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2010 DIGILAW 381 (KAR)

Hanumaiah v. Parish Priest, Bangalore

2010-03-24

RAVI MALIMATH

body2010
Judgment : Ravi Malimath. J 1. The respondent filled a suit seeking eviction of the petitioner and for damages and mesne profits. I.A. No. 3 was filed seeking deletion of the prayer 7(b), which was allowed. On being questioned before the Hon’ble High Court by the order dated 18.12.2006 passed in CRP 600/2006. The same was rejected. Thereafter, the Court of Small Causes returned the plaint for want of jurisdiction. On return, the respondent has preferred the same before the City Civil and Sessions Judge without deleting the prayer 7(b). Hence. I.A.No.I was filed by the petitioner/defendant for the deletion of prayer 7(b). The Court below by the impugned order rejected the said application. Hence the present petition. 2. Sri Madhukar Nadig, learned Counsel appearing for the petitioner contends that the prayer 7(b) having been deleted, the same cannot be inculcated in the present plaint, since the plaint has been returned for representation. 3. The respondent’s Counsel is absent. 4. Heard the learned Counsel appearing for the petitioner. 5. The prayer 7(b) is as follows: “7(b) Direct the defendant to pay the damages and mesne profits for use and occupation of the Suit Schedule premises from 01.11.05 and the arrears of rent from 1.12.2003 till 31.10.05 amounting to Rs. 34,500/-.” 6. The said prayer has been deleted at the instance of the respondent/plaintiff himself. Since the suit has been returned for representation, the said prayer could not be added in the present plaint. The plaintiff is required to re-present the plaint after the deletion of prayer 7(b) by virtue of the deletion order. If the plaintiff want to seek remedy on prayer 7(b), he has to file a separate suit. In the instant case, the same has not been done. The Trail Court failed to consider the same and erroneously passed the order. 7. For the aforesaid reasons, the order dated 01.06.2009 passed on I.A.No. I in O.S. No. 26823/2007 by the XXVI Additional City Civil and Sessions Judge, Bangalore is set aside. I.A.No.I filed by the petitioner is allowed Prayer 7(b) stands deleted from the proceedings. In view of the pendency of the suit since the year 2005, the Trail Court shall hear and dispose off the suit in accordance with law by the end of June, 2010. 8. Ordered accordingly.