Karnataka High Court
Sri K M Rajendran vs Late Gulshan Kumar Sodhi on 21 June, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.VEERAPPA
W.P.No.22766/2015 (GM-CPC)
BETWEEN
SRI. K.M.RAJENDRAN
S/O LATE M. KRISHNA MURTHY
AGED ABOUT 55 YEARS
RESIDING AT NO.3, 1ST MAIN
C.K.C. GARDEN
BANGALORE-560027 ... PETITIONER
(BY SRI. JEEVAN.K-ADV)
AND
1. LATE GULSHAN KUMAR SODHI
BY HIS LR
SMT. SUMAN SODHI
W/O LATE GULSHAN KUMAR SODHI
AGED ABOUT 47 YEARS
R/AT NO.51-5, MODEL TOWN
HISAR-125001
HARYANA STATE
2. LATE KAMALA RABNI.K. SODHI (DIED)
3. SRI.KAILASH CHANDA SODHI
S/O LATE KASTURILAL NIHALCHAND SODHI
AGED ABOUT 75 YEARS
RESIDING AT NO.302
PROMENADE PLACE
PROMENADE ROAD
BANGALORE-560062
4. SMT. LATHA SALHOTRA
W/O SRI. NADKISHORE SALHOTRA
AGED ABOUT 70 YEARS
RESIDING AT GROUND FLOOR
SHEETAL PARK BUILDING
2
CHANDAVARKAR LANE
BORIVAL (WEST)
MUMBAI-92
5. SMT. SHAMA DHAWAN
W/O SRI. LALPAT DHAWAN
AGED ABOUT 66 YEARS
RESIDING AT NO.307
3RD FLOOR, ABHINAV
CO-OP. SOCIETY BUILDING
BHARUCHA ROAD, DALISAR
DISTRICT THANA, MUMBAI
6. NARENDRA SODHI
S/O LATE KASTURILAL NIHALCHAND SODHI
AGED ABOUT 64 YEARS
RESIDING AT NO.301
3RD FLOOR, AKIL TOWER RATANNAGAR
DALISAR EAST, DISTRICT-THANA
MUMBAI
7. JAGADISHKUMAR SODHI
S/O LATE KASTURILAL NIHALCHAND SODHI
AGED ABOUT 60 YEARS
RESIDING AT NO.103/5
HARISMRUTHI 8TH ROAD
DOULATNAGAR, BORIVALI (EAST)
MUMBAI-66
8. SMT. HARSHA KANOTRA
W/O ASHWINI KANOTRA
AGED ABOUT 50 YEARS
R/AT ASHOK VIHAR
NEW DELHI
C/O LATE KAMALA RANI SODHI
NO.103/5, HARISHMRUTHI
8TH ROAD, DOULATNAGAR
BORIVALI-(EAST), MUMBAI-66
9. THE SPECIAL LAND ACQUISITION
OFFICER, PODIUM BLOCK
BANGALORE-560001 ... RESPONDENTS
(BY SRI. KAILASH CHANDA SODHI (PARTY-IN-PERSON) AS R2)
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THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER AS CONTAINED IN ANNEXURE-N,
DATED:09.02.2015 PASSED ON I.A.NO.22 IN O.S.
NO.4910/2003, ON THE FILE OF THE LEARNED I
ADDITIONAL CITY CIVIL & SESSION JUDGE, BANGALORE
CITY (CH NO.2), ETC.
THIS WP COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The 8th defendant has filed the present writ petition against the order dated 9.2.2015 on I.A.22 made in O.S.No.4910/2003 rejecting the application filed by him under Section 114(b) of the CPC to review the order passed on I.A.20 dated 2.2.2013.
The brief facts of the case are as under :
2. The Respondent No.1 herein filed the suit for partition and separate possession in respect of the suit schedule properties morefully described in the schedule contending that the plaintiff and defendants are partners of a partnership firm named as Sodhi and Company which was headed by late Kasturulal Nihalchand Sodhi as the Managing Director who died several years back. The partnership firm became defunct after his death. Out of 4 the partnership funds, schedule properties were acquired by the firm, out of which certain items were in the name of the first respondent/defendant. The plaintiff started living at Bengaluru to look after the properties at Bengaluru but the joint status continued. There was no partition by metes and bounds among them. Therefore, he is entitled to share. Only defendant No.2 filed written statement, denied the plaint averments and contended that the suit filed by the plaintiff for partition and separate possession is not maintainable and property not belong to the partnership firm. Therefore, he sought for dismissal of the suit.
3. The 8th defendant filed the application-I.A.20 under Order 8 Rule 9 read with Section 151 of CPC to receive the written statement/rejoinder statement by condoning the delay. The trial Court considering the averments made in the application by the order dated
2.2.2013 recorded a finding that the 8th respondent has not made out any ground to condone the delay caused in filing the written statement along with the counter claim 5 and rejoinder. Accordingly, the application came to be rejected on 2.2.2013. Thereafter the present petitioner, the 8th defendant, filed I.A.22 under Section 114(b) of the Code of Civil Procedure to review the order dated 2.2.2013 on I.A.20. The Trial Court by the impugned order rejected the said application holding that the petitioner herein has not made out any ground to review the order dated: 2.2.2013 after a lapse of four years and accordingly, rejected the said application. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the petitioner/8th defendant as well as Sri.Kailash Chanda Sodhi - Party-in-person/defendant No.2.
5. Sri.Jeevan K, learned counsel for the petitioner, contended that the impugned order passed by the trial Court rejecting I.A.22 is erroneous and contrary to the material on record. He further contended that the petitioner/8th defendant filed written statement which was rejected. He further contended that the 8th defendant has purchased 32 guntas in item 4 of the suit schedule property from the original plaintiff/respondent No.1 6 referred by his PA holder. Therefore, he sought to set aside the impugned order passed by the Trial Court by allowing the present writ petition.
6. Per contra, Sri. Kailash Chanda Sodhi party-in- person while seeking to justify the impugned order contended that the deceased Gulshan Kumar Sondhi has no right in the property. When he has no right in the property he could not execute the sale deed in favour of the 8th defendant. The property belongs to mother. Mother executed an unregistered will in favour of three sons - Kailash Chanda Sodhi, Narendra Sodhi and Jagadishkumar Sodhi and not executed any will in favour of original plaintiff-Gulshan Kumar Sodhi or his wife and probate proceedings were initiated. Ultimately the dispute arose between the parties in O.S.No.339/2001. Accordingly the third defendant filed suit in O.S.No.339/2001 for declaration and possession. The suit came to be decreed by a judgment and decree dated:11.10.2004 by the XIV Addl. City Civil Judge, Bengaluru. Against the said judgment and decree, the 7 present petitioner, who was defendant No.1 in the said suit, filed RFA No.105/2005 before this Court. The Division Bench of this Court by its judgment and decree dated 11.6.2010 dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Against the said order passed by this Court, the present petitioner filed Special Leave Petition (Civil) No:34272/2010 before the Hon'ble Supreme Court. The Hon'ble Supreme Court has dismissed the Special Leave Petition on 22.12.2010. Therefore, he sought to dismiss the present writ petition.
7. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and the party-in-person.
8. It is an undisputed fact that this is the second round of litigation. The vendor filed the present suit O.S.No.4910/2003 for partition and separate possession contending that the suit schedule properties are joint family properties of the plaintiff and defendants. 8
9. It is an admitted fact that based on the will the present respondent No.3 earlier filed O.S.No.339/2001 for declaration of title and possession where the present petitioner was made as the first defendant along with others. The suit came to be decreed on 11.10.2004 made in O.S.No.339/2001 on the file of the 24th Addl. CCJ Bengaluru which was the subject matter of the Regular First Appeal No.105/2005 before this Court. The Division Bench of this Court after hearing both the parties dismissed the appeal, concurring with the finding of fact recorded by the Trial Court based on the oral and documentary evidence, by judgment and decree dated:
11.6.2010.
10. It is also not in dispute that the present petitioner filed SLP before the Hon'ble Supreme Court which came to be dismissed on 22.12.2010. Thereafter the vendor of the present petitioner viz. Gulshan Kumar Sondhi represented by PA holder filed the present suit for partition and separate possession. It is also undisputed fact that in the present suit, present petitioner who is the 8th defendant, filed an application for permission to file 9 written statement/rejoinder by condoning the delay. The Trial Court by an order dated 2.2.2013 rejected the said application. The said order passed by the Trial Court has reached finality. Thereafter after a lapse of 4 years the present petitioner filed review petition under Section 114(b) of the CPC to review the order dated 2.2.2013 on I.A.20. The trial Court considering the entire material on record recorded a finding vide Paragraphs 14, 15 and 16 which reads as under :-
14. This court in Para No.8 of its orders, passed on I.A. No. 20 dated:02-02-2013, has clearly observed that the defendant No.8 has not appeared before this court and failed to file written statement and failed to assign any valid reasons for condoning the delay. Thus, it is clear that there is inordinate delay by defendant No.8 in filing his written statement. Under these circumstances, it is not just and proper on the part of this court to review the orders on I.A. No. 20.
15. In decision reported in ILR 2012 KAR 3558 Head Note -C at page 3561 the 10 Hon'ble High Court of Karnataka has observed as under:
"Permissibility of review must be such which is apparent on the fact of the record and not an error which has to be fished out and searched"
In the instant case, while passing orders on I.A. No.20, this court has assigned reasons and clearly observed that the defendant No.8 has not made out any grounds for condoning the delay in filing the written statement. Therefore, in the light of the ratio laid down in the decision cited supra by the Hon'ble High Court of Karnataka, it is not a fit case to invoke the provisions of Order 47 Rule 1 C.P.C. and Section 114 of C.P.C.
16. The learned counsel for the defendant No.8 has contended that in view of the ratio laid down in a decision reported in AIR 2005 SC 592, if there is a mis-conception of law or facts by the court or by the counsel, the court can review the orders passed by it, It is pertinent to note that the defendant No.8 has appeared through his 11 counsel and filed his vakalath as long back as on 29.11.2004 and the written statement of the defendant No.8 is taken as not filed on 28.01.2008. Thus, it is clear that for almost about more than four years 8th defendant has not chosen to file his written statement. The defendant No.8 has filed I.A.No.20 on 03.04.2012. The defendant No.8 is seeking permission to file his written statement after lapse of four years from the date of not filing his written statement. The reason for not filing the written statement within the stipulated period and there after considerable delay in filing the written statement, is not explained by the 8th defendant. On that ground by observing the same, in Para 8 of its order this court has rejected I.A.No.20. Under these circumstances, the ratio laid down in the decision relied upon by the learned counsel for defendant No.8, cited supra, is not applicable to the case on hand. Thus, viewed from any angle, I do not find any grounds to allow the present I.A.No.22. Accordingly I answer point No.1 in the negative.
11. In view of the aforesaid reasons, it is clear that admittedly the vendor of the present petitioner filed a suit 12 for partition. If the vendor of the petitioner succeeds, definitely the present petitioner who is the 8th defendant will get his share. There was no necessity to file written statement though he was impleaded as 8th defendant, since he was supporting the plaintiff. Even then he filed application for permission to file written statement in the year 2013 which came to be dismissed on 2.2.2013. After a period of four years, he filed the present review petition which is an after thought only to drag the proceedings. Further the trial Court considering the entire material on record has held that the petitioner has not shown the reason for the delay in filing the review petition and there is no error apparent on the face on record to review the order dated: 2.2.2013. The Trial Court also recorded a finding that the 8th defendant filed vakalath as long back as on 29.11.2004 and written statement of the 8th defendant is taken as not filed on 28.11.2008. After more than four years he has not filed written statement. Thereafter he filed I.A.20 on 3.4.2012 seeking permission to file written statement after more than four years. The same came to be dismissed on 2.2.2013. Thereafter the 13 present applicant filed an application to review the order passed. The trial Court considering the entire material on record dismissed I.A.22 filed under Section 114(b) of CPC. The same is in consonance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court exercising the powers under Article 227 of the Constitution of India.
Accordingly the writ petition is dismissed.
Sd/-
JUDGE rs