Karnataka High Court
Sri. Diwakar. K vs Smt. Chinnamma on 9 August, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/41
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION NO.33482 OF 2017(GM-CPC)
C/W.
WRIT PETITION NO.36035 OF 2017,
WRIT PETITION NO.36036 OF 2017,
WRIT PETITION NO.38602 OF 2017,
WRIT PETITION NOs.38074 & 38657-38662 OF 2017
IN W.P.NO. 33482/2017:
BETWEEN:
SRI. DIWAKAR. K
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
R/A KATRIGUPPA VILLAGE
KUNGUR POST, SARJAPURA HOBLI
ANEKAL TALUK
BANGALORE.
...PETITIONER
(BY SRI. R.SUBRAMANYA, ADVOCATE)
AND:
1. SMT. CHINNAMMA
W/O. LATE MALEYAPPA
AGED ABOUT 71 YEARS.
2. SRI. M. MOHAN KUMAR
S/O. LATE MALEYAPPA
AGED ABOUT 53 YEARS.
3. MASTER VINAY
S/O. M. MOHAN KUMAR
AGED ABOUT 16 YEARS
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
2/41
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
4. SRI. M. SRINIVAS
S/O. LATE MALEYAPPA
AGED ABOUT 51 YEARS.
5. SMT. K. SHEELA
D/O. M. SRINIVAS
AGED ABOUT 29 YEARS.
6. MS. SHILPA
D/O. M. SRINIVAS
AGED ABOUT 27 YEARS
7. SRI. SHIVAKUMAR
S/O. SRI. M. SRINIVAS
AGED ABOUT 25 YEARS.
8. SRI. M. VENKATESH
S/O. LATE MALEYAPPA
AGED ABOUT 45 YEARS.
9. KUM. CHANDRIKA
D/O. M. VENKATESH
AGED ABOUT 17 YEARS
SINCE MINOR
REP. BY FATHER
& NATURAL GUARDIAN.
10. KUM. RACHANA
D/O. VENKATESH
AGED ABOUT 13 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
11. MS. SHANTAKUMARI
D/O. LATE MAYELAPPA
W/O. SRI. PRAKASH
AGED ABOUT 43 YEARS.
12. SRI. M. VIJAYABHASKAR
S/O. LATE MAYELAPPA
AGED ABOUT 41 YEARS.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
3/41
13. SRI. VIVEK
S/O. M. VIJAYBHASKAR
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
AND NATURAL GUARDIAN.
14. KUM. MANISHA
D/O. VIJAYA BHASKAR
AGED ABOUT 15 YEARS
SINCE MINOR, REP. BY FATHER
AND NATURAL GUARDIAN
RESPONDENT NOS. 1 TO 14
R/AT PLOT NO. 207
RANGASWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE-560 037.
15. SRI. V.K.R.S.V. PRASAD RAO
S/O. LATE PEDDAVENKATESHWARALU
AGED ABOUT 56 YEARS
R/AT NO.2/19/2
PANCHAJANYA CONSTRUCTIONS PVT. LTD.
FOREST OFFICE ROAD
MADHADEVENAGAR
KAKINDA
ANDHRA PRADESH-533 033.
16. M/S. SHREE PANCHAJANAYA
INFRASTRUCTURE PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO. 2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.
FOREST OFFICE ROAD
MADHADEVENAGAR
KAKINDA
ANDHRA PRADESH-533 033
REP. BY ITS MANAGING DIRECTOR
SRI. V.K.R.S.V. PRASAD RAO.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
4/41
17. SRI. V.K.R.S.V. PRASAD RAO
MANAGING DIRECTOR
M/S. SHREE PANCHAJANAYA
INFRASTRUCTURE PVT. LTD.
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO. 2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.
FOREST OFFICE ROAD
MADHADEVENAGAR
KAKINDA
ANDHRA PRADESH-533 033.
18. SRI. K.N. MOHAN REDDY
S/O. SRI. D. NARAYANA REDDY
AGED ABOUT 43 YEARS
R/AT GULMAHAR FARM
VINAYAKNAGAR, GUNJUR MAIN ROAD
VARTHUR
BANGALORE-560 087.
19. SRI. M. SHANKARAPPA
S/O. LATE MUNIAPPA
AGED ABOUT 44 YEARS
R/AT CHOWDESHWARI TEMPLE STREET
VARTHUR
BANGALORE-560 087.
...RESPONDENTS
(BY SRI.G. LAKSHMINARAYAN, ADV., FOR R-1
TO R-7& R-11 TO R-14, V/O DATED 28.08.2017-ABSENT;
SRI. M. NARAYANA REDDY, ADV., FOR R-8 TO
R-10, V/O DATED 28.08.2017-ABSENT;
SRI. M.S. RAJENDRA ADV., FOR MRS. MAYA HOLLA,
ADVOCATE FOR R-15 TO R-17;
SRI. D. MANJUNATH, ADV., FOR R-18, NOTICE
TO R-19 IS D/W V/O DATED 28.08.2017)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED ON I.A. NO.12 IN O.S.
NO.26719/2013 DATED: 06.07.2017 ON THE FILE OF THE
XXVIII ADDITIONAL CITY CIVL AND SESSIONS JUDGE,
BANGALORE (PRODUCED AS ANNEXURE-A] AND DECLARE
THAT THE PLAINTIFF/PETITIONER IS NOT LIABLE TO PAY THE
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
5/41
STAMP DUTY AND PENALTY AS HE IS NOT PARTY TO THE
GENERAL POWER OF ATTORNEY DATED: 14.06.2008
EXECUTED BY THE RESPONDENT DEFENDANT NO.1 TO 14 IN
FAVOUR OF RESPONDENT NO.18 (PRODUCED AS ANNEXURE-
C].
IN W.P.NO.36035/2017:
BETWEEN:
SRI. DIWAKAR. K
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
R/A KATRIGUPPA VILLAGE
KUNGUR POST, SARJAPURA HOBLI
ANEKAL TALUK
BANGALORE.
...PETITIONER
(BY SRI. SUBRAMANYA. R, ADVOCATE)
AND:
1. SMT. CHINNAMMA
W/O LATE MALEYAPPA
AGED 71 YEARS.
2. SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA
AGED ABOUT 53 YEARS.
3. MASTER VINAY
S/O M. MOHAN KUMAR
AGED ABOUT 16 YEARS.
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
M. MOHANKUMAR.
4. SRI. M. SRINIVAS
S/O LATE MALEYAPPA
AGED ABOUT 51 YEARS.
5. SMT. K. SHEELA
D/O M. SRINIVAS
AGED ABOUT 29 YEARS.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
6/41
6. MS. SHILPA
D/O M. SRINIVAS
AGED ABOUT 27 YEARS.
7. SRI. SHIVAKUMAR
S/O SRI. M. SRINIVAS
AGED ABOUT 25 YEARS.
8. SRI. M. VENKATESH
S/O LATE MALEYAPPA
AGED ABOUT 45 YEARS.
9. KUM. CHANDRIKA
D/O M. VENKATESH
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
M. MOHANKUMAR.
10. KUM. RACHANA
D/O VENKATESH
AGED ABOUT 13 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
M. MOHANKUMAR.
11. MS. SHANTAKUMARI
D/O LATE MAYELAPPA
W/O SRI. PRAKASH
AGED ABOUT 43 YEARS.
12. SRI. M. VIJAYABHASKAR
S/O LATE MAYELAPPA
AGED ABOUT 41 YEARS.
13. SRI. VIVEK
S/O M. VIJAYBHASKAR
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
M. MOHANKUMAR.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
7/41
14. KUM. MANISHA
D/O VIJAYA BHASKAR
AGED ABOUT 15 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
M. VIJAYA BHASKAR
RESPONDENTS NO.1 TO 14
R/AT PLOT NO.207
RANGASWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE -560 037.
15. SRI. V.K.R.S.V. PRASAD RAO
S/O LATE PEDDAVENKATESHWARALU
AGED ABOUT 56 YEARS
R/AT NO.2/19/2
PANCHAJANYA CONSTRUCTION PVT. LTD.,
FOREST OFFICE ROAD,
MADHADEVANAGAR, KAKINDA
ANDHRA PRADESH-533 033.
16. M/S SHREE PANCHAJANYA
INFRASTRUCTURE PVT LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVENAGAR, KAKINDA
ANDHRA PRADESH-533 033
REP. BY ITS MANAGING DIRECTOR
SRI. V.K.R.S.V. PRASAD RAO.
17. SRI. V.K.R.S.V. PRASAD RAO
MANAGING DIRECTOR
M/S SHREE PANCHAJANAYA
INFRASTRUCTUTRE PVT. LTD.,
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVENAGAR, KAKINDA
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
8/41
ANDHRA PRADESH-533 033.
18. SRI. K.N.MOHAN REDDY
S/O SRI. D. NARAYANA REDDY
AGED ABOUT 43 YEARS
R/AT GULMAHAR FARM
VINAYAKNAGAR, GUNJUR
MAIN ROAD, VARTHUR
BENGALURU-560 087.
19. SRI. M. SHANKARAPPA
S/O LATE MUNIAPPA
AGED ABOUT 44 HYEARS
R/AT CHOWDESHWARI TEMPLE STREET
VARTHUR, BENGALURU-560 087.
...RESPONDENTS
(BY SRI. M. NARAYANA REDDY, ADVOCATE
FOR R-1, R-8 TO R 10 - ABSENT;
SRI. LAKSHMINARAYANA. G, ADVOCATE
FOR R-7 - ABSENT;
SRI. K.V. RAMESH KUMAR, ADVOCATE
FOR R 2, R 4 TO R 6, R 11 & R 12 - ABSENT;
R3, R9, R10, R13 & R14 ARE MINORS;
SRI. M.S. RAJENDRA, FOR SMT. MAYA HOLLA,
ADVOCATE FOR R 15 TO R 17;
NOTICE TO R 18 & R 19 ARE D/W
V/O DATED 21.08.2017)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED ON IA NO.16 IN O.S. NO.26719 OF
2013 DATED: 27.07.2017 ON THE FILE OF THE XXVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
IN REJECTING THE APPLICATION FILED BY THE PETITIONER
PLAINTIFF TO EXAMINE THE WITNESSES PURSUANT TO THE
RECASTING AND FRAMING OF ADDITIONAL ISSUE [PRODUCED
AS ANNEXURE-A]
IN W.P.NO.36036/2017:
BETWEEN:
SRI. DIWAKAR. K
S/O KRISHNAPPA
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
9/41
AGED ABOUT 36 YEARS
R/A KATRIGUPPA VILLAGE
KUNGUR POST, SARJAPURA HOBLI
ANEKAL TALUK, BENGALURU-562 106.
...PETITIONER
(BY SRI. SUBRAMANYA. R, ADVOCATE)
AND:
1. SMT. CHINNAMMA
W/O LATE MALEYAPPA
AGED 71 YEARS.
2. SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA
AGED ABOUT 53 YEARS.
3. MASTER VINAY
S/O M. MOHAN KUMAR
AGED ABOUT 16 YEARS.
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
4. SRI. M. SRINIVAS
S/O LATE MALEYAPPA
AGED ABOUT 51 YEARS.
5. SMT. K. SHEELA
D/O M SRINIVAS
AGED ABOUT 29 YEARS.
6. MS. SHILPA
D/O M. SRINIVAS
AGED ABOUT 27 YEARS.
7. SRI. SHIVAKUMAR
S/O SRI. M. SRINIVAS
AGED ABOUT 25 YEARS.
8. SRI. M. VENKATESH
S/O LATE MALEYAPPA
AGED ABOUT 45 YEARS.
9. KUM. CHANDRIKA
D/O M. VENKATESH
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
10/41
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
10. KUM. RACHANA
D/O VENKATESH
AGED ABOUT 13 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
11. MS. SHANTAKUMARI
D/O LATE MAYELAPPA
W/O SRI. PRAKASH
AGED ABOUT 43 YEARS.
12. SRI. M. VIJAYABHASKAR
S/O LATE MAYELAPPA
AGED ABOUT 41 YEARS.
13. SRI. VIVEK
S/O M. VIJAYBHASKAR
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
14. KUM. MANISHA
D/O VIJAYA BHASKAR
AGED ABOUT 15 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
RESPONDENTS NO.1 TO 14
R/A PLOT NO.207
RANGASWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE -560 037.
15. SRI. V.K.R.S.V. PRASAD RAO
S/O LATE PEDDAVENKATESHWARALU
AGED ABOUT 56 YEARS
R/AT NO.2/19/2
PANCHAJANYA CONSTRUCTION PVT. LTD.,
FOREST OFFICE ROAD,
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
11/41
MADHADEVANAGAR, KAKINDA
ANDHRA PRADESH-533 033.
16. M/S SHREE PANCHAJANYA
INFRASTRUCTURE PVT LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVENAGAR
KAKINDA
ANDHRA PRADESH-533 033
REP. BY ITS MANAGING DIRECTOR
SRI. V.K.R.S.V. PRASAD RAO.
17. SRI. V.K.R.S.V. PRASAD RAO
MANAGING DIRECTOR
M/S SHREE PANCHAJANAYA
INFRASTRUCTUTRE PVT. LTD.,
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVENAGAR
KAKINDA
ANDHRA PRADESH-533 033.
18. SRI. K.N.MOHAN REDDY
S/O SRI. D. NARAYANA REDDY
R/AT GULMAHAR FARM
VINAYAKNAGAR, GUNJUR
MAIN ROAD, VARTHUR
BENGALURU-560 087.
19. SRI. M. SHANKARAPPA
S/O LATE MUNIAPPA
AGED ABOUT 44 HYEARS
R/AT CHOWDESHWARI TEMPLE STREET
VARTHUR
BENGALURU-560 087.
...RESPONDENTS
(BY SRI. M.S. RAJENDRA, FOR
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
12/41
SMT. MAYA HOLLA, ADVOCATE FOR C/R 16
SRI. D. MAJUNATH, ADVOCATE FOR R-18)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED IN I.A.NO.17 O.S.26719/2013
DATED 27.07.2017 ON THE FILE OF THE XXVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU AT
ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION
NO.17.
IN W.P.NO.38602/2017:
BETWEEN:
SRI. K.N. MOHAN REDDY
S/O SRI. D. NARAYANA REDDY
AGED ABOUT 42 YEARS
R/AT GULMOHAR FARM
VINAYAKNAGAR, GUNJUR MAIN ROAD
VRTHUR, BENGALURU-562 106.
...PETITIONER
(BY SRI. D. MANJUNATH, ADVOCATE)
AND:
1. SMT. CHINNAMMA
W/O LATE MALEYAPPA
AGED 71 YEARS.
2. SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA
AGED ABOUT 53 YEARS.
3. MASTER VINAY
S/O M. MOHAN KUMAR
AGED ABOUT 16 YEARS.
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
4. SRI. M. SRINIVAS
S/O LATE MALEYAPPA
AGED ABOUT 51 YEARS.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
13/41
5. SMT. K. SHEELA
D/O M. SRINIVAS
AGED ABOUT 29 YEARS.
6. MS. SHILPA
D/O M. SRINIVAS
AGED ABOUT 27 YEARS.
7. SRI. SHIVAKUMAR
S/O SRI. M. SRINIVAS
AGED ABOUT 25 YEARS.
8. SRI. M. VENKATESH
S/O LATE MALEYAPPA
AGED ABOUT 45 YEARS.
9. KUM. CHANDRIKA
D/O M. VENKATESH
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
10. KUM. RACHANA
D/O VENKATESH
AGED ABOUT 13 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
11. MS. SHANTAKUMARI
D/O LATE MAYELAPPA
W/O SRI. PRAKASH
AGED ABOUT 43 YEARS.
12. SRI. M. VIJAYABHASKAR
S/O LATE MAYELAPPA
AGED ABOUT 41 YEARS.
13. SRI. VIVEK
S/O M. VIJAYBHASKAR
AGED ABOUT 17 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
14/41
14. KUM. MANISHA
D/O VIJAYA BHASKAR
AGED ABOUT 15 YEARS
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN.
RESPONDENTS NO.1 TO 14
R/A PLOT NO.207
RANGASWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE -560 037.
15. SRI. V.K.R.S.V. PRASAD RAO
S/O LATE PEDDAVENKATESHWARALU
AGED ABOUT 56 YEARS
R/AT NO.2/19/2
PANCHAJANYA CONSTRUCTION PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVANAGAR, KAKINDA
ANDHRA PRADESH-533 033.
16. M/S SHREE PANCHAJANYA
INFRASTRUCTURE PVT LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
MADHADEVENAGAR, KAKINDA
ANDHRA PRADESH-533 033
REP. BY ITS MANAGING DIRECTOR
SRI. V.K.R.S.V. PRASAD RAO.
17. SRI. V.K.R.S.V. PRASAD RAO
MANAGING DIRECTOR
M/S SHREE PANCHAJANAYA
INFRASTRUCTUTRE PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS PVT. LTD.,
FOREST OFFICE ROAD
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
15/41
MADHADEVENAGAR
KAKINDA, ANDHRA PRADESH-533 033.
18. SRI. M. SHANKARAPPA
S/O LATE MUNIAPPA
AGED ABOUT 44 YEARS
R/AT CHOWDESHWARI TEMPLE STREET
VARTHUR, BENGALURU-560 087.
19. SRI. DIWAKAR. K
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
R/A KATRIGUPPA VILLAGE
KUNGUR POST, SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU-562 106.
...RESPONDENTS
(BY SRI. G. LAKSHMINARAYAN, ADV.,
FOR R-1 TO R-7 AND R-11 TO R-14-ABSENT;
SRI. M. NARAYANA REDDY, ADVOCATE
FOR R-8 TO R-10-ABSENT;
SRI. M.S. RAJENDRA FOR
SMT. MAYA HOLLA, ADV., FOR R-15 TO R-17;
SRI. R. SUBRAMANYA, ADV FOR R 19;
NOTICE TO R-18 IS D/W V/O DATED 28.08.2017)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED ON I.A.XXXII FILED BY THE
PETITIONER/18TH DEFENDANT UNDER ORDER VIII RULE 1-A(3)
R/W SECTION 151 OF CPC IN O.S.26719/2013 DATED
21.08.2017 ON THE FILE OF THE 28TH ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE VIDE ANNEXURE-A AND
CONSEQUENTLY ALLOW THE APPLICATION NO.XXXII.
IN W.P.NOs.38074/2017 & 38657-38662/2017:
BETWEEN:
1. SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA
AGED ABOUT 54 YEARS
OCCUPATION: AGRICULTURIST.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
16/41
2. SRI. MASTER. VINAY
S/O SRI. M. MOHAN KUMAR
AGED 17 YEARS
(SINCE MINOR REPRESENTED
BY HIS FATHER & NATURAL GUARDIAN)
SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA.
3. SRI. M. SRINIVAS
S/O LATE MALEYAPPA
AGE 52 YEARS
OCCUPATION: AGRICULTURE.
4. SMT. K. SHEELA
D/O SRI. M. SRINIVAS
OCCUPATION: HOUSEHOLD WORK.
5. MS. SHILPA
D/O SRI. M. SRINIVAS
AGE 28 YEARS
OCCUPATION: HOUSEHOLD WORK.
6. MS. M. SHANTHA KUMARI
D/O LATE MALEYAPPA
W/O SRI. PRAKASH
AGED 42 YEARS
OCCUPATION: HOUSE HOLD WORK.
7. SRI. M. VIJAY BHASKAR
S/O LATE MALEYAPPA
AGED ABOUT 42 YEARS
OCCUPATION: AGRICULTURE.
8. SRI. VIVEK
S/O SRI. M. VIJAY BHASKAR
AGED 17 YEARS
(SINCE MINOR REPRESENTED BY
HIS FATHER & NATURAL GUARDIAN)
9. KUM. MANISHA
D/O SRI. M. VIJAY BHASKAR
(SINCE MINOR REPRESENTED
BY HER FATHER & NATURAL GUARDIAN)
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
17/41
10. SRI. S. SHIVAKUMAR
S/O SRI. M. SRINIVAS
AGED ABOUT 26 YEARS
OCCUPATION: AGRICULTURE.
...PETITIONERS
(BY SRI. JAGADISH PRASAD.C.K, ADVOCATE)
AND:
1. K. DIWAKAR
S/O LATE KRISHNAPPA
AGED ABOUT 36 YEARS
RESIDING AT NARASAPURA VILLAGE
MALUR ROAD, KASABA HOBLI
MALUR TALUK
KOLAR DISTRICT.
2. SMT. CHINAMMA
W/O LATE MALEYAPPA
AGED ABOUT 72 YEARS
OCCUPLATION: HOUSE HOLD WORK.
3. SRI. M. VENKATESH
S/O LATE MALEYAPPA
AGED ABOUT 46 YEARS
OCCUPLATION: AGRICULTURE.
4. KUM. CHANDRIKA
D/O M. VENKATESH
(SINCE MINOR REPRESENTED BY HER
FATHER AND NATURAL GUARDIAN)
5. KUM. RACHANA
D/O M. VENKATESH
(SINCE MINOR REPRESENTED BY HER
FATHER AND NATURAL GUARDIAN)
ALL ARE RESIDING AT
PLOT NO.207, RANGSWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE-560 037.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
18/41
6. SRI. V.K.R.S.V.PRASAD RAO
S/O LATE PEDDA VENKATESHWARA
AGED ABOUT 60 YEARS
R/A 2-19-2
PANCHAJANYA CONSTRUCTION CO.LTD.,
FOREST OFFICE ROAD
MADHAVNAGAR
KAKINADA
ANDRA PRADESH-533 033.
7. M/S SRI. PANCHAJANYA
INFRASTRUCTURE PVT LTD
(A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT)
HAVING ITS OFFICE AT BEARING NO.2/19/3
PANCHAJANYA CONSTRUCTION CO.LTD.,
FOREST OFFICE ROAD
MADHAVNAGAR, KAKINADA
ANDRA PRADESH-533 033
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI. V.K.R.S.V. PRASAD RAO.
8. SRI. V.K.R.S.V. PRASAD RAO
MANAGING DIRECTOR
M/S SRI. PANCHAJANYA
INFRASTRUCTURE PVT LTD.,
(A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT)
HAVING ITS OFFICE AT BEARING NO.2/19/3
PANCHAJANYA CONSTRUCTION CO.LTD.,
FOREST OFFICE ROAD
MADHAVNAGAR, KAKINADA
ANDRA PRADESH-533 033.
9. SRI. K.N. MOHAN REDDY
S/O SRI. D. NARAYANA REDDY
AGED ABOUT 42 YEARS
OCCUPATION: BUSINESS
RESIDENT OF KATHRIGUPPE VILLAGE
KAGUR POST, ANEKAL TALUK
BANGALORE-562 125.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
19/41
NOW RESIDING AT GULMAHAR FARM
VINAYAKANAGAR
VARTHUR, GUNJUR MAIN ROAD
VARTHUR, BANGALORE-560 087.
10. SRI. M. SHANKARAPPA
S/O LATE MUNIAPPA
OCCUPATION: BUSINESS
RESIDENT OF CHOWDESHWARI
TEMPLE STREET, VARTHUR
BANGALORE-560 087.
...RESPONDENTS
(BY SRI. M.NARAYANA REDDY, ADVOCATE
FOR RESPONDENTS NO.3 TO 5-ABSENT;
SRI. R.SUBRAMANYA, ADVOCATE FOR
RESPONDENT NO.4;
SRI. M.S. RAJENDRA, FOR SMT. MAYA HOLLA,
ADVOCATE FOR C/R 17)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED ON I.AS 20 TO 26 FILED BY THEM
UNDER SECTION 151 OF CPC 1908 IN CASE O.S.26719/13
HAVING DISMISSED BY THE IMPUGNED ORDER VIDE
ANNEXURE-A ORDER DATED 11.08.2017 BY 28TH ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND ALLOW
I.AS. 20 TO 26 FILED BY THEM UNDER SECTION 151 CPC 1908
IN ABOVE CASE HAVING DISMISSED BY THE ORDER DATED
11.08.2017 BY THE 28TH ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters
Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others
20/41
ORDER
Mr. Subramanya R. Adv., for Petitioner Mr. G.Lakshminarayan, Adv., for Respondents No.1-7 & Respondents No.11-14 Mr.M.Narayana Reddy, Adv., for Respondents No.8-10. Mr. M.S.Rajendra, for Smt.Maya Holla, Advs., for Respondents No.15-17 Mr.D. Manjunatha, Adv., for Respondent No.18 This batch of these connected writ petitions is disposed of by this common order.
In W.P.No.33482/2017:
1. W.P.No.33482/2017 has been filed by the plaintiff - Sri Diwakar K., son of Krishnappa against Smt.Chinnamma and others, Respondent Nos.1 to 14 being landlords, respondent Nos.15 to 17 being subsequent purchasers, Respondent No.18 K.N.Mohan Reddy being a Power of Attorney Holder and Respondent No.19 - M.Shankarappa being another Power of Attorney Holder, who is not represented before this Court.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 21/41
2. The present writ petition has been filed aggrieved by the order dated 06.07.2017 passed by the learned Trial Court directing the Plaintiff to pay the deficit stamp duty on the document Ex.P.2 i.e., General Power of Attorney executed by Respondent No.1- Smt.Chinnamma in favour of K.N.Mohan Reddy - Respondent No.18 to the extent of Rs.8,43,700/- on the basis of the market value of the immovable property transferred by the said power of attorney holder - Sri K.M.Mohan Reddy executed in favour of the plaintiff - Sri Diwakar K. on 03.01.2005. The suit for specific performance has been filed by the petitioner - Diwakar K., namely, O.S.No.26719/2013.
3. The proceedings in this suit have already been subjected to litigation before this Court twice over, firstly in MFA No.6721/2014 C/w. MFA No.6723/2014 by M/s. Sri Panchajanya Infrastructure Pvt. Ltd. - Respondent No.16 in the present writ petition, which Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 22/41 filed the said MFA against the temporary injunction granted by the learned trial Court. But the learned Single Judge of this Court instead of interfering with the said interim order of the Trial Court directed the Trial Court to conclude the trial as expeditiously as possible and in any event on or before 31.08.2016.
4. Another Writ Petition No.10528/2017 came to be filed by the petitioner/plaintiff - Sri Diwakar K. himself against the dismissal of his miscellaneous application for restoration of suit which was dismissed for default on 30.06.2016 and the miscellaneous application under Order 9 Rule 4 of Code of Civil Procedure came to be rejected by the trial Court on 29.8.2016. Setting aside that order, the learned single Judge of this Court on 18.04.2017 allowed the writ petition and directed that the trial to be concluded in any case on or before 30.08.2017 by pronouncing Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 23/41 judgment and a time-frame was set for leading of the evidence on both sides.
5. Despite these directions, the trial of suit somehow could not be concluded on account of several Interlocutory Applications filed by different parties to the suit, on which orders were passed by the Trial Judge, which are now subject matter of this writ petition filed under Article 227 of the Constitution of India and all of which are being disposed of separately by this common order.
6. So far as present Writ Petition No.33482/2017 (Sri Diwakar K., vs. Smt. Chinnamma and Others) is concerned, the learned Trial Court has directed the Agreement Holder - the Plaintiff - Sri Diwakar K., to pay deficit stamp duty on the document - Ex.P.2 - General Power of Attorney executed in favour of Respondent No.18 - K.N.Mohan Reddy. The said order appears to be passed by the Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 24/41 Trial Court in conformity with the statutory provisions of Section 30 of the Karnataka Stamp Act, 1957, which clearly enjoins obligation to pay stamp duty on the principal, who executes the Power of Attorney. Even though such question of deficit stamp duty was raised at this belated stage by the Defendants, although such an issue if at all was to be raised, the same could have been raised only at the initial stage, when the Written Statement was filed by the Defendants, so that the proper issue could be framed. But even assuming for argument sake that the stamp duty was deficit in any case, the present plaintiff, who is neither the executant of the General Power of Attorney nor the Power of Attorney Holder himself, cannot be called upon to pay deficit stamp duty. Since these statutory provisions of law have been ignored by the learned Trial Court, the impugned order dated 06.07.2017 passed by the Trial Court cannot be sustained. The same is liable to be set aside and the same is accordingly set aside. Writ Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 25/41 Petition No.33482/2017 is accordingly allowed. No order as to costs.
IN W.P.No.36035/2017:
Mr. Subramanya R. Adv., for Petitioner Mr.M.Narayana Reddy, Adv., for Respondents No.1, 8-10 (absent) Mr.Lakshminarayan.G, Adv., for Respondent No.7 (absent) Mr. K.V.ramesh Kumar, Adv., for Respondents No.2, 4-6, 11 & 12 (absent) Mr. M.S.Rajendra, Adv., for Smt.Maya Holla, Adv., for Respondents No.15-17
7. W.P.No.36035/2017 has been filed by the plaintiff/petitioner - Sri Diwakar K, aggrieved by the order dated 27.07.2017 passed on IA No.16 rejecting the prayer of the Plaintiff to lead additional evidence in view of the issues re-framed by the Trial Court on 27.07.2017. The observation made by the Trial Court in the impugned order in this regard is quoted below for ready reference:
"5. The Plaintiff has stated that issue No.1 was re-casted casting the burden on him to prove the said issue and therefore, he wants to Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 26/41 examine the persons shown in the application on his behalf.
6. The issue No.1 relates to the proof of General Power of Attorney dtd: 14.6.2008 stated to have been executed by Defendant No.1 in favour of Defendant No.18. The Plaintiff has already examined one of the attesting witnesses to the said document. The said persons are not the attesting witnesses to the said documents. Therefore, the examination of the said persons will be of no help to prove the said documents. Therefore, the Plaintiff cannot be permitted to examine the said witnesses."
8. Having heard the learned counsel for the parties, this Court is satisfied that the learned Trial Court has erred in not allowing the plaintiff to lead additional evidence in view of the re-framing of the issues, when Original Issue No.1 was deleted by the learned Trial Court merely by observing that such observation will be of no help to prove the averment and the said document in accordance with law. It is for the Plaintiff to prove the averment and the documents in Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 27/41 accordance with law and therefore, the plaintiff, in these circumstances, ought to be allowed to lead additional evidence.
9. Accordingly, W.P.No.3035/2017 is allowed and the order dated 27.07.2017 in this regard rejecting IA No.16 filed by the plaintiff/petitioner is also set aside.
IN W.P.No.36036/2017:
Mr. Subramanya R. Adv., for Petitioner Mr. M.S.Rajendra, Adv., for Smt.Maya Holla, Adv., For caveator/Respondent No.16 Mr.D. Manjunatha, Adv., for Respondent No.18
10. W.P.No.36036/2017 has been filed by the plaintiff/petitioner - Diwakar K., aggrieved by the order dated 27.07.2017 rejecting IA.17 filed by the plaintiff, by which the plaintiff had sought to produce certain additional documents on record and mark the same in evidence.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 28/41
11. The reasons assigned by the Trial Court for rejecting the said application are quoted below for ready reference:
"8. The Plaintiff wants to produce the RTCs, the revenue records and the conversion order and the application given by the Defendant No.1 to the revenue authorities. These documents are in respect of the Plaint Schedule Property and therefore, the said documents have to be received and the Plaintiff must be permitted to mark the same.
9. The 5th in the list is USB Pen Drive stated to be containing the recording of the conversation between the Defendant Nos.1 to 15 with the 18th Defendant. This conversation cannot be admitted in `evidence and the mere marking of the USB Pen Drive will not be of any help. First, it has to be found out as to what is in the conversation recorded in the said USB Pen Drive. Next it has to be proved that the voice found in the said conversation is of Defendant Nos.1 to 15. Further, it has to be also proved that the same is not tampered. The pen drive produced is stated to be containing the voice recording. The device in which the said conversation was recorded is not Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 29/41 produced. Therefore, this material would be very weak form of evidence and it cannot have much evidentiary value to prove the dispute between the parties. If this evidence is taken on record, it would be a waste of judicial time of the Court. Because, the admission of this evidence would lead to unnecessary cross-examination on the said point and ultimately the said piece of evidence would be of no much value for the decision of this case. Therefore, this material should not be admitted in evidence.
10. The document Nos.6 to 8 are the bank statements of the Defendant No.18. The Defendant No.18 is a party to this suit and the competent person to speak about these documents. The Plaintiff has stated that the said documents are handed over by the 18th Defendant to him. The Plaintiff can mark these documents i.e., at Sl.No.6 to 10 through the 18th Defendant as he would be a competent person to speak about the said documents. Therefore, the permission to the Plaintiff to produce the documents at Sl.No.6 to 10 has to be rejected.
11. Hence this Court proceeds to pass the following:-
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 30/41 ORDER The applications filed by the Plaintiff in IA.No.14, IA.No.15 and IA.No.17 are disposed of as follows with no order as to costs.
The documents produced by the Plaintiff along with IA.No.17 at Sl.No.1 to 4 are received on file.
The Pen Drive at Sl.No.5 and documents at Sl.No.6 to 10 are not received on file and the same are ordered to be returned to the Plaintiff."
12. Having heard the learned counsel for the parties, this Court is satisfied that the said order cannot be validly and successfully challenged by the plaintiff/petitioner to enlarge the scope of the suit and therefore, the learned Trial Court is justified in passing the impugned order.
This writ petition is accordingly dismissed.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 31/41 IN W.P.No.38602/2017:
Mr. D.Manjunath, Adv., for Petitioner-Defendant No.18 Mr. G.Lakshminarayan, Adv., for Respondent No.7 & Respondents No.11-14 Mr. M.S.Rajendra, Adv., for Smt.Maya Holla, Adv., for Respondents No.15-17 Mr. R.Subramanya, Adv., for Respondent No.18
13. The petitioner - Sri K.N.Mohan Reddy, the Power of Attorney Holder in the suit has filed the present writ petition in this Court challenging the order dated 21.08.2017 rejecting the application filed by the petitioner seeking to produce certain electronic devices like SAMSUNG model cell phone and pen drive and the Certificates under Section 65(B) of the Evidence Act relating to the said material.
14. The Trial Court has rejected the said IA.32 giving the following reasons:
"5. This suit is filed by the Plaintiffs for specific performance of the agreement of sale and for declaration that the Sale Deed dated:15.10.2013 executed by the Defendant Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 32/41 Nos.1 to 14 in favour of the Defendant No.16 is not binding on the Plaintiffs.
6. The Defendant No.18 wants to produce the original SAMSUNG Model Cell Phone and the PEN Drive containing the recorded conversation in the SAMSUNG Mobile and the certificate under Section 65(B) of the Evidence Act relating to the said materials.
7. The learned counsel for the Defendant No.18 relied on the ruling reported in 2014 (1) SCC 473 in the case of Anbar P.B V/s P.K. Basheer and Others, wherein it is hled that the genuineness, veracity or reliability of the evidence can be seen by the Court only after the stage of relevancy and admissibility. Therefore, the learned counsel for the Defendant No.18 submitted that these documents have to be admitted in evidence and its genuiness, vercity or reliability has to be decided later. This submission of the learned counsel for the Defendant No.18 is correct. As held by the Hon'ble Supreme Court the relevancy and admissibility and relevance Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 33/41 of the documents in evidence has to be considered before admitting the said documents in evidence. The Order 13 Rule 3 CPC also gives power to the Court to reject the irrelevant or inadmissible documents. The said rule states that the Court at any stage can reject any documents or otherwise may record the grounds of such rejection. Therefore, just because the document is admissible in evidence it cannot be taken on record unless the same is relevant for the purpose of the decision of the case.
8. This Court while considering the IA.No.18 filed by the Defendant No.18 has held that the said conversation is not admissible in evidence. The prayer of the Defendant No.18 to file the additional written statement pleading the same was rejected. The conversation stated to be containing in the said documents cannot be admitted in evidence. First, it has to be shown as to what is the said conversation and it has to be shown as to what is the said conversation and it has to be proved that the voice even in Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 34/41 the said conversation is of Defendant No.15 and further it has to be proved that the same is not admissible. Therefore, the said material would be the very weak form of evidence. The dispute between the parties is regarding the genuineness of the signatures found in the documents. The conversation state to be containing in the above device will be a very weak form of evidence to prove this fact. This Court is of the opinion that the execution of the document cannot be proved by production of the device stated to be containing the conversation between the parties. It is not the case of the Defendant No.18 that the signatures of the parties were obtained at different places and the agreement was entered into be discussing and finalizing the terms over the telephone. It is not their case that the parties have signed the document at different places. Therefore, this Court is of the opinion that the said evidence is irrelevant for the purpose of this case and the production of these materials will be of no help for the decision of this case."
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 35/41
15. Having heard the learned counsel for the parties, this Court is satisfied that the reasons assigned by the Trial Court in the impugned order appears to be cogent and justified and therefore, no interference is called for in the present writ petition by this Court. The writ petition is devoid of merit and is liable to be dismissed and the same is dismissed.
IN W.P.NOs.38074/2017 & 38657-38662/2017:
Mr.Jagadish Prasad.C.K, Adv., for Petitioner Mr.M.Narayana Reddy, Adv., for Respondents No.3 to 5 (absent) Mr.R.Subramanaya, Adv., for Respondent No.4 Mr.M.S.Rajendra, Adv., for Smt.Maya Holla, Adv., for Caveator/Respondent No.17
16. Petitioners - A. Mohan Kumar and 9 others who are the Defendant-Vendors in the suit for specific performance namely, O.S.No.26279/2013 filed by the plaintiff -Diwakar K., are aggrieved by the order dated 11.08.2017 passed by the Trial Court rejecting their Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 36/41 applications in IA Nos.20 to 26 seeking to file additional written statement in the present suit.
17. The reasons assigned by the learned Trial Court for rejecting the said applications are quoted below for ready reference:
"7. This suit is filed by the Plaintiffs for specific performance of the agreement of sale and for declaration that the Sale Deed dtd:15.10.2013 executed by the Defendant No.s1 to 14 in favour of the Defendant No.16 is not binding on the Plaintiffs.
8. The Defendant Nos.1 to 14 had appeared through the same counsel and had filed their common written statement denying the case of the Plaintiff and denying the documents relied by the Plaintiff and have admitted that they have executed the Sale Deed in favour of the Defendant Nos.15 to 17.
9. In the written statement filed along with these applications they have admitted the claim of the Plaintiff and denied the contentions taken by them in their earlier written statement. They have stated that the Defendant No.8 has Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 37/41 forced them to sign the same without verifying the contents of the written statement.
10. The Defendant No.1 is the mother and the Defendant Nos.2, 4, 8, 11 and 12 are the children of Defendant No.1. The perusal of the written statement already filed, it is seen that the written statement is signed by all the Defendants. The same is verified by the Defendant No.8 alone and the verifying affidavit is filed by Defendant No.8.
11. The reading of Order 6 Rule 15 CPC shows that the verification of the pleadings can be done by one of the parties to the pleading and the person verifying the pleading has to also furnish the affidavit in support of the pleading. Therefore, it is not necessary that when a common written statement is filed that has to be verified by all the signatories of the written statement and all of them have to file the affidavit verifying the pleadings. Therefore, the written statement already filed is in order and the same is in conformity with the rules of pleadings.
12. The written statement was filed in the year 2014. The Plaintiff has closed the evidence and the Defendant No.8 has examined Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 38/41 himself as DW.1 and is cross-examined in full by the Plaintiff and Defendant No.18. The Power of Attorney holder of the Defendant No.15 is also examined as DW.2 and has examined as full. This case was posted day to day in view of the direction of the Hon'ble High Court of Karnataka to dispose of this matter within 30.8.2017.
13. The records disclose that the Defendant Nos.1 to 14 have been appearing through the same counsel in all the proceedings relating to this property. At this advanced stage of proceedings, the Defendants cannot be permitted to make the inconsistent pleading. It would prejudice the rights of the Defendant Nos.15 to 17. No prejudice would be caused to them if the written statement filed by them is not taken on file as it would not affect their rights as they do not claim any right over the Plaint Schedule Property at present.
14. The reason that the Defendant No.8 has forced to sign the pleadings and were prevented from coming to the Court cannot be believed without any supporting Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 39/41 materials. They have not produced any documents to show that they have taken any other action against the Defendant No.8 for forcibly obtaining their signatures. They are not uneducated. It is not explained as to how they suddenly gathered the courage to come together and contacted the counsel and file the written statement. Therefore, there are no grounds to allow these applications.
15. This Court is of the opinion that these applications are not filed with the bonafide intention and to uphold the cause of justice. The filing of these applications has caused delay in the disposal of the suit. Therefore, the said applications have to be disposed with costs of Rs.1,000/- payable by the respective parties to Defendant Nos.15 to 17 and Defendant Nos.1, 8 to 10. Hence, the following:
ORDER The IA.No.XX to IA.No.XXVI filed under Section 151 CPC by Defendant Nos.2, 4, 5, 6 11, 12 and Defendant No.7 respectively are Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 40/41 dismissed with costs of Rs.1,000/- payable to Defendant Nos.15 to 17 and Defendant Nos.1, 8 to 10.
The written statement filed by the Defendant Nos.2 4, 5, 6, 11 and 12 and Defendant No.7 are not taken on file.
The each of the Defendant Nos.2, 4, 6, 7, 11 and 12 and Defendant No.7 shall pay Rs.1,000/- each to Defendant Nos.15 to 17 collectively and to Defendant Nos.1, 8 to 10 collectively towards the costs."
18. Having heard the learned counsel for the parties, this Court is satisfied that the impugned order passed by the Trial Court is just and proper and assigns cogent reasons for rejecting the said applications filed by the Defendants to file additional written statements at a belated stage. The said order does not call for interference by this Court under Article 227 of the Constitution of India. The writ petitions are liable to be dismissed and are accordingly dismissed.
Date of Order 09-08-2018, W.P.No.33482/2017 & Connected matters Sri. Diwakar.K & Others Vs. Smt. Chinnamma & Others 41/41
19. With the aforesaid disposal of all the connected writ petitions arising from the same suit namely, O.S.No.26719/2013, it is necessary to direct the learned Trial Court to expedite the trial and conclude the same positively on or before 31.12.2018. If any further Interlocutory Application is filed by any of the parties in the suit and it is found to be frivolous and liable to be rejected by the Trial Court, the Trial Court shall reject the same by imposing exemplary costs of Rs.50,000/- on the applicant upon such rejection of the application, to be deposited with the District Legal Services Authority.
Sd/-
JUDGE SA Sl.No.14