Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 173 (KAR)

K. Narayana Murthy v. B. G. Suresh

2020-01-21

MOHAMMAD NAWAZ

body2020
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. 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 evidence and not entered the witness box and he filed an application for amendment and he has withdrawn the suit. 8. The learned counsel for the appellant would place reliance on the decision of the Honble Supreme Court reported in (2011) 8 SCC 249 in the case of Ramrameshwari Devi and Others and the case of H.S. Bedi v. National Highway Authority of India (Delhi) reported in LAWS (DLH) 2016 1 115 . Both the above decisions relied upon by the learned counsel is not applicable to the facts of the present case. Both the above decisions relied upon by the learned counsel is not applicable to the facts of the present case. It is held in Ramrameshwari Devi (supra), by the Honble Supreme Court that: 'Prolonging trial by creating obstacles by making frivolous applications or filing forged documents with motive of avoiding dispossession of unauthorized persons from immovable property of plaintiff. - Even if wrongdoers are ultimately evicted from property by court after a long lapse of time, they are not generally adequately punished Thus There is an inherent gain or incentive for wrongdoers under present system which requires to be eliminated.' 9. In H.S. Bedi (supra), it is a case of false claim, hence, notice was issued to show cause as to why the complaint be not made under section 340 of Cr.P.C for making false claim Under Section 209 of IPC. It is observed therein that section 209 is not limited to cases where the whole claim made by the accused is false but it applies even where part of the claim is false, while considering the ingredients of Section 209 of IPC, it was held that Section 209 is not limited to cases where the whole claim made by the accused is false. It applies even where a part of the claim is false. 10. In the case on hand, the respondent has not made any false claim. As rightly observed by the court below, mistake in the cause title can not be said to be an intentional one. Respondent/plaintiff made an attempt to correct the mistake by filing an application for amendment. No offence appears to have been committed by the respondent so as to conduct an enquiry under section 340 of Cr.P.C. 11. In view of the discussion made herein above and considering the facts of the present case and the reasons assigned by the court below, I do not find any illegality or infirmity in dismissing the application filed by the appellant under Section 340 of Cr.P.C. For the foregoing reasons, I pass the following: ORDER The appeal is dismissed.