Karnataka High Court
Sri Modi Ahmed @ Modi Nawab vs Sri Nasir Ahamed on 2 July, 2024
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NC: 2024:KHC:24574
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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WP No. 5674 of 2020
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
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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.
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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
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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
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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
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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
