Karnataka High Court
Nataraju M Kasetty vs H E Mynuddin Pasha on 20 January, 2021
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CIVIL PETITION No.104/2020
Between:
Nataraju M. Kasetty,
S/o M.B. Kasetty,
Aged about 71 years,
R/o B.H. Road, Near Bus Stand,
Shivamogga - 577 201. ... Petitioner
(By Sri R. Gopal, Advocate)
And:
1. H.E. Mynuddin Pasha,
S/o H. Ebrahim,
Aged about 60 years,
Excise Licensee & Proprietor of
Prince Liquors,
Near Bus Stand, B.H. Road,
Shivamogga,
R/o "H.E. Nivasa",
4th Cross,
Rajendranagar,
Shivamogga - 577 201.
2. K. Shivakumar,
S/o M.B. Kasetty,
Aged about 56 years,
R/o Kasetty Building,
Near Bus stand,
B.H. Road,
Shivamogga - 577 201.
2
3. Mohammad Ibrahim,
S/o Mohammad Koya,
Aged major, Bag Palace,
Leather Bags,
Suite cases & Novelty items dealers,
Kasetty Building,
Near Bus Stand,
B.H. Road,
Shivamogga - 577 201. ... Respondents
(R1, R2 & R3 - Served)
This Civil Petition is filed under Section 24 of CPC, praying
to withdraw and transfer R.A. No.72/2017 pending on the file of
III Additional District and Sessions Judge at Shivamogga to this
Hon'ble High Court for disposal of the same along with RFA
No.1538/2017 pending on the file of this Hon'ble Court in
accordance with law, in the interest of justice and equity.
This Civil Petition coming on for Admission this day, the
Court made the following:
ORDER
This petition has been filed by the plaintiff in O.S.No.225/2004 and defendant in O.S.No.290/1999. O.S.No.225/2004 is stated to have been filed seeking the relief of recovery of rent, damages and recovery of possession of suit schedule property by the petitioner, who is the plaintiff in the said suit, which is stated to have been dismissed. On the other hand, O.S.No.290/1999 is the suit for partition filed against the present petitioner by respondent No.2 herein and other persons. 3
2. It is submitted that both suits, O.S.No.290/1999 and O.S.No.225/2004 were clubbed together and after trial common judgment has been passed on 12.04.2017 disposing off both the suits, whereby O.S.No.225/2004 came to be dismissed, while O.S.No.290/1999 has been decreed.
3. It is further submitted that as against the judgment and decree in O.S.No.290/1999, R.F.A.No.1538/2017 has been filed in light of pecuniary jurisdiction, while aggrieved by the judgment and decree in O.S.No.225/2004, R.A.No.72/2017 has been filed, which is pending consideration.
4. The respondents have remained absent despite service of notice.
5. The learned counsel appearing for the petitioner submits that the right of plaintiff in O.S.No.225/2004 rests on the relinquishment deed and Will set up by him which is 4 also the same defence taken by him as defendant in O.S.No.290/1999.
6. It is submitted that eventually in the judgment and decree in O.S.No.225/2004, the trial Court has adverted to the validity of relinquishment deed and Will. Even in the present appeal, the validity of relinquishment deed and Will would be a determining factor while passing the final judgment.
7. It is further submitted that conflicting decrees ought to be avoided, and that if the findings are given by both Appellate Courts, i.e. in R.A.No.72/2017 and R.F.A. No.1538/2017 in a divergent manner, there would be miscarriage of justice.
8. Taking note of the common issue involved in the appeals pending before the Appellate Courts, i.e. as regards the validity of relinquishment deed and Will, it is just and appropriate to prevent the passing of conflicting decrees by consolidating the proceedings.
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9. Noticing that R.F.A.No.1538/2017 is already pending before this Court, which appeal is filed against the judgment and decree in O.S.No.290/1999 to avoid passing of conflicting decrees on the basis of findings on common contentions raised in both the suits, it would be just and appropriate and in the interests of justice to withdraw the proceedings in R.A.No.72/2017 pending on the file of III Additional District and Sessions Judge, Shivamogga and transfer the same to this Court to enable the said Regular Appeal being disposed of alongwith R.F.A.No.1538/2017.
10. It is noticed that issue Nos.10 and 11 relate to proof of Will and relinquishment deed, which is also a matter that has been raised as defence in O.S.No.290/1999, wherein the present petitioner's brother was the plaintiff.
11. Accordingly, the proceedings in R.A.No.72/2017 pending on the file of III Additional District and Sessions Judge, Shivamogga is to be withdrawn and transferred to 6 this Court, for being disposed of alongwith R.F.A.No.1538/2017.
12. The records pertaining to R.A.No.72/2017 pending on the file of III Additional District and Sessions Judge, Shivamogga is to be transmitted to this Court forthwith.
This petition is accordingly disposed off.
Sd/-
JUDGE VGR