Quashed

Mrs. Lakshmi Abhiram v. M/S. Amulya Architects

Karnataka HC12 Apr 2023WP/61204/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the civil court's ex-parte orders allowing applications under Order XXVI Rule 9 and 10A and Order XXXVIII Rule 5 of CPC due to lack of notice and failure to record reasons, respectively, in a dispute over construction works.

What did the court decide?

Quashed the civil court's order allowing I.A.No.2 under Order XXVI Rule 9 and 10A CPC and I.A.No.3 under Order XXXVIII Rule 5 CPC with liberty to parties to proceed accordingly.

Mrs. Lakshmi Abhiram Vs M/S. Amulya Architects — Property and Title | Karnataka HC (2023)

¶1

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 12^TH DAY OF APRIL, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 61204 OF 2016 (GM-CPC)

¶7

C/W

¶8

WRIT PETITION NO. 61203 OF 2016 (GM-CPC)

¶9

IN W.P.No.61204/2016

¶10

BETWEEN:

¶11

MRS. LAKSHMI ABHIRAM W/O J ABHIRAM AGED ABOUT 53 YEARS

¶12

MR J ABHIRAM S/O JAYASURYA AGED ABOUT 55 YEARS

¶13

Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

¶14

MR VINEET ABHIRAM S/O J ABHIRAM AGED ABOUT 30 YEARS

¶15

ALL ARE R/O NO.16, FLAT NO.201 RENAISSANCE SURYA, 5TH MAIN 9TH CROSS, OPPOSITE B P INDIAN HIGH SCHOOL, MALLESHWARAM BENGALURU-560003

¶16

…PETITIONERS

¶17

(BY SRI. AMIT A MANDGI, ADVOCATE)

¶18

¶19

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶20

AND:

¶21

M/S. AMULYA ARCHITECTS NO.3, 5TH CROSS 10TH MAIN, 4TH BLOCK H B R LAYOUT BENGALURU-560043 REPRESENTED BY HER GPA HOLSER SRI SOMASHEKAR

¶22

…RESPONDENT

¶23

(BY SRI. K S MALLIKARJUNAIAH, ADVOCATE)

¶24

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 2.11.2016 [ANNEXURE-A] PASSED BY THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU [CCH NO.5] IN O.S.NO.7621/2016 THEREBY ALLOWING IA.NO.3 FILED BY THE RESPONDENT HEREIN UNDER ORDER XXXVIII RULE 5 OF THE CODE OF CIVIL PROCEDURE 1908 AND ETC.

¶25

IN W.P.No.61203/2016

¶26

BETWEEN:

¶27

MRS. LAKSHMI ABHIRAM W/O J ABHIRAM AGED ABOUT 53 YEARS

¶28

MR J ABHIRAM S/O JAYASURYA AGED ABOUT 55 YEARS

¶29

MR VINEET ABHIRAM S/O J ABHIRAM AGED ABOUT 30 YEARS

¶30

ALL ARE R/O NO.16, FLAT NO.201

¶31

¶32

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶33

RENAISSANCE SURYA, 5TH MAIN 9TH CROSS, OPPOSITE B P INDIAN HIGH SCHOOL, MALLESHWARAM BENGALURU-560003

¶34

…PETITIONERS

¶35

(BY SRI. AMIT A MANDGI, ADVOCATE)

¶36

AND:

¶37

M/S. AMULYA ARCHITECTS NO.3, 5TH CROSS 10TH MAIN, 4TH BLOCK H B R LAYOUT BENGALURU-560043 REPRESENTED BY HER GPA HOLSER SRI SOMASHEKAR

¶38

…RESPONDENT

¶39

(BY SRI. K S MALLIKARJUNAIAH, ADVOCATE)

¶40

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 2.11.2016 [ANNEXURE-A] PASSED BY THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU [CCH NO.5] IN O.S.NO.7621/2016 THEREBY ALLOWING IA.NO.2 FILED BY THE RESPONDENT HEREIN UNDER ORDER XXVI RULE 9 AND 10A OF THE CODE OF CIVIL PROCEDURE 1908 AND ETC.

¶41

THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

¶42

¶43

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶44

ORDER

¶45

These petitions are by the defendants in

¶46

O.S.No.7621/2016 on the file of the IX Additional

¶47

City Civil and Sessions Judge, Bengaluru (for short, ' the civil Court '). The petitioners are aggrieved by the civil Court's ex-parte orders dated 02.11.2016. The civil Court by these impugned orders has allowed the respondent-plaintiff's application (I.A.No.2) under Order XXVI Rule 9 and 10A of the Code of Civil Procedure, 1908 (for short, ' the civil Court' ) and has directed the petitioners to furnish security for the suit claim with the observation that the conditional order of attachment would be made absolute, if there is failure to furnish security considering the respondent's application (I.A.No.3) under Order XXXVIII Rule 5 of CPC.

¶48

This Court on 05.12.2016 has stayed the operation of the impugned order and this order is continued from time to time. The learned counsels for

¶49

5 - WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶50

the petitioners and the respondent are heard for final disposal, and they submit that the pleadings have been completed and the suit is set down for framing of Issues.

¶51

The petitioners are the owners of the subject property, who have entrusted construction of a residential building therein to the respondent under a contract. The respondent has commenced construction, but there is dispute with the petitioners terminating the contract contending inter alia that the respondent, which is managed by a person who resides abroad, is not able to complete the construction and the construction achieved so far is not to the standards or the specifications agreed upon. The respondent has commenced the suit for recovery of money which according to it is payable by the petitioners for the work executed. It transpires from the record that both the respondent and the petitioners have earlier filed their cross suits for

¶52

¶53

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶54

temporary injunction and the petitioners' suit for permanent injunction is decreed.

¶55

The civil Court, as observed earlier, has allowed the respondent's application under Order XXVI Rule 9 and 10A of CPC even before issuance of notice because it is alleged by the respondent that the petitioners propose to bring down the construction and if the construction is brought down, the adjudication on its claim would be jeopardized. The applications for appointment of Commissioners for local inspection are considered, generally as a rule, after the parties have led their respective evidence and when it can be opined that the evidence on records requires elucidation. It would be under very rare and exceptional circumstances that a Court Commissioner is appointed for local inspection on the first day and there must be very strong and compelling reasons for exercise of such jurisdiction. As regards the reasons, a useful reference could be

¶56

7 - WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶57

made to the decision of the Hon'ble Supreme Court in

¶58

Rahul S Shah Vs. Jinendra Kumar Gandhi and

¶59

Others¹ .

¶60

The civil Court has not considered these aspects and therefore, there must be interference with the civil Court's order on the application under Order XXVI Rule 9 of CPC and suitable orders must be passed in the light of the undisputed submission that the construction in the subject property remains as it was as of the date of institution of the suit. Further, the civil Court in terms of the provisions of Order XXXVIII Rule 5 of CPC, is expected to assign reasons for issuing orders of conditional attachment keeping in mind the circumstances under which such jurisdiction could be exercised. The civil Court's impugned order on the respondent's application does not record any such reason. Therefore, there must be

¶61

1 (2021) 6 SCC 418

¶62

8 - WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶63

interference even with this order. Hence, the following:

¶64

ORDER

¶65

The petitions stand disposed of

¶66

quashing the civil Court's order insofar as the respondent's application (I.A.No.2) under Order XXVI Rule 9 and 10A of CPC. However, if the petitioners propose to change the nature of the property, the respondent is reserved liberty to file appropriate application with the civil Court.

¶67

The civil Court's order on the

¶68

respondent's application (I.A.No.3) under Order XXXVIII Rule 5 of CPC is quashed with liberty to the petitioners to complete their pleadings on this application and calling upon the civil Court to consider the merits of such application strictly in

¶69

WP No. 61204 of 2016 C/W WP No. 61203 of 2016

¶70

¶71

accordance with law after due opportunity

¶72

to the petitioners.

¶73

SD/JUDGE

¶74