Karnataka High Court
M.P.Sreenivas S/O M.N. Pompapathy vs M.P.Raghavendra Prasad on 6 October, 2017
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION Nos.204016-17/2017 (GM-CPC)
BETWEEN:
M.P.Sreenivas
S/o M.N.Pompapathy
Aged about 48 years
Occ: Business
R/o Flat No.302
Basava Kalyana Tower
Kallur Colony, Station Road
Raichur, Dist. Raichur
...Petitioner
(By Sri Ashok S. Kinagi, Advocate)
AND:
1. M.P.Raghavendra Prasad
S/o M.N.Pompapathy
Aged about 50 years
Occ: Private Employee
R/o H.No.1-1248/1, Geeta Nagar
Yemmiganur, Village of
Yemmiganur, Dist. Kurnool
(Telangana State)
Presently working at Bangalore
through his G.P.A. Holder
Shri M.P.Harikrishna
S/o M.N.Pompapathy
The respondent No.2 herein
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2. M.P.Harikrishna
S/o M.N.Pompapathy
Aged about 45 years
Occ: Business
R/o H.No.1-1248/1
Geeta Nagar, Yemmiganur
Village of Taluk Yemmiganur
Dist.Kurnool
3. Dr.M.P.Sathyanarayana Murthy
S/o M.N.Pompapathy
Aged about 43 years
Occ: Private service
R/o H.No.1-1248/1
Geeta Nagar, Yemmiganur
Village of taluk Yemmiganur
Dist. Kurnool
(Telangana State)
Presently working in U.S.A. though
his GPA Holder M.P.Harikrishna
S/o M.N.Pompapathy
The above respondent No.2 herein
4. M.N.Pompapathi
S/o Late M.I.Nagappa
Aged about 75 years
Occ: Business
R/o H.No.6-3-141 Fantasy residence
1st floor, apartment No.101
near Sub-Registrar Office
Ramnagar, Ananthpur
Dist. Ananthpur
(Telangana State)
5. Smt. M.P.Jayalaxmi
W/o M.N.Pompapathy
Aged about 67 years
Occ: Household
R/o H.No.6-3-141, Fantasy residence
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1st floor, Apartment No.101
Near Sub-Registrar Office
Ram Nagar, Ananthpur
Dist.Ananthpur
(Telangana State)
6. M/s R.B. & Sons Cotton Traders Raichur
A registered partnership firm
(Registration No.RCR-F-24-2007-08)
through it Managing partner
Mr.Rajendra Kumar Varma
Aged about 53 years
R/o H.No.1-10-71, Kallur Colony
Station Road, Raichur
Dist. Raichur
...Respondents
(By Sri C.Keshava Rao and
Sri Veerangouda Malipatil, Advocates for C/R2;
Sri Shivanand Patil, Advocate for C/R1 to 3)
These writ petitions are filed under Article 227 of the
Constitution of India, praying to issue an order or writ in
the nature of certiorari quashing impugned order on
I.A.Nos.10 and 11 dated 17.07.2017 passed in
O.S.No.25/2013 by the learned II Addl. Senior Civil Judge
& JMFC, Raichur, vide Annexure-G, and consequently
allow the applications i.e. I.A.Nos.10 and 11, and etc.
These petitions coming on for preliminary hearing this
day, the Court made the following:-
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ORDER
The petitioner has challenged the orders passed on I.A.Nos.10 and 11 dated 17.07.2017 in O.S.No.25/2013 on the file of II Addl. Senior Civil Judge & JMFC, Raichur at Annexure-G to the writ petition.
2. That respondent Nos.1 to 3 filed suit in O.S.No.25/2013 against the petitioner and other respondents seeking the relief of partition and separate possession in respect of suit plots. The respondents submitted that the suit properties are purchased in the name of "M/s Automobiles Raichur". It is the contention of the petitioner that the said family business and all the affairs of the joint family were managed by the father of the petitioner and respondent Nos.1 to 3 i.e. as the karta of the joint family, but respondent No.4 failed to discharge his duties as karta and thereby acted adverse to respondent Nos.1 to 3. Hence, respondent Nos.1 to 3 constrained to file the suit. The petitioner contested the suit by filing 5 written statement, denying the allegations made in the plaint.
3. It was contended by the petitioner that "M/S Automobiles Raichur" is a registered proprietorship firm and an established unit of Tyre Retreading Unit and the petitioner is sole proprietor of the firm and the suit properties are not coparcenary properties, but business assets of the petitioner firm. In the said suit proceedings, the petitioner filed an application (I.A.10) under Order VII Rule 11 read with Section 151 of CPC seeking rejection of plaint, as respondent Nos.1 to 3 have not made out any cause of action. Yet another application (I.A.11) was filed under Order VIII Rule 1-A read with 13 Rule 1 of CPC seeking for a direction to respondent Nos.1 to 3 to produce the document of partnership deeds as referred to in the Memorandum of Understanding, dated 14.10.1990, filed by respondent Nos.1 to 3 as the said document is essential in deciding I.A.10. These applications were opposed by 6 respondent Nos.1 to 3. On appreciation of material on record, trial Court was pleased to pass an order keeping the applications in abeyance pending compliance of the order of this Court in Writ Petition No.202070/2016. Hence, these writ petitions.
4. Learned counsel Sri Ashok S. Kinagi, appearing for the petitioner would submit that the trial Court committed serious error in keeping the applications (I.A.10 and 11) in abeyance on the ground that unless and until orders of this Court is complied, the same cannot be considered. It is submitted that respondents had filed application seeking direction to deposit an amount of Rs.8,16,000/-, and the monthly rent of Rs.68,000/- received by him from July 2013 to December, 2014, and to deposit further monthly rent from January 2015 onwards, with the Court till the disposal of the suit which has been confirmed by this Court in Writ Petition No.202070/2016. In the event, the petitioner has not complied the order 7 passed on I.A.5 confirmed by this Court, the respondent has got alternative remedy for executing/implementation of the said order. But the trial Court cannot impose a condition that unless and until the order is complied, it will not hear I.A.10 and 11. The said condition is contrary to law.
5. It was submitted that earlier, the petitioner had filed an application for rejection of plaint i.e. I.A.6 before the trail Court, the said application was rejected. Against which, CRP No.200005/2017 was filed before this Court. The petitioner sought leave of the Court to withdraw I.A.6 with liberty to file afresh application. This Court was pleased to grant leave for withdrawing I.A.6 and file fresh application. Accordingly, fresh application numbered as I.A.10 was filed, summoning all the additional documents was necessary, as such, I.A.11 was filed. It was mandatory for the trial Court to consider the said applications and pass orders without insisting for complying the orders 8 passed in Writ Petition No.202070/2016. In support of his contentions, learned counsel placed reliance on the following judgments:
1) Ram vs. Murlidhar and Others [2008 (1) KCCR 218];
2) Saleem Bhai and others vs. State of Maharashtra and others;
6. On the other hand, learned counsel Sri Shivanand Patil appearing for caveator/respondent Nos.1 to 3 submits that the impugned order is only a consequential order in process to keep consideration of the application of the petitioner in abeyance and there is no order passed which would substantively affect, determine or negate any of the rights of the petitioner that would necessitate interference. The impugned order would not prejudice or affect any of the rights or interest of the petitioner in any manner.
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7. The petitioner who has been receiving the rents of the joint family suit premises is deemed to be holding the said amount in trust for and on behalf of the parties. The petitioner was directed by the trial Court to deposit the said amount in the Court, which has been confirmed by this Court in Writ Petition No.202070/2016, which has attained finality. The positive direction of the Court had to be complied with, in letter and spirit and in the event of the party failing to comply with or there was willful disobedience, the Court in exercise of its inherent powers has the authority to pass all such orders including striking off the defense of the party to enforce compliance with its orders. However, the Court below being sympathetic has afforded an opportunity to petitioner to comply with the order by keeping the consideration of the application in abeyance, which is wholly justified.
8. It was further submitted that the power vested in the Civil Courts to pass suitable orders under Section 10 151 of CPC are wide enough to secure the ends of justice and prevent abuse of process of Court, to stop mockery of the Court orders, for compliance of its orders, for dealing with situations which affect the majesty of the Court and for all such eventualities and purpose to do complete and fair justice. In view of the power vested in the Courts under Section 151 of CPC the order of the Court below does not suffer from any impropriety and the same do not call for any interference by this Court. In support of his contention, the learned counsel placed reliance on the judgment of M/s Bangalore Builders (P) Ltd., Bangalore v. P.P. Anthony and others [ILR 1978 (1) KAR 782].
9. Heard the learned counsel for the parties and perused the material on record.
10. In the case of Ram supra, Civil Revision Petition was filed by the petitioner therein aggrieved by the order of the learned Trial Judge in not passing a clear order on the application filed under Order VII Rule 11(d) of CPC but has 11 relegated deciding the application after recording the evidence of the parties. This Court held that while it is true that for the purpose of deciding the suit, parties are to let in evidence and particularly, for examining the allegation of fraud etc., the trial Court may have to receive evidence to answer such questions, that is not necessary for the purpose of examination of an application under Order 7, Rule 11(d) of CPC. This application has to be decided at the threshold and cannot be relegated to a later stage to the extent that the learned Trial Judge has relegated answering this question particularly, at a stage for receipt of evidence.
11. In the case of Saleem Bhai supra, the Hon'ble Apex Court held that the relevant facts which are necessary to be looked into for deciding an application under Order VII, Rule 11 of CPC., are the averments in the plaint. The trial Court can exercise the power under Order VII, Rule 11 of CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time 12 before the conclusion of the trial. The pleas taken by the defendant in the written statement would be wholly irrelevant. Therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 of CPC., cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court.
12. In the case of M/s Bangalore Builders supra, placing reliance on the decision of the Hon'ble Apex Court in AIR 1966 SC 1899 it was held that the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. The power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court is held to be justifiable. Where, in a suit for ejectment and arrears of rent, the defendants were directed to go on depositing the arrears and the current rents by its order on the interlocutory application and there was willful non-compliance of the same, the Court has jurisdiction to 13 strike off their defence in exercise of its inherent powers under Section 151 of CPC., for the ends of justice or to prevent the abuse of the process of the Court.
13. It is not in dispute that I.A.5 was filed by respondent Nos.1 to 3 under Section 94 read with 151 of CPC., which came to be allowed directing the petitioner to deposit certain amounts. It has been confirmed by this Court in Writ Petition No.202070/2016 and the same has reached finality. Subsequent to passing of the order by this Court, the petitioner filed an application under Order VII Rule 11 of CPC, which came to be rejected. Against which, CRP No.200005/2017 was filed and the same was withdrawn with liberty to file a fresh petition. It was observed that in the event of fresh application being filed, the respondents are at liberty to file objections to the said application and urge all grounds which are available to them. Pursuant to the dismissal of revision petition, the petitioner has filed two applications i.e. I.A.Nos.10 and 11. 14 There is no cavil on the proposition of law canvassed by the learned counsel for the petitioner. Referring to the judgments cited supra as aforesaid, the judgment of Ram supra, was rendered in the context of the case where the application under Order VII Rule 11 of CPC was deferred to a later stage of answering the question i.e. I.A at the stage for receipt of evidence. In Saleem Bhai supra, the Hon'ble Apex Court has observed that the order passed by the trial Court directing the defendant to file written statement without deciding the application was held to be procedural irregularity and suffers from non-exercising of the jurisdiction vested in the Court. Hence, these two judgments are not applicable to the present facts of the case where the petitioner has suffered an order from this Court in Writ Petition No.202070/2016, which has reached finality. The Court below is empowered to exercise the inherent power vested under Section 151 of the Code to prevent abuse of process of Court. The conduct of the petitioner in not complying the orders passed by this Court 15 in Writ Petition No.202070/2016 and then filing an application under Order VII Rule 11 of CPC for rejection of the plaint tantamounts to abuse of process of Court. The petitioner cannot act according to his whims and fancies. It is based on the plaint averments application under Order VII Rule 11 of CPC has to be considered. The relief claimed in I.A.11 seeking direction to the respondents to furnish additional documents which are necessary for deciding the issue under Order VII Rule 11 of CPC would indicate that the petitioner is unnecessarily prolonging the compliance of the order of this Court in filing the applications in seriatim.
14. This was the identical situation before this Court in M/s Bangalore Builders supra, wherein it was held that the Court can strike off the defence in exercise of its inherent powers under Section 151 of CPC., in willful non-compliance of the order passed by the Court in order to prevent abuse of Court and to meet the ends of justice. As could be seen from the records, the earlier application in 16 I.A.6 seeking for rejection of the plaint filed under Order VII Rule 11 of CPC was dismissed and this Court granted liberty to withdraw the same and to file a fresh application. Accordingly, the present applications are filed.
15. Looking at the substance of the order impugned herein, it is difficult to subscribe the view advanced by the learned counsel for the petitioner. It is not in dispute that the amount directed to be deposited by this Court is not complied with.
16. In these circumstances, there is no justification to think that there was no willful default on the part of the petitioner in not complying with the order of the trial Court confirmed by this Court. The conduct of the petitioner is contentious and it cannot be said that the Court below was not justified in passing the impugned order keeping I.A.Nos.10 and 11 in abeyance pending compliance of the order in Writ Petition No.202070/2016. The order impugned is passed obviously to prevent the abuse of 17 process of Court and to meet the ends of justice and the said order does not merit interference.
17. In the result, writ petitions are dismissed. No costs.
Sd/-
JUDGE sdu