IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CIVIL REVISION PETITION No.64 OF 2019 BETWEEN Smt. Sulochana, Aged about 63 years, W/o. Sri. S.Venkatesh, Resident of A.C.Ramappa Building, Adalahalli, Bengaluru-560026.
Represented by G.P.A. Holder, Sri. Naresh Chandra Rath, Aged about 58 years, S/o. Late Rama Krishna Rath, Now at Nadibaradha Road, Khannagar, Cuttack-753010, Orissa State.
(By Sri. B.S.Jeevan Kumar, Advocate) AND Sri. Thimmaraya Swamy, Major, Presently resident of (illegal) No.64/h, B.D.A. Koramangala, (Jakkasandra) Extension, Bengaluru-560034.
(By Sri. S.Srinivasamurthy, Advocate) …Petitioner …Respondent This Civil Revision Petition is filed under Section 115 of CPC, against the order dated 15.11.2018 passed on I.A.No.1 and 2 in O.S.No.10811/2006 on the file of the V Additional City Civil Judge, Bengaluru City, rejecting the I.A.No.1 and 2 under Section 114 read with Section 152 of CPC and under Section 5 of Limitation Act.
This Civil Revision Petition coming on for admission, this day, the Court made the following :
ORDER Heard the petitioner’s counsel and the respondent’s counsel at the time of admission.
2. The petitioner is a plaintiff in O.S.No.10811/2006 on the file of City Civil Judge, Bengaluru. In the suit the plaintiff made an application I.A.No.2 for impleading the BDA as defendant no.2. The said application was allowed on 25.01.2018 and the plaintiff was permitted to implead the BDA as defendant no.2. The plaintiff was also directed to amend the plaint. Accordingly the plaint was amended. After amending the plaint, the plaintiff was supposed to file amended plaint. Since the plaintiff did not file amended plaint, the trial court by order dated 28.05.2018 rejected the plaint as against defendant no.2 i.e., the impleaded defendant. Seeking to recall this order the plaintiff filed I.A.6 under Section 151 CPC. By order dated 30th June, 2011, this application was dismissed. Again the plaintiff made an application under Order 1 Rule 10(2) CPC for impleading the BDA. This application was rejected on 22nd August, 2012. Thereafter the plaintiff made an application I.A.8 under Section 151 CPC for recalling the order dated 22.08.2012. This application was also dismissed by order dated 12th March, 2013. This order on I.A.8 was challenged by plaintiff by filing writ petition No. 18242/2013. This court by order dated 10th February, 2015 dismissed the writ petition as the suit had been dismissed for default by them. The plaintiff filed a review petition No.505/2015 for reviewing the order in the writ petition. It was also dismissed. It appears that the suit was restored on an application made by the plaintiff and thereafter the plaintiff made one more application under Section 114 CPC seeking review of the order dated 28.05.2008. The plaintiff also made an application under Section 5 of the Limitation Act for condoning delay of 3396 days in filing the review petition. This application was dismissed and this order was challenged in the review petition.
3. The learned counsel for the petitioner argues that in the first instance the application filed by the plaintiff under Order 1 Rule 10(c) CPC was allowed. Thereafter the plaintiff amended the plaint. Just because the plaintiff did not file amended typed copy of the plaint, the plaint came to be rejected against defendant no.2. When the plaint stood amended, it should not have been rejected. There might be delay in making the application for reviewing the order of rejecting the plaint against defendant no.2, but in the light of these facts and circumstances, the court below should not have dismissed the review petition on the ground of delay. This is an error committed by the trial court. He argued for allowing the revision petition.
4. The learned counsel for the respondent argues that after rejection of plaint against defendant no.2, the BDA, the subsequent development shows that the order dated 28.05.2008 merges with the order passed subsequently on the identical application filed by the plaintiff. Therefore the trial court is justified in rejecting the review petition and also application for condonation of delay. He expresses doubts whether plaintiff is alive or not; and he submits that the whole case is stage managed by the power of attorney of the plaintiff. This is nothing but an abuse of process of court. Therefore this review petition is to be dismissed.
5. Having heard both the sides it is to be stated that though filing of typed copy of the amended copy was a formality once the plaint was amended after impleading application was allowed, subsequent developments show that the plaintiff lost his right to seek review of the order dated 28.05.2008. The plaintiff filed another application under Order 1 Rule 10(2) CPC for impleading the BDA. It was rejected. Another application was made for recalling this order. It was also rejected. Writ petition was filed thereafter challenging the order on I.A.6. It was also rejected and the review petition filed thereafter was also rejected. Therefore the order passed by the trial court on the second application filed under Order 1 Rule 10(2) CPC has become final. In these circumstances even if the trial court grants review, no purpose be been served. I do not find any merit in the review petition for these reasons. Therefore review petition is liable to be dismissed. Accordingly it is dismissed. If at all the plaintiff’s interest is affected by virtue of rejection of plaint against the BDA on 28.05.2008 for not filing the typed copy of the amended plaint, the plaintiff is at liberty to urge that point in the appeal that may be preferred by her subject to result of the suit.
Sd/- JUDGE sd