- 1 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 25141 OF 2025 (GM-CPC) BETWEEN: M/S GIRIAS INVESTMENT PRIVATE LIMITED, (A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956) HAVING ITS REGISTERED OFFICE AT NO.47, 3RD FLOOR, 15TH CROSS, 3RD MAIN, MARGOSA ROAD, MALLESHAWARM, BENGALURU, KARNATAKA – 560 003. REPRESENTED BY ITS DIRECTOR MR. NAVEEN GIRIA. …PETITIONER (BY SRI. G. V. CHANDRASHEKAR, SENIOR COUNSEL FOR SRI. CHENDANDA P. SOMANNA, ADVOCATE) AND: 1. MR. DEEPAK RAJ CHOPRA AGED ABOUT 65 YEARS S/O. OM PRAKASH CHOPRA 2. MR. VINOD KUMAR CHOPRA AGED ABOUT 61 YEARS S/O. OM PRAKASH CHOPRA 3. MR. ASHOK KUMAR CHOPRA AGED ABOUT 60 YEARS S/O. OM PRAKASH CHOPRA 4. MR. UMESH KUMAR CHOPRA AGED ABOUT 52 YEARS S/O. OM PRAKASH CHOPRA Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 5. MRS. BHAVANA CHOPRA AGED ABOUT 63 YEARS W/O. DEEPAK RAJ CHOPRA 6. MRS. SANGEETA CHOPRA AGED ABOUT 59 YEARS W/O VINOD KUMAR CHOPRA 7. MRS. ANURADHA CHOPRA AGED ABOUT 56 YEARS W/O ASHOK KUMAR CHOPRA 8. MRS. SHEEMA CHOPRA AGED 50 YEARS, W/O UMESH KUMAR CHOPRA, ALL ARE RESIDING AT NO.1/1, OLD NO.209, UPPER PLACE, ORCHARDS, BELLARY ROAD, SADASHIVANAGAR, BENGALURU KARNATAKA – 560 080 …RESPONDENTS (BY SRI. ABHINAV RAMANAND A., ADVOCATE FOR C/R1) THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD 01.08.2025 PASSED BY THE LXXXIX ADDL. CITY CIVIL AND SESSION JUDGE AT BENGALURU COMMERCIAL COURT IN COM OS NO. 1369/2023 ONIA NO. 5 ANNX-A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR - 3 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 ORAL ORDER The defendant in Com.O.S.No.1369/2023 is before this Court by way of the present petition assailing the impugned order dated 01.08.2025 passed by the LXXXIX Addl. City Civil and Sessions Judge, Bengaluru (for short “the Commercial Court”), whereby the application, I.A.No.5 filed by the petitioner-defendant under Section 151 CPC to strike off the evidence of the respondents-plaintiffs through PW1 was dismissed by the Trial Court. 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. A perusal of the material on record will indicate that the respondents-plaintiffs have instituted the aforesaid Com.O.S.No.1369/2023 against the petitioner-defendant for eviction/ejectment, enquiry into future mesne profits and for other reliefs. 4. In addition to contesting the suit by filing written statement, the petitioner-defendant has also put forth a counter claim before the Commercial Court. It is a matter on record that the issues having been framed by the Commercial Court, respondent No.1 examined himself as PW-1 and was cross - 4 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 examined by the petitioner and the matter had been stood posted for evidence of the defendant, at which stage, the petitioner filed the instant application seeking expunging/discarding the evidence of PW-1 on the ground that during the course of evidence, PW1 has deposed not only as regards the claim made in the plaint, but has also given evidence as regards the averments made in the counter claim, for which written statement filed by the respondents was refused and as such, the said portion of evidence deserves to be expunged. The said application having been opposed by the respondents, the Trial court proceeded to pass the impugned order rejecting IA No.5 by holding as under. “The plaintiffs have filed this suit against the defendant praying the Court to pass a judgment and decree directing the defendants to quit and vacate the schedule property and hand over vacant possession of the same to the plaintiffs; directing enquiry into mesne profits from the date of filing of the suit until the defendant hands over vacant possession of the property and costs and for such other reliefs in the interest of justice and equity. 02. After issuance of summons the defendant has put- forth his appearance before the Court through his counsel and filed written statement. ORDERS ON IA NO.5 - 5 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 03. The defendant has filed IA No.5 under Section 151 of CPC praying this Court to strike off the evidence of plaintiffs through PW.1 in the interest of justice and equity. 04. In support of IA No.5 Sri. Naveen Giria, the Director of defendant Company has sworn to an affidavit. In the said affidavit he has averred that vide order dated 29.07.2024 this Court has taken the plaintiff's rejoinder to the defendants' counterclaim as not filed. That, subsequently, the plaintiffs filed an IA seeking to recall the order dated 29.07.2024. That, however, this Court having considered the arguments, vide order dated 29.11.2024 rejected their IA and passed an order stating that the Rejoinder/written statement which is filed by the plaintiffs along with their IA as not part of the file. That, as such on 28.03.2025, the plaintiff No.1 filed his affidavit in lieu of examination in Chief and he is treated as PW.1. 05. That, the plaintiffs have not filed their Rejoinder/written statement to the defendants counterclaim. That, despite this, during the examination in chief, the plaintiffs are seeking to introduce facts and defenses that ought to have been specifically pleaded by way of a rejoinder. That, this amounts to leading evidence beyond the pleadings, which is impermissible in law. 06. That, in light of the forgoing, it is a fit case for this court to allow the accompanying application and discard and strike off the evidence adduced by the plaintiffs through PW.1. - 6 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 07. That, the present application is being filed in the above circumstances and for the above bona fide reason, the defendant has a good case on merits and as such, grave and irreparable prejudice will be caused to the defendant if the present application is not allowed. 08. That, if the present application is allowed, no prejudice will be caused to the plaintiffs. On the other hand, if the accompanying application is rejected, the defendant will suffer immense hardship to their valuable and legitimate rights. By contenting so defendant prays to allow the application. 09. On the other hand the plaintiff has filed objections contending that the defendant seeking this Court to strike off the evidence of the plaintiffs though PW.1 is neither maintainable in law nor on facts and the same is liable to be dismissed in limine. 10. That, the present application is an attempt to mislead Court and obtain wrongful order at the hands of this Court and the application deserves to be dismissed with exemplary cost. 11. That, at this juncture, it is relevant to mention that the order of this Court is challenged before the Hon'ble High Court of Karnataka in WP. No. 2899/2025 and the same is pending adjudication. That, since the orders passed by this Court has not attained finality and is a subject matter of ‘lis' before the Hon'ble High Court of Karnataka, the - 7 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 Rejoinder/written statement filed by the plaintiffs is not a part of the file is incorrect 12. That, as per the Order XIX of the CPC the defendants have not been able to point out any deviation on the part of the plaintiffs which warrants striking off the entire evidence of the plaintiffs. That, on this score alone the application is liable to be dismissed. 13. That, the present applications is filed invoking Section 151 of CPC, the Catena of decisions of both the Hon'ble High Court of Karnataka as well as the Hon'ble Apex Court has time and again held that Section 151 of the CPC is only discretionary power. That, Section 151 of CPC does not empower this Court to strike off the evidence. That, on this score also, the present application is liable to be rejected with costs. 14. That, seen from any angle, the application filed by the defendant fails and liable to be rejected with heavy cost for having taken the process of this Court for granted and causing waste of judicial time. 15. That, without prejudice to the contentions taken supra and the fact that the present application is liable to be dismissed. That all other averments that are not traversed either specifically or by necessary implications and that which are contrary to and inconsistent with the present statement of objections are hereby denied as false and baseless and the defendant is put to strict proof of the same. - 8 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 By contending so, the plaintiffs pray to dismiss the application. 16. I have heard the arguments addressed by the learned counsel for the plaintiffs and defendant. 17. The counsel for plaintiff has filed following citations: Sl. No. Particulars Citations 01. Priti Ganesh Nagrarve Vs. Arvind Nilkhantrao Thulkar 2025 SCC Online Bom 1085 18. The counsel for defendant has filed following citations: Sl. No. Particulars Citations 01. Ram Sarup Gupta (dead) by L.Rs. V. Bishun Narain Inter College and others AIR 1987 SC 1242 02. Kaushi Narasinbhai Patell and Others Vs. S.J.R. Prime Corporation Private Limited and Others (2024) 9 SCC 462 - 9 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 19. Now the points that arise for my consideration are as under: 1. Whether the applicant/defendant has made out a ground so as to allow IA No. 5? 2. What Order? 20. My findings on the above Points are as under: POINT No. 1: In the NEGATIVE POINT No. 2: As per final Order for the following: REASONS 21. POINT No.1: Keeping in mind the rival contentions urged by both the parties I would like to bestow my attention to the ordersheet wherein admittedly on 29.11.2024 this Court has passed an order on IA No.3 through which the rejoinder filed by the plaintiff is not taken on record. Admittedly, the said order passed by this Court is challenged by the plaintiff herein before Hon'ble High Court of Karnataka and it is pending for consideration. At this stage, I am of the view that the order passed by this Court has not attained finality and therefore the arguments canvassed by the defendant counsel that as the affidavit of PW.1 contains some of the facts pertaining to the rejoinder averments and on this ground entire affidavit evidence of PW.1 needs to be discarded holds no water. 22. If the affidavit of PW. 1 contains facts which are outside the scope of pleading, the defendant is at liberty to Cross-examine the PW.1 on those particular facts and can take benefit of the said evidence. The Court is also empowered to reject the evidence which is not part of the - 10 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 pleading at the time of final judgment. Hence, in my opinion the application filed by the defendant being devoid of merits is liable to be dismissed. 23. The learned counsel appearing for defendant has relied upon the decisions of Hon'ble Apex Court reported in AIR 1987 SC 1242 and 2024 (9) SCC 462 and argued that in the absence of pleading any evidence produced by the parties cannot be considered. 24. On careful reading of the above said decisions, I am of the view that there is no dispute with regard to the well settled proposition of law that no party should be permitted to travel beyond its pleading and proof without pleading and pleading without proof is of no consequence. However, in the present case on hand as the order passed by this Court on IA No.3 which is challenged by the plaintiff before Hon'ble High Court of Karnataka is pending for consideration, I am of the view that above noted decisions will not come to the aid of the defendant at this stage. 25. Per contra, the learned counsel for the plaintiff relied upon the decision of Hon'ble High Court of Bombay reported in 2025 SCC OnLine Bom 1085. Wherein it is categorically held that the Court is not empowered to withdraw the affidavit which has become part of the record and that the Court cannot discard the affidavit. 26. In the present case on hand the defendant herein has got every right to Cross-examine PW.1 and elicit truth even regarding the facts which are subject matter of rejoinder. Therefore, the application filed by the defendant - 11 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 deserves to be dismissed. Hence, in my opinion there is no valid ground to allow the present application. Therefore, the application filed by the defendant being devoid of merits deserves to be dismissed by imposing cost. Hence, I answer point No.1 in the NEGATIVE. 27. Point No.2: In view of the findings on Point No.1, I proceed to pass the following: ORDER The application filed by the defendant under Section 151 of CPC is hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only).” 5. A perusal of the material on record will indicate that the Trial Court has come to the correct conclusion that in the event the affidavit evidence of PW-1 contains facts which are outside the scope of pleading, the petitioner-defendant would be entitled to cross examine PW-1 and can also take advantage of the said evidence and that the Trial Court was empowered to reject the evidence, which is not a part of the pleading at the time of final judgment. So also at paragraph No.26 of the impugned order, the petitioner has been reserved right to cross examine PW-1 and elicit truth even regarding facts on the subject matter of the rejoinder and as such, there was no valid ground to expunge/discard the evidence of PW-1 during the course of trial and the said contention - 12 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 of the petitioner would necessarily have to be considered by the Trial Court at the time of final disposal of the suit while dealing with all aspects of the matter. In my considered opinion, the impugned order passed by the trial Court cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath – (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya – (2022) 10 SCC 477. 6. In addition thereto, liberty would have to be reserved in favour of the petitioner and respondents to urge all contentions including the contentions as regards admissibility, relevance, proof, probative value etc. of the evidence of PW-1 and other witnesses to be examined on behalf of the plaintiffs and also the evidence to be adduced by the petitioner-defendant at the time of final disposal of the suit and all rival contentions in this regard are to be kept open to be decided by the Trial Court. Under these circumstances, I am of the view that the impugned order passed by the Trial Court - 13 - HC-KAR NC: 2026:KHC:3149 WP No. 25141 of 2025 does not warrant interference by this Court by this court in the present petition, which deserves to be disposed of by issuing certain directions. 7. In the result, I pass the following: ORDER (i) The petition is hereby disposed of without interfering with the impugned order. (ii) It is however made clear that all rival contentions as regards the evidence already adduced by PW-1 and the evidence to be adduced by both parties and on all aspects of the matter including admissibility, proof, relevance, probative value etc., of the evidence of PW.1 and other witnesses adduced / to be adduced by both parties are kept open to be decided by the Trial Court, in accordance with law and no opinion is expressed on the merits/demerits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC: List No.: 2 Sl No.: 10