IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.No.28349 OF 2019 (GM-CPC) BETWEEN 1. M/S S.A. RAWTHER SPICES (P) LTD., (GOVERNMENT RECOGNISED EXPORT HOUSE) NO.17, II FLOOR, 4TH MAIN, IV BLOCK, GORAGUNTEPALYA, TUMKUR ROAD, BENGALURU - 560 022.
REPRESENTED BY ITS DIRECTOR, SRI.ANISH M RAWTHER @ ANEES MOHAMMED RAWTHER.
2. SRI.ANISH M RAWTHER @ ANEES MOHAMMED RAWTHER, AGED ABOUT 38 YEARS, NO.17, II FLOOR, 4TH MAIN, IV BLOCK, GORAGUNTEPALYA, TUMKUR ROAD, BENGALURU - 560 022, KARNATAKA. ... PETITIONERS (BY SRI.N.SURESHA, ADVOCATE) AND 1. SRI.HAFEEZ UR RAHMAN, S/O LATE ABDUL AZEEZ, AGED ABOUT 76 YEARS, 2. DR.ZARINA BEGUM, W/O HAFEEZ UR RAHMAN, AGED ABOUT 70 YEARS, 3. SRI.SHOAIB UR RAHMAN, S/O HAFEEZ UR RAHMAN, AGED ABOUT 43 YEARS, RESPONDENTS 1 TO 3 ARE PERMANENTLY RESIDING AT HULKODE ESTATE, AREHALLY, BELUR TALUK, HASSAN DISTRICT - 573 101.
4. SMT.NAKHAT MUBEEN @ NAKHAT FATHIMA, W/O MR.MOHAMMED ASIF MUBEEN, AGED ABOUT 49 YEARS, 5. SMT.DR.SHABANA PASHA @ SHABANA FATHIMA, W/O MR VASIF PASHA, AGED ABOUT 46 YEARS, RESPONDENTS 4 AND 5 ARE RESIDING AT C/O MR.HAFEEZ DR REHMAN, HULKODE ESTATE, AREHALLY, BELUR TALUK, HASSAN DISTRICT - 573 101. ... RESPONDENTS (BY SRI.POONACHA C.M, ADVOCATE FOR C/R1 TO R5) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.6.2019 PASSED ON I.A.NO.3 IN COM.OS NO.1026/2018 ON THE FILE OF LXXXII ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH-83) BENGALURU, PRODUCED AT ANNX-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HERAING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the defendants in a summary suit filed by the respondents/plaintiffs in O.S.No.1026/2018 seeking a money decree, are invoking the writ jurisdiction of this Court for assailing the order dated 19.06.2019, a copy whereof is at Annexure-E whereby, the learned LXXXII Addl. City Civil Judge, Bengaluru, having favoured their application in I.A.No.3 filed under Order XXXVII Rule 3(5) of CPC, 1908 for grant of leave to defend the suit, has stipulated a condition that they shall deposit 50% of the claim amount within 15 days.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this court declines to grant indulgence in the matter for the following reasons:
(a) the order granting leave has been made in the exercise of statutory discretion vested in the court below and that there is absolutely no ground for diluting the condition which stipulates depositing of 50% of the suit claim amount; such discretionary orders ordinarily are not subject to a deeper scrutiny at the hands of the writ court exercising supervisory jurisdiction under Article 227 of the Constitution of India vide decision of the Apex Court in the Case of Trinbak Gangadhar Telang Vs. Ramachandra Ganesh Bhide, AIR 1977 SC 1222, in the absence of an error apparent on the face of the record, factual or legal;
(b) it is a settled legal position that in a summary suit, right to defend is not a matter of course but is of leave of the trial court; the trial court in it’s wisdom having considered all aspects of the matter, has granted the leave but subject to the condition of making deposit of 50% of the suit claim amount; it is not the case of the petitioners that they do not own any property at all; twice the matter was adjourned at the request of the petitioners on the assurance that they would furnish some freehold, but did not keep the assurance and thus, the Writ Petition lacks bonafide; and, (c) the Apex Court in the case of IDBI Trustyship Services Ltd, V/s Hubtown Ltd, 2017 (1) SCC 568 has laid down six principal parameters which the court considering the application for grant of leave to defend a summary suit need to keep in view; which of these principles is violated in making the impugned order, has not been shown, though the matter was heard on several occasions; even otherwise also, petitioners do not deserve grant of discretionary/equitable remedy at the hands of this court since they have not laid open all their property holdings in the court below; in fact, some title deeds were sought to be produced before this court but the same were not mentioned before the court below; thus, the petitioners culpable conduct comes in the way of granting any relief to them.
In the above circumstances, this Writ Petition being devoid of merits, stands dismissed. However, the time granted by the court below for complying with the condition subject to which leave to defend has been bestowed, is extended for a period of two weeks from this day, hoping that petitioners would make use of that.
No costs.
cbc Sd/- JUDGE