Mistake in the cause title was not intentional and no offence appeared to have been committed by the respondent, leading to the dismissal of the application filed under Section 340 of Cr.P.C.

JUDGMENT

1. This appeal is filed under Section 341 of Cr.P.C. assailing the order dated 09.01.2019 passed by the court of XLIV Addl. City Civil Court, Bengaluru in O.S.No.6246/2017.

2. It is stated by the appellant that he purchased a shop in commercial complex known as Esteem Kanaka Plaza, Jayanagar, Bengaluru. The respondent in his individual capacity, purchased another shop next to the shop of the appellant. An association came to be formed in the name and style of 'Esteem Kanaka Plaza Vanijya Sankeerna Maalikara Kshemabhivrudhi Sangha' in order to look after and manage the commercial complex. The respondent being unable to digest the progress of the appellant in his business, filed a suit in O.S.No.6246/2017 for the relief of injunction. The appellant appeared before the Court and filed written statement as well as an application under Order 7 Rule 11 of Code of Civil Procedure, contending that the person who filed the suit never existed and he is not a person in the eye of law. The respondent filed an amended application in order to cure the defect to which the appellant filed objection. However, the respondent withdrew the suit.

3. It is the contention of the learned counsel for the appellant that the respondent created a fictitious association and created fabricated seal and filed the suit in the name of Esteem Kanaka Plaza Owners Welfare Association. The respondent had filed a written statement before the competent authority namely the Registrar of the Society wherein he had affixed the corrected seal of the Association by name 'Esteem Kanaka Plaza Vanijya Sankeerna Maalikara Kshemabhivrudhi Sangha'. Hence, he submits that the cause title of the suit mentioning that the said association is registered association and affixing the seal of the same name to the plaint amounts to offences under the Indian Penal Code namely Sections 191 to 193, 196 to 200 and under sections 205 and 209 of IPC.

4. The learned counsel for the appellant submits that the court below without properly appreciating the application filed under Section 341 of Cr.P.C. and without considering the contentions urged has erroneously rejected the application filed by the appellant to take cognizance of the above offences.

5. The appellant is the defendant in O.S.No.6246/2017 on the file of the Court of City Civil Judge at Bengaluru. The suit was filed by the respondent seeking injunction in respect of the suit schedule A and B properties mentioned therein. Appellant filed an application under Section 340 of Cr.P.C. To the said application, the respondent herein filed objections. The court below by an order dated 09.01.2019 was pleased to dismiss the application, which is impugned in this appeal.

6. It is not in dispute that on 29.01.2018, in the light of the memo filed by the counsel for the plaintiff to withdraw the suit, the suit came to be dismissed as withdrawn. Thereafter, on 13.06.2018, the above noted application came to be filed. According to the learned counsel for the appellant, the seal which was used in the plaint is totally a different seal and therefore the plaintiff instituted a suit in the name of fictitious person. He submits that the contention of the plaintiff that it is a typographical error cannot be accepted.

7. Perusal of the impugned order goes to show that the plaintiff had filed an application i.e. I.A.No.3 under Order 6 Rule 17 of Code of Civil Procedure seeking amendment in the cause title to insert the name of the plaintiff as 'Esteem Kanaka Plaza Vanijya Sankirna Maalikara Kshemabhivrudhi Sangha'. However, subsequently on filing a memo, the suit came to be withdrawn. The court below has also noted that there is no ex-parte temporary injunction granted infavour of the plaintiff. It has come to the conclusion that the mistake in the cause title was not an intentional one and the plaintiff had made an attempt to correct the mistake by filing the application for amendment. It is also noticed that the plaintiff had not led any evide