IN THE HIGH COURT OF KARNATAKA
ARAVIND KUMAR, J.
Infant Advertising Pvt. Ltd. & Another - Petitioners
Versus
K.B. Yellappa Reddy, Since Deceased by Lrs. & Others - Respondents
W.P. Nos. 53580, 53581 & 54539 of 2016 (GM-CPC)
Decided On : 20-02-2018
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 1, Rule 10(4) & (5) - Addition of defendant - Plaint required to be amended - Copies of amended plaint to be served on defendant impleaded/added - Proceedings against such defendant deemed to have begun only on service of summons
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 6, Rule 16 - Striking out pleadings - Eventualities in which power can be exercised are: (i) where pleadings are considered by Court to be unnecessary, scandalous, frivolous or vexatious, or (ii) where Court is satisfied that such pleadings may prejudice, embarrass or delay fair trial of suit, or (iii) where Court considers it to be an abuse of process of Court - Plaintiffs invoking Rule 16 on ground of variance between written statement filed by defendants and that filed by their legal representatives - Such plea does not fall in either of the three categories contemplated under Rule 16.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 8, Rule 6-A & Order 6, Rule 17 - Right to file additional written statement - Held, the right has to be exercise before evidence or complete closure of trial - Nonetheless, there cannot be any strait-jacket formula - It depends on facts and circumstances of each case - Object of Rule 6-A is to reduce multiplicity of proceedings - Legal representatives of defendants in their written statement reiterating what was pleaded by defendants - It cannot be gain said that such averments made by legal representatives were at variance/contrary to plea/defence set up by defendant - Trial Court therefore, justified in rejecting application of plaintiffs for recalling order by which written statement and counter claim filed by legal representatives of defendants.
1. Petitioners have filed suit O.S.No.26777/2011 seeking the relief of declaration that alleged termination of the contract by defendants-1 and 2 by communication dated 03.10.2011 is null and void; for permanent injunction restraining defendants-1 to 3 from disturbing their peaceful possession and enjoyment of nine (9) hoardings existing in the suit schedule properties; and, to grant permanent injunction by restraining defendants-1 to 3 from entering into lease deed with third parties in respect of erecting hoardings in the suit schedule properties.
2. Defendants-1 and 2 who are father and son have filed their written statement and counter claim. Plaintiffs filed written statement to the counter claim. Third defendant has inadvertently filed his written statement subsequently thereto. Additional written statement also came to be filed by defendants-1 and 2 in view of third defendant's written statement.
3. During the pendency of proceedings before trial Court, plaintiffs filed an interlocutory application-I.A.No.10 under Section 151 CPC to direct the defendants to file a separate suit for title, possession and injunction, which came to be rejected by order dated 20.09.2016. Plaintiffs also filed I.A.No.12 under Section 151 CPC to recall the order dated 01.10.2016 whereunder trial Court had received the written statement and counter claim filed by defendants-1(a) to 1(g) on record. On the same day, I.A.No.13 under Order 6 Rule 16 CPC came to be filed for striking of written statement and counter claim of defendant-2, which had been filed on behalf of legal representatives of defendant-1. These two applications namely, I.A.Nos.12 and 13 came to be rejected by common order dated 05.10.2016. Hence, plaintiffs have filed these three writ petitions challenging said orders.
4. For purpose of convenience, the details of writ petitions and the orders impugned together with I.A. Nos. filed before trial Court is tabulated herein below:
Sl. No.
W.P. Number
I.A. No.
Filed by
Purpose
Order
1
54539/2016 filed on 20-10-2016
10Sec. 151 filed on 07-09-2016
Petitioner
To direct the respondents to file a separate suit for title, possession and injunction
Rejected vide order dated 20-09-2016
2
53581/2016 filed on 06-1 0-2016
12Sec. 151 filed on 05-10-2016
Petitioner
To recall the order dated 01-10-16 taking on record WS & Counter claim of R1(a) to R1(g)
Rejected vide common order dated 05-10-2016
3
53580/2016 filed on 06-10-2016
13O.6 R.16 filed on 05-10-2016
Petitioner
Strike off WS & Counter claim of D2 purporting on behalf of LRs of D1
5. I have heard the arguments of Sri Tarakaram, learned Senior counsel and Smt. Pushpaveni, learned Advocate appearing for writ petitioners-plaintiffs, Sri S.B.Krishna, learned Advocate along with Sri H Manjunath, learned Advocate appearing for respondents-1(a) to 1(g) and respondent-2 respectively and Sri Madhusudhan Rao, learned Advocate appearing for respondent-3(a) to 3(g).
6. It is the contention of learned Advocates appearing for plaintiffs that allowing of application filed under Order 9 Rule 7 CPC by legal representatives of defendant-1 would not automatically give them a right to file written statement since they are appearing in the suit as legal representatives of defendant who has already entered his appearance and has filed the counter claim and additional defence. Hence, it is contended that legal representatives ought to have filed separate interlocutory application seeking permission to file written statement by explaining the reasons for additional plea of prayer for which plaintiffs would have had an opportunity to object. Hence, it is contended that order of the trial Court rejecting I.A.No.12 filed by plaintiffs is erroneous and it could not have permitted the legal representatives of
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