The High Court of Karnataka dismissed a writ petition filed by defendant No.4 challenging an order that allowed a belated review application in a suit for permanent injunction. The Court found no bona fides in the petitioner's conduct after being dismissed for delay.
The writ petition is dismissed; pending I.As. shall stand closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
S/O LATE SRI MOHAMMED ABDUL KAREEM AGED ABOUT 53 YEARS,
ALL ARE RESIDING AT NO.8, BENSON ROAD, BENSON TOWN, BANGALORE-560 046.
NO.1, CANNAUGHT ROAD, OFF QUEENS ROAD, BANGALORE-560 052
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:
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.
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.
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
NC: 2024:KHC:24574 WP No. 5674 of 2020
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.
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
NC: 2024:KHC:24574 WP No. 5674 of 2020
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 List No.: 1 Sl No.: 11
3 issues framed by the court
Whether the High Court should interfere with the appellate order dismissing a review application as beyond the scope of review and filed without bona fides.
Whether the delay in filing the review application precludes the petitioner from seeking further relief via writ petition.
If the High Court is justified in holding that a matter posted for judgment permits no new applications and the subsequent appellate overturning was technical.
3 provisions across 3 enactments
SRI.MODI AHMED
SMT.ANEESA
SMT.ASMA HAYATH
SMT.SHAMEEN YOUSUFF
SRI.NASIR AHAMED
SHAKIR AHAMED
LALITHA KANNEGANTI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
