Dismissed

Sri Ryaz Ahmed v. Smt Ruhy Ifthikar

Karnataka HC4 Aug 2023WP/49739/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed under Article 226 seeking to quash an order deleting specific paragraphs from the plaintiff's affidavit. The Court held that introducing new facts in evidence without prior pleading was impermissible and upheld the trial Court's decision.

What did the court decide?

The writ petition seeking to set aside the impugned order deleting parts of the affidavit was dismissed.

Sri Ryaz Ahmed Vs Smt Ruhy Ifthikar — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:27425 WP No. 49739 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.49739 OF 2018 (GM-CPC)

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BETWEEN:

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SRI RYAZ AHMED AGED ABOUT 68 YEARS, S/O LATE D. JANI SAIT RESIDING AT FLAT NO.203 AL-CAZAR APARTMENTS 11/1, INFANTRY ROAD CROSS BANGALORE-560001.

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…PETITIONER

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(BY SRI. RAMAKRISHNAN S., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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CUTCHI MEMON UNION A SOCIETY REGISTERED UNDER THE REGISTRAR OF JOINT STOCK COMPANIES MYSORE EARLIER HAVING ITS OFFICE AT: NO.62 & 63, FIRST FLOOR, CHICK BAZAAR ROAD, SHIVAJINAGAR BANGALORE-560051 REPRESENTED BY ITS PRESIDENT AND / OR SECRETARY

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SRI FAROOK MAHMOOD

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AGED ABOUT 59 YEARS, S/O SRI MAHMOOD YUNUS PRESIDENT CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042

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NC: 2023:KHC:27425 WP No. 49739 of 2018

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SRI HASHIM MOOSA AGED ABOUT 73 YEARS, S/O LATE MOOSA DAWOOD VICE PRESIDENT CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042

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SRI SHABBIR AHMED AGED ABOUT 67 YEARS, S/O LATE MOHD HUSSAIN SHACOOR HON. SECRETARY CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042.

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SRI MAHMOOD JAFFER (DECEASED HENCE DELETED FROM THE SUIT)

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SRI ASIM OOMER AGED ABOUT 53 YARS, S/O LATE H M OOMER SAIT ASSISTANT SECRETARY CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042

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SRI MASOOD KAREEM AGED ABOUT 65 YEARS, S/O LATE ABDUL KAREEM SAIT AUDITOR CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042.

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SRI SALEEM SALEH MOHAMMED (DECEASED MEMO REPORTING DEATH FILED IN LOWER COURT)

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NC: 2023:KHC:27425 WP No. 49739 of 2018

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SRI IYAM ADAM AGED ABOUT 59 YEARS, S/O LATE ADAM AHMED MEMBER-MANAGING COMMITTEE CUTCHI MEMOM UNION NO.276,K KAMARAJ ROAD, BANGALORE-560042.

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(Respondent Nos.1 to 9 deleted as per order dated:6.6.19)

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SMT RUHY IFTHIKAR AGED MAJOR D/O SRI REHMATULLAH @ ABDUL AZIA GUBITRA W/O SRI ITHIKAR SALEEM R/A NO.9/1 AASRA BENSON CROSS ROAD BENSON TOWN BANGALORE-560046

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…RESPONDENT

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(BY SMT. BHARATHI PATIL, ADVOCATE FOR R10, RESPONDENT NOS.1 TO 9 ARE DELETED VIDE ORDER DATED:6.6.19)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD:20.10.2018 IN O.S. NO.8763/2012 PENDING ON THE FILE OF XLI ADDITIONAL CITY CIVIL JUDGE, BENGALURU [ANNEXURE-A] WHEREUNDER THE COURT BELOW PARTLY ALLOWED THE APPLICATION FILED BY THE R-10 UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE SEEKING EXPUNGING OF PARA 25 TO 36 OF THE AFFIDAVIT EVIDENCE OF PW-1 AND EXPUNGING OF EXHIBIT P23 TO P31.

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

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NC: 2023:KHC:27425 WP No. 49739 of 2018

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ORDER

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This writ petition is filed under Article 227 of the Constitution of India seeking to quash the impugned order dated 20.10.2018 passed in O.S.No.8763/2012 by the XLI Additional City Civil Judge, Bangalore, (for short, 'the trial Court'), wherein the application of respondent/defendant No.10 filed under Section 151 of CPC seeking expunging/deleting of paragraph Nos.25 to 36 of the affidavit dated 29.07.2017 of PW-1 and also to expunge the documents marked as Exs.P-23 to P-31 is allowed.

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2. The parties are referred to as per their ranking before the trial Court. The petitioner is plaintiff and respondent in defendant No.10 before the trial Court.

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3. The brief facts giving rise to filing of this petition are that the petitioner has filed O.S.No.8763/2012 against the defendants including defendant No.10, who is respondent No.10 in the present petition, seeking prayer to declare that the resolution of the Managing Committee of defendant No.1 Society dated 02.09.2012 in admitting

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5 - NC: 2023:KHC:27425 WP No. 49739 of 2018

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the defendant No.10 as a Member of the Ladies Wing of the defendant No.1 Society is without jurisdiction, illegal and other reliefs.

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4. The defendant No.10 in the said suit has filed an application under Section 151 of CPC seeking to expunge/delete the contents of paragraph Nos.25 to 36 of the affidavit of PW-1 dated 29.07.2017 filed by the petitioner in lieu of his examination in chief and also sought to expunge the documents marked as Exs.P-23 to P-31. It is the specific case of defendant No.10 that the plaintiff has filed an affidavit in support of his case on 29.07.2017 in lieu examination-in-chief, wherein the affidavit contains the reiteration of the averments made in

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the plaint. However, in paragraph Nos.25 to 36 of the affidavit, the plaintiff has narrated new set of facts, which are not found in the plaint. It is also averred that the plaintiff has marked the documents Exs.P-23 to P-31, which are produced along with the said affidavit. It is further averred that the plaintiff cannot be permitted to go

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beyond his pleadings and bring new set of facts in his evidence, which is contrary to the settled principles of law.

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5. The plaintiff has filed statement of objections to the said application by contending that the averments contained in the affidavit evidence of PW-1 at paragraph Nos.25 to 36 are not new set of facts but they are consolidation of facts referred in previous paragraphs of the plaint. It is submitted that the paragraphs in question are correlated to other paragraphs of the plaint, hence they are necessary to establish his case. Hence, he sought to dismiss the application.

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6. The trial Court vide order dated 20.10.2018 has partly allowed the application filed by defendant No.10 by deleting paragraph Nos.25 to 36 of the affidavit evidence of PW-1 dated 29.07.2017. Being aggrieved by the same, the plaintiff has filed the present petition.

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7. Sri.Ramakrishnan S., Learned counsel for the petitioner-plaintiff submits that the trial Court has

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committed an error in allowing the application and expunging the paragraph Nos.25 to 36 of the affidavit evidence of PW-1. The trial Court ought to have rejected the application filed by defendant No.10 and it ought to have considered the case of the plaintiff on its merits. It is submitted that the plaintiff has not brought any new facts as alleged in the application, it was the consolidation of preceding paragraphs of the plaint, therefore, the trial Court has committed grave error in allowing the application and deleting paragraph Nos.25 to 36 from the affidavit evidence of PW-1. Hence, he seeks to allow the writ petition by setting aside the impugned order.

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8. Per contra, Smt.Bharathi Patil, learned counsel for the respondent-defendant No.10 supports the impugned order passed by the trial Court and submits that the paragraphs Nos.25 to 36 of the affidavit evidence of PW-1 are nothing but bringing new set of facts in the evidence before the trial Court without there being any pleading, such attempt of the plaintiff is contrary to the

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settled principles of law. Hence, the trial Court has rightly allowed the application filed by defendant No.10. It is submitted that it is always open for the plaintiff to amend his plaint, if he intend to amend his pleading and without doing so he has tried to bring new set of facts in the affidavit of PW-1, which is impermissible under law. Hence, she seeks to dismiss the present petition.

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9. I have heard learned counsel for the petitionerplaintiff, learned counsel for respondent-defendant No.10 and perused the trial Court records.

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10. It is not in dispute that the petitioner-plaintiff has filed the suit praying to declare that the resolution of the Managing Committee of defendant No.1 Society dated 02.09.2012 in admitting the defendant No.10 as a Member of the Ladies Wing of the defendant No.1 Society is without jurisdiction, illegal and other reliefs. When the said suit is pending and set-down for evidence of plaintiff, the plaintiff has filed an affidavit dated 29.07.2017 in lieu of his examination-in-chief. On bare perusal of the

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contents of the paragraphs at 25 to 36 of the affidavit, it is evident that the facts narrated at paragraph Nos.25 to 36 of the affidavit are new set of facts, which were not found in the plaint. The contention of the petitioner-plaintiff that those are consolidation of facts of his case, cannot be accepted for the simple reason that on comparison of plaint averments with paragraph Nos.25 to 36 of the affidavit of plaintiff (PW-1), it is clear that they are not the consolidation of facts but introduction of new facts by the plaintiff in his affidavit. The attempt of the plaintiff to bring the new facts in his evidence without there being any pleading is impermissible and against the settled principles of law.

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11. The trial Court, while considering the application filed by the respondent-defendant No.10, has recorded a categorical finding that it has compared the averments of plaint and the averments of affidavit evidence and found that the paragraph Nos.2 to 24 of the affidavit are reproduction of plaint averments, however,

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NC: 2023:KHC:27425 WP No. 49739 of 2018

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10 -

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paragraph Nos.25 to 36 are new set of facts. The said finding is based on material on record and it does not call

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for any interference in the present appeal.

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12. For the aforementioned reasons, there is no

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merit in the petition. Accordingly, the same is hereby

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dismissed .

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Sd/JUDGE

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BSR List No.: 1 Sl No.: 38

Sri Ryaz Ahmed v. Smt Ruhy Ifthikar

Case brief

What is this about?

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Sri Ryaz Ahmed v. Smt Ruhy Ifthikar

Case brief

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