition.

3. I have heard Sri S. Rajashekar, learned counsel

appearing for the petitioner and Sri M. Sudhakar Pai, learned

counsel appearing for the respondent No.1.

4. Sri S. Rajashekar, learned counsel appearing for the

petitioner contended that the finding recorded by the trial Court

that the defendant No.1 ought to have invoked Order VI Rule 17

of Code of Civil Procedure instead of invoking order VIII Rule 9

of Code of Civil Procedure, that too, at the belated stage, is

contrary to factual aspects of the case. He contended that the

stage of the suit was for evidence of plaintiff and therefore, the

subsequent pleadings require to be stated in the additional

statement are very much necessary for adjudication of the suit

and therefore, the trial Court ought to have accepted the

application. He further contended that since there is discrepancy

in the Door Number of the tenanted premises and as such, the

said aspect has to be clarified in the suit, and accordingly, the

trial Court accepted the additional statement filed under Order

VIII Rule 9 of Code of Civil Procedure. In this regard, he placed

reliance on the decision of the Hon'ble Supreme Court in the

case of SANGRAM SINGH v. ELECTION TRIBUNAL, KOTAH AND

ANOTHER reported in AIR 1955 SC 425 and relied upon

paragraph 15 of the judgment.

5. Per contra, Sri Sudhakar Pai, learned counsel appearing

for the respondent No.1/plaintiff, drew the attention of the court

to schedule A to the plaint and submitted that the upper floor of

the building bearing Door No.10-25-1070 belong to the plaintiff

and he further contended that the father of the plaintiff had filed

OS No.377 of 2000 against the father of the defendant seeking

possession of the tenanted premises and the suit came to be

decreed and thereafter, the same was affirmed by the First

Appellate Court and this Court in the Regular Second Appeal,

and therefore, contended that urging the very same ground

through the application filed under Order VIII Rule 9 of Code of

Civil Procedure is impermissible under law. In this regard, he

referred to the decision of Hon'ble Supreme Court in the case of

P.A. JAYALAKSHMI v. H. SARADHA AND OTHERS reported in

(2009)14 SCC 525 and the decision of this Court in the case of

MOHAMMED ALI AND ANOTHER v. KHUTEJAUTAL KUBRA AND

OTHERS reported in ILR 2001 KAR 4580.

6. Having heard the learned Counsel for the parties, I

have carefully examined the prayer in the plaint vis-à-vis the

averments made in the plaint. Undisputably, the suit is filed,

seeking relief of recovery of mesne profits in respect of the A

schedule premises. The grievance of the defendant No.1 is that

the description in the Schedule A property is wrongly mentioned

in the plaint and the said aspect has not been taken into

consideration while filing the written statement. I have also

noticed the issues framed by the trial Court. It is the case of the

defendant No.1 that the entire building consist of two portions.

Lower portion is bearing door No.10-25-1070 and the upper

portion of the building bears the door No.10-25-1071. It is

undisputed fact that the plaintiff has the benefit of decree in

respect of the premises bearing door No.10-25-1070 and at

paragraph 5 of the plaint, the plaintiff admits the discrepancy in

mentioning the schedule in Os No.377 of 2000 and therefore, I

am of the view that as the case is at the stage of evidence of

PW1, the relevant grounds urged by the defendant No.1 in the

IA.21 be ancillary to decide the case effectively between the

parties. Perusal of the application in IA.21 would substantiate

the fact that defendant No.1 has not departure from the

pleadings in the written statement and has incorporated the

subsequent events in furtherance of the filing of the written

statement and therefore, on perusal of the averments made in

the application, I am of the view that no inconsistent pleas are

urged in IA.21 and therefore, the trial Court has committed in

dismissing the application filed by the defendant No.1. I have

also noticed the judgment referred to by the respondent referred

to above and the averments made in the application IA.21 would

supplement the averments made in the written statement as

well as sub-serve the purpose of deciding the lis between the

parties effectively, and therefore, the aforementioned judgment

cited by the respondent No.1 cannot be made applicable to the

facts on hand. At this stage, it is relevant to extract the

judgment of the Hon'ble Apex Court in the case of SANGRAM

SINGH (supra), wherein at paragraphs 16 and 17 of the

judgment, it is observed thus:

"16. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation

should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

7. Therefore, I am of the view that the application in

IA.21 is to be allowed and the impugned order passed by the

trial Court is to be set aside.

8. However, I find force in the submission by the

submittion made by Sri Sudhakar Pai, learned counsel appearing

for the respondent No.1 that IA.21 is filed at the stage of

evidence of PW1 and same may be compensated by imposing

cost of Rs.10,000/- to be payable by defendant No.1 to the

plaintiff, in the ends of justice. Ordered accordingly. Writ is

accordingly disposed of.

Sd/-

JUDGE lnn