Karnataka High Court
C.Venkatesh vs Mahadevamma on 3 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NOS.47301-47305 OF 2016 (GM-CPC)
BETWEEN:
1. C. Venkatesh,
S/o Late Chikkahanumaiah,
Aged about 45 years ,
2. Ramu @ Shivaramu
S/o Late Chikkahanumaiah
Aged about 41 years
3. Prashantha
S/o Late Chikkamanumaiah
Aged about 43 years
4. C. Balakrishna
S/o Late Chikkamanumaiah
Aged about 48 years
5. Smt. Rajamma
W/o Late Chikkamanumaiah
Aged about 66 years
All are legal representatives
Of Chikkahanumaiah and all are
R/at Door No.19, 1st Cross
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AJ Block, N.R.Mohalla
Near Siddartha School
Mysore - 570 007 ... Petitioners
(By Sri B Lethif, Advocate)
AND:
1. Mahadevamma
W/o Late Subbanna
Aged about 53 years
2. S. Shankara
S/o Late Subbanna
Aged about 38 years
3. S. Guru
S/o Late Subbanna
Aged about 35 years
4. S. Ravi
S/o Late Subbanna
Aged about 33 years
All are R/at Door No.3544,
Veerannagere
Javarakatte Street
Ashoka Road, East 27th Cross
Veerannagere, Lashkar Mohalla
Mysuru - 570 007
5. Mahadeva
S/o Late Subbanna and
Late Puttamani
Aged about 46 years
R/at Door No.4401
9th Cross, N.R.Mohalla
Mysuru - 570 007
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6. Smt. S. Neela
S/o Late Subbanna
And Late Puttamani
Aged about 41 years
R/at Door No.3462
Anjeneyaswamy Temple Street
Veerannagere
Mysuru - 570 007
7. Srinivasa Murthy
S/o G.S.Thambi
Major,
R/at Kalyanagiri Nagar
Mysuru - 570 001
8. Shivakumar
S/o Late Rangaiah @ Lingaiah
Major
R/at Door No.394
5th Cross, Gandhinagar
Mysuru - 570 001 ...Respondents
These Writ Petitions are filed under Articles 226
and 227 of Constitution of India praying to quash the
impugned order dated 07.04.2016 passed by the I Addl.
I Civil Judge and JMFC, Mysuru in Misc. No.60/2013
vide Annexure-A, etc.
These Writ Petitions coming on for preliminary
hearing this day, the court made the following:
ORDER
Respondent No.1 (a) to (e) in Miscellaneous Petition No.60/2013 filed the present writ petition -4- against the order dated 07.04.2016, allowing the petition filed by petitioners under Order XXII Rule 9 (2) r/w Section 151 of CPC in part. The order of closure passed on 26.08.2013 in O.S.No.923/2007 on the file of I Additional First Civil Judge and JMFC., was set-aside, original suit was restored. It was further ordered that I.A.No.11 to 13 filed for setting-aside the abatement order and to condone the delay will be considered in the said suit and directed both the parties to appear before the Court on 01.06.2016 without waiting for further notice from the Court with costs of Rs.500/- payable to the Legal Service Authority.
2. The father of respondent Nos.1 to 6 filed O.S.No.923/2007 against the father of the present petitioner Nos.1 to 5 and respondent Nos.5 to 8 for declaration that sale deed executed in favour of the 1st defendant on 08.09.2004 before the Sub-Registrar is null and void and sought permanent injunction -5- restraining the defendants, agents, servants from interfering with their peaceful possession and enjoyment of the suit schedule property. It is contended that the plaintiff is in possession and enjoyment of the suit schedule property and the 1st defendant has no manner of right, title and interest, interfering with the same. Therefore, he has filed present suit.
3. The 1st defendant filed the written statement and denied the entire plaint averments and sought for dismissal of the suit.
4. During the pendency of original suit, the original plaintiff died on 18.09.2011 and subsequently, the 1st defendant also died on 25.09.2011. The suit came to be abated on 06.02.2012. Subsequently, respondent Nos.1 to 6 have filed applications to bring L.Rs., of the original plaintiff on 16.10.2012. Subsequently, for not taking steps by defendants Nos.1 to 6 on the application, the case came to be closed on -6- 26.08.2013. Thereafter, respondent Nos.1 to 6 filed miscellaneous petition No.60/2013 under Order 22 Rule 9 (2) r/w Section 151 of CPC along with application under Section 5 of the limitation Act on 29.10.2013. On perusal of the impugned order dated 07.04.2016, allowing the petition filed by petitioners under Order XXII Rule 9 (2) r/w Section 151 of CPC in part. The order of closure passed on 26.08.2013 in O.S.No.923/2007 on the file of I Additional First Civil Judge and JMFC., was set-aside, original suit was restored. It was further ordered that I.A.No.11 to 13 filed for setting-aside the abatement order and to condone the delay will be considered in the said suit and directed both the parties to appear before the Court on 01.06.2016 without waiting for further notice from the Court with costs of Rs.500/- payable to the Legal Service Authority. Hence, present writ petition is filed. -7-
5. Sri.Lathif, learned counsel for petitioners contended that the impugned order which was passed by the trial Court allowing Miscellaneous petition in part is without considering the delay and setting aside the abatement. The same is erroneous. Therefore, he sought for quashing the impugned order passed by the trial Court.
6. Heard the learned counsel for the petitioner.
7. It is undisputed fact that father of respondent Nos.1 to 6 have filed the suit for declaration declaring that the sale deed dated 08.09.2004 executed in favour of one Chikka Hanumaiah - defendant No.1 is null and void and prays for permanent injunction. It is also not in dispute that the original plaintiff died and the suit came to be abated for not taking steps on 06.02.2012. Subsequently, on 16.10.2012 the L.Rs., of the original plaintiff filed application for setting-aside the abatement and delay in bringing L.Rs. Since they have not taken -8- steps, the case was closed on 26.08.2013, which made respondents to file the suit. Respondent Nos.1 to 6 have filed Miscellaneous petition No.60/2013 under Order XXII Rule 9 (2) r/w Section 151 of CPC. The trial Court after due notice to both the parties by its impugned order recorded the specific finding that the petitioners have made out a grounds to allow the Miscellaneous Petition.
8. It is to be noted that the Courts are not only Courts of law, but also Courts of equity. Parties cannot be disentitled for seeking on technical ground, suits have to be disposed of on merits. If any lapse on the part of the parties, the same can be suitably compensated by imposing costs. If the application is not allowed, the petitioners will be put to irreparable loss, injury and hardship and if the application is allowed, no hardship will be caused to the respondents. -9-
9. Ex.P.1 discloses that the suit was closed on 26.08.2013, within one month from the date of closure, the petitioner filed Miscellaneous Petition. There is a delay of only 36 days in filing the petition. The delay is minimal and needs to be condoned by imposing the costs. Accordingly, allowing the petition in part imposing Rs.500/- payable by the petitioner to the Legal Services Authority. However, it was clarified that I.A.Nos.11 to 13 filed by L.Rs., of the original plaintiff for setting-aside abatement, condonation of delay in bringing L.Rs., will have to be considered by the trial Court on merits.
10. It is well settled principle of law that;
"Obligation of Court which dealing with application for condonation of delay in land acquisition matters for enhancement of compensation. Approach of Court to be pragmatic and not pedantic. Substantive rights of appellant landowners cannot be allowed to be defeated on technical
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grounds by taking hypertechnical view of self-imposed limitations. On facts held, equities can be balanced by denying appellants' interest for period they did not approach Court."
11. In the present case, the suit was filed for declaration and permanent injunction in respect of immovable property to an extent of 30 guntas and the rights of the parties has to be decided on merits and could not thrown out the parties from the Court on technicality. Keeping in mind the above principle, the trial Court is justified in allowing the petition under Order XXII Rule 9 r/w Section 151 of CPC in part and the same is in accordance with law.
12. In view of the above, the respondents have not made out any ground to interfere with the impugned order passed by the trial Court by exercising the powers under Article 227 of Constitution of India. Accordingly, these writ petitions are disposed of.
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The trial Court shall consider the pending applications and decide on its merits in accordance with law.
SD/-
JUDGE MR