Karnataka High Court
Puttaswamy vs Nagaraju on 15 September, 2010
Equivalent citations: 2011 AIR CC 334 (KAR), 2010 (4) AIR KANT HCR 967 (2010) 4 KCCR 2922, (2010) 4 KCCR 2922
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGAEORE
DATED THIS THE 15"" DAY OF SEPTEMBER, f'2A(,i1%_o :;
BEFORE J
THE HON'BLE MR. JUSTICE ANAAI'$fD~ :l3.S7R»AI%::'Elj'IV)T"f15. °V_i
REGULAR SECTIONDV}5.l§'PI§ALAN:'): 1V1_§f:2(':).{)8"'
BETWEEN:
1. Puttaswamy
S/0 Nagaxujitl'. _
Aged about 214' ya-;;11':s¢, V "
2. Lathe: D..'T() ";"\«J'3i.:1_;_$:7_Eil'E;idILi} ~ V
Aged 'amfmt 221
3. Asiha D/0 u"~ "
A ged E about 20 yAci;1'k':a.,T
v 4. ':'«:.BE:;}:Vig:a,1'i D/<.3"Na.g.;::'21ju
_ab«:.)ut 17 years,
_ Eif\/i"i.1:1 ()r,"R_ép;'esenIed by
.,_vE'M'()tE'_e;' guardian
A Smt. _I*Ij'(mm11mm: W/0 Naga:'aju,
E T A'?! hrc: residing at Srin':vasanz1g£1m,
" V "»,Kasaba Hobii, Arsikere Town,
' --7A1'sikere Taiuk,
I-Iassan District W 573 103, ...APPEL,LANTS
[J
(By Sri A.V. G-an;_:_adha1'appa for A.V.G. Associates, Advocates)
1. Nagaraju
S/0 Late Mariyappa,
Aged about 55 years,
2. Thimmaraju
S/0 Late Mariyappa, I
Aged about 33 years,
3. Sh aradamma
W/0 Lakshmegowda.
Aged about 55 yeiml,
All are residing at S:'ir1iv*as_a 'i'~1.;1'g;i';9a,:
Arsikere Town, 4§<dz:s.aba:}i()bii'; '
Arsikere Taiuiigi -- I03'. '.';;RvESPONDENTS
(By Sri. for Respondent No.3)
>Z~=i~=>I< V "iizis 'P..egu!arV"S'eieond Appeal is filed under Section 100 of ' C0516 uf "CiV'.i_iii"1T()C€dLiI'€. 1908, against the judgment and decree dait-edii7:.9":.2{){.V{'-passed in R.A.N0.30/2()()4 on the file of the Civil Judge (Sl'}i:3j'i1i':;&1l1{i Additional CJM. Arsikere, dismissing the aippeail ,.,///ii1':;i«*" confirming the judgment and decree dated i9.i?.:fZV()t':.)3 passed in O.S.N0.227/1997 on the fiie of the 2«'.dd_itiL)iiai Civil Judge (.lr.Dn) & JMFC, Arsikere. i This Reguiar Second Appeai coming on for Hearing this i day, the court delivered the foiiowing:
.IUli)GiV1ENT Heard the counsel for the appellant and th.e.i~.l_:l'e.a_i'a_ed counsel for the respondents.
2. The parties are referred to by""the.i:r l'E:1I1l<li]€§:".{l'li£:.l court for the sake of convenience.
3. The facts ofthe case l'(.)iil.(W\__/Si The appellants were thel'pla*is.itiffsAbeforeithe"'ti'ial court. The suit was filed for pa_i'titioi"§ gi.r1§{--,.'5ep';:li'a1te possession. Plaintiffs l toi_'4 l'i1:ll'1:l()1'.t3hVlldll'€iE--~dl' defendant no.2 and were 1-e_z;si'esente.d ljy.Tt'i.»;e_lii6.iiiother. it was contended that the plaintiffs and Vdefei:..dan_ts"were the members of a joint family. 'Defe'ndai1t "n;).4 w'asWtlie pUl'Ch'c1S€I' of the suit property. It was .CE)"l'.I:Cil'iiit:3'&ll.Villlitllfi-iillii first defendant was the karta of the joint faii'1ilyv--andvt'lie second defendant was the father of the plaintiffs "aiit'l_ theson of defendant no.l. It was alleged that the second i"§defendant had negleete.d the family consisting of the plaintiffs The defendants had contested the suit and had denied the plaint allegations. it was also contended that the mt)theij""o--fi the plaintiffs had no right to tile a suit for pa.rtition..~«~~-d.ttring'.j'the._ lifetime of the second defendant on behalf of.t~hei.ip'lainti:ffS. lt i was also denied that the suit pi*t)pei'ty.14w'a5;-Aa.n'cestral. pt"t)pe:i*t_y.'<;;Vlt was evident from the inateiia_l"--~on record. atc§:t')t'=d'i'tttgWto the: L' defendants, that it was the selfi-acd"u--iz'edyAprope'rtvy,.o.t7§defendant no.1 and it was his excltisiye pttoipertyiii'~.oye'i'--.which defendant no.2 and defend:it.nt1' no.3 L'::('y',:»l.'}:d *no'ti.jcl-aviinifany right. The suit was a z1i'ehtl <:'ib_:;'oui'ht~ 'rive the" fourth defendant of the PP 3,__ __ 3 ._ P 1 deed dated 4.3.1996 being a regist_e_red sale {teed-.ctitsld"'iit)t he set at naught at the instance of the'*--plai»--ntif'fs..unlessViitmwzts established that the suit property was joint pVifope.i'ty. Though these were the pleadings, at the stage of the'ti'ial, evidence was tendered by the plaintiffs to 'con.t_end'"that the suit property had, in fact, been purchased from out of the sale proceeds of the joint family property which was \.2' (3 brought to sale and having regard to the proximity of the transactions it could certainly be demonstrated that defe~n_(la_¢nlt~s i to 3 in active collusion with defendant no.4, had:---iitdic'atetl ~ nominal consitleration in respect olithe st';le_.th"(.mgiii v--.hugt2 amounts were invested on the suit propei't'yV, It o'nly~ in»o'r{le1'~_ to defraud the plaintiffs of their._legiti_mate._Share in the said property.
The tria1.eourt on the respective pleadings, tiegzttiiig the issues against.-the_p'ta:ir1t;i't7l'§ been carried in appeal, the appellate e<1_Lii't:lr2t,R§'t»i.Ii_ii"ti.ti:ri.g_tt'hrme.d the 'iudgment of the trial court. _ lnciiienVt'a!ly,';.thepilaihtiffs sought to file two interlocutory applica.tti'on's._before""thei lower appellate court in I.A.No.5 and .Vl.VLA.Vl'\E\.')~i,..V'::"'-.4' iijm;~~.Nt).5 is filed under oi-tier XLI Rule 27 of the Code offiCvivii Procedure, l9()8 (H€1'€lI1ElflZ€l' referred to as ' the 2 'CFC' for brevity), seeking to produce the reg'i.<;terecl sale deed
20.i.l975, whereby the property belonging to the family was sold in order to facilitate the purchase of the suit property. This according to the plaintiffs' mother was not available "at the time of filing the suit and the document if producetl_...:.1_:jatl:p::oyed would clinch the case in favour of the plaiiiititffs'~--t.h2it.i.:the suit property was indeed ptitchased out (hfthe-ptfticeed's..t)'f.the"sale.,of the said property, which wttsvtidtnittedi-y 2 the tp;i--':~,pe.i-_;y of thedt family. l'.A.7 was tiled seekiVn.gliw_i_thdrawal"0ff_tl1¢?suit with llb€E'[ to file a fresh suit 'on tl1.€.i:'sz}ai11e'=i§atLis'e.of action on the ground that the .sht')t--he.:' {git the:'Jmi.noti"plaiiit';:fi's had filed the suit without thei'pei'_i-hission t)l'tcl'j::Al'c<)u;t inhale' was tiled dLit'ing_1 the life time ot"*_thei_1' 'l'athe:t~",,u,antl_iV ltehtjre, the. mother being the natural guziitliaii t')f"t~he" p.laiv:1tiit't_'sVaiad since she was not worldly wise, ghe, "hat-:1 I'1ot pttisvecuted the suit with due diligence, as is agmztzfent:'fijt5nijth.e fact that it was not even pleaded that the suit p1'('5pe1'ty' was purchased out of the sale proceeds of the sale of thcyfzintniily property which is sought to be evidenced by the Atlocunient which is tiled along with l.A.5 and it is in that 9 entertaining the application and permitting the plaintiffs to tile a fresh suit only on that additional ground and hence has dismissed the applications.
4. In the present appeal. at the time_t3f»a1.d'missiort, the substantial questions of law that are 'lllZfdln£_:iCl* are as 'i't.)lll'ow's:}~.__ :3 A "'(l) Whether thei._t'ii'ttst apip-ellate justified in not et)nsidei'_i_itg-._the_» applieatitiit itiled tinder Order XX[VE'§'..'¥QJ"-Lllfl Ii ti-t%*.tiiect¥§ic.-2and (2_).--Whethr;§t' the',?li.i'st"-appelltate Court was t'equi__-red .to'I[_C.tjl*.nsidet_' the -.:'apfplication under Order XL]: 'Rt:lei'.2'7."i(slj'_ t"he"CPC before proceeding to dispose of the p.ea*l oil merits At the'ti'ir1e.l*ot'"hearing. the learned counsel for the ap_pe!lai'.ts wotiltl lay stress on the reasons assigned by the H ~!_owei' a'ppe..l.l_a1tefCt)tti't in rejecting the said applications and while notilso iinuen addressing the merits of the judgments of the trial eotlrt or the lower appellate court on the pleadings that were _, C. .- -.,_' _/' 1 0 present. It is emphasi/.ed that the interest of minors is concerned and the admitted fact that the suit was tiled by the mother who was an illiterate woman and who has jeopardized the.ir.ih«t.ei=est by not prosecuting the suit in the manner it oughtto littyevtllbeehtitc ' is evident from the proceedings andthe t_ard_y jtashionf} in which evidence was tendered, l'€(.}1,lil'li"~!_g"'CVQl'l'€C{lt_3fl by 'i'ecou~.".se~, to I.As.5 and 7. The learned e'il_itu:nse»l .W(.)l.'l'h'iV_ length to demonstrate that no to lthe"xdei"endants if the plaintiffs,.._whose.tt.very at stake, are permitted to the tha'n--i1e1' known to law on the basis ofdi'>::uVine'n.ts'-which' were unfortunately not produced at the 1'elevant 'p:')iV11t_ot'--._tiit=--.e. The summary fashion in which lV'~._the[_ap;3a,l'it:attions liav'e""beeii dealt with by the lower appellate coart'tl1e1tefore~.._is not in accordance with law and the learned coL'insel..__"wcottld expound in this fashion to contend that the ao.p'1icati'ons ought to be allowed as it would be in the interest of 1 and it is for the plaintiffs to stand or fall by the fresh l l p!"(JCB€dl1]gS that may go on. In the meanwhile. there would be no prejudice caused to the defendants except that they would have to face the proceedings, which are inevitable.
6. While the learned counsel for the i'espo.nldel1i'ts',1'woa'3d'. submit that insofar as the reasoning oiitheé trial coa'i'i':Vt1s"".velVl V the lower appellate court on the bttsis.Vt)it7._tlie ple2tVding:;.. material already on record is concerned, it .cann_"ot he said that the same can be t'at:i'ted_. herefovfe;-._&the oitty" point for consideration is whether the lovtter appelvllate';Vc;:tjtrr't is justified in re_jecti;_ig lA_si.i57at1d t'ii'1_d"Sf.l_l'1C_E' those are the only questions of iaw framed. it need not g1e"t-ainlthis court long in addressing the quegftioits of laiwswhich are well settled by decisions of the *cotst't. ..VThe«..le'atjited counsel would theret"ore place reliance on two"decisi'e-inshf' the Supreme Court in this regard. Insofar as the applieatioii seeking permission to withdraw the suit and file a ti'esh;suit is concerned, the learned counsel would place reliance son a decision in the case of K.S.B/1()()])(!I/I_\-* and (if/'l€I".S' vs. lj R(zja.s'r/Irzrz. vs. T.K.ScI/mm and orlmrs, (2001 )/0 SCC 619, wherein it is held that it is only something which remained obscure. should be tilled up so that the Court could pi'(:nos4nce judgment in a more s:,-itisfactoi'y manner. which wgotirlelgp:f'(3»i'Q_pt~. the court to consider an application under ()i'der'R'ule=;f/' out the CPC. Therefore, In the present':.case,rA.
court having held that on the fé1ce""o.fit, the t_1dd_itig:3p2tl._:d'oct:ments'VV V sou ht to be roduced..~. would' not enable the «luintiffs to 3 I3 V . E3 advance their case, when priinzi't'acie_._iit'--didnot establish any connection betweeniithe. *\_/en_do=1;" u'P.clei*i_it'l1e__s£ile deed, in that. the vendoris shown 'a:;§'ja_pe::sc.:;Mao was in no way connected with the fainily Kitthepl21rntiil'l's, no purpose would be served in pe'i*mittii_n.g the docti'iTi'en1 to be taken as evidence and to deal V' i\)i\/with'the'i3I]ai[ti("§t".V;tf1'eSl1 with reference to the same. Therefore, the leai'r.ned..__'co-uiisel would submit that there is no infirmity in the ei'ejectioi'i of the said applications. Though the said questions are not substantial questions of law, since they are trained as such by this court, the same may be answered aeemdingly.
7. By way of reply. the learned counsel fmj would still insist that there is no haiuand f£i'SIl"l"'c!il:e~.bitES in the cotirt granting permission to withdtaw a1'_isL1~i't and itositile »t«.lit'--..'f,'1'li:%1;:;i_l:1 suit even at the stage of an zn5pe.al"bet'tii'e' the 'Sut)njei*n_:e"Ct>Li1't. IIV V is possible that pei'missinn easi"'ber_:gi'ai'itecl to w'itlicilt'aw a suit and to file a fresh suit at any Vstagei as _.is_i'eyfidei_tt from a decision of the apex c='.§Lirt;i.ii' 85.)}-:i'r*cii1i=i"i1-'.§j" _G.sii'rzr1...§ ( I98] )4 SC C 2009, wherein ll1CiSlt:ipI't_{iT'l€V Cr)Ln=t__l*ia_s allowed a suit to be withdrawn with liberty to file. a"ft;es,.li";suit§ on payment of costs. Hence, he W(?Ll{l(ll submit that: therejectitin' of the applications oftlhand by ' V.tlie..ylt_>wVe':*s appellate. court has caused grave injustice and hence requires ttsibeel' reconsidered as a substantial question of law by this C'o_Lai'it.
8. Given the above facts and circumstances, to hold that the lower appellate court has not considered the averments in l.As. 5 and 7 merely on the footing that no elaborate"reasons have been assigned seems to be untenable.
however brief, if could support. thefdecision,7,it c;:anr'1o_t_ besaid. that there was non--ct)riside1'ation_ of the reievttiit.-".le_§;al°posit'ion'=. in addressing a particular ttpplicatioril.' As in theliitistant case, the lower appellate court no_l:dt)ubt l=_ra.s"~-rejleeted the applications while assigning rief r'e:1sorisrithis"by_itselfeaxnnot give rise to a substantial __que's:t.t_io1t1,..'ot"'law_'whic.h»requi.res to be answered by this t:ou-rt.i' ln'any.'e'irerrt,_i"'ft)i"the record, it would be useful to referto tl'ie"~law._a.s l'a_id*°(J()w1i by the Supreme Court with rfefie-tieziee to..&Oi'dei'l"X'XfEII Rule 3 ofCPC, in Bl1rmpcirl'rv's case. as of' that case were that the respondents before the S'trpr'erni;:' C.t)f=.=i1*t had filed the suit against respondents 3 and 4 tlter*ein'*who were the defendants. The relief sought was for
7.i.njL11'ictit)n against defendants from establishing and running a flour mill on their property and further restraining them from disturbing the plaii1tift's' exclusive user of a pathway lying between the properties of the plai_nt.iffs and the del'e:1d.a:1ts;._4i_iThe trial court decreed the suit holding that the pla:4i'r:r*tit'tis:l'l:iacl exclusive right of user over the pathway 'and it alsc.i:'aeL_-epteo'5~ the prayer for injuneting the defendants'if1'o'i.n establjishivng 1'""1--oui*~,V mill. On appeal, the appellate to the pathway and noexelluslve right of user of the pathway aridvalliprthel-rparties' entitled to use the same as c()in:l'-ton a second appeal was pileferred' befo1'e..ttie _lll~l.il_lz'ij__Ct>Lir't and the appellants filed an applicationltmtlerQrtlerl Xxlli Rule 1(3) of the CPC. seeking pe'1'ntisé>;'inra"of the court to withdraw the suit with leave to tile a .fre'sh1svtt.i:ta._l lltwas claimecl in the application that no prayer for deC*l;n'a--.tionof plaintiffs" title over the path--way was made in the 2 "pla.i4_nt and in View of the cloud raised against their very title Igmd right of user in the judgment of the lower appellate court, it was necessary to withdraw" the suit and file a trash suit and seek appropriate relief. The application was allowed by the High Court. The parties were before the Supreme Court w:heife.i.ri»v,it was contended that when the second appeal V' admitted. the application could not have bleenve'nte-rtained.ar1d'Vthe« same could not have been allowed' by._tlte Higl'tV*l- Court asu'i'.»r_).*x substantial question of law was framed in pro'ce.edi'ng to consider the second appeal. However', it w_;t.~;i by the respondents before the Supiferrte Co'Lit9t""th¥atappli.;:a'tit)n was heard at was prematui'e and.'V"it..was"we"ll_. within the discretion of the court to grant such p'eitmi--ssi'otti'o1' withdrawal of the suit. it was this debatte3--f"tliatt._was decided by the Supreme Court in the above "Wliile extracting the text of Order XXIII Rule 1 of the " which is also extracted herein for ready reference, "ORDER XXIII Wit/m'rcnml and Ac/j1.z.s'I1-nmr 0fS11iI.s' (1) AI cm.)-' Imrci after #28 imrirtitiorz of (1 :8':{f1";.'.. 'VII"'.'i.'"',. /.n'ain.:{f_i' may cm' aguim'I cu'! or (my of fine .défiJr-1.d§U:.f5''A . abcmrlon I'-1113' wt! m"al)cu1clrm ca pc.!r1_r.)f1'1.i.s' c.'lr-u'}77i;"' "
Prm.'icIecf rim! w/wrc' I/1.9 ,IJlczi:1z[fl'i,s' £:V:'z1"[.I_1()'r or tJf1'1er.,I)«3r'.§':.{fz'~_. In nr/mm II'-M pr(m'.s'.im:,x' (-()r':n.r..!'_VI.i':;'<..1' in R.§.1!e,s' 1. go 4'.<;_]"01fc!:?I' XXII exiel-vcl, neirfzer I/[ca .miI a1():"a;u_\' --pc.1rI Qf' .410 (':'(lfI}§1. mail be (I/)(.H'l(l'()II('(I' H-'t'If'.vn;_u_f ifu-' let;vc{_Q/"iV!'4_;"VCmgri. (3) W/lest? (I18 C:'9'l'!'I'f V (ct) _rVii%1t 'f:éi'z.s'-.';r':: of x(_)n1e for!-nae' ¢'1'c{'kJc*!,::..<;_vr' ' 4. ' a u ' V { 1'2)' """ ti' ('fr-.<{ ;§-:.é[fFc}it5nr*g;f:r'()unc!.s' for (allowing the [)l'Ev'!_fl'I.I'§K'[(].l rfov fl gm'; for the .s'ul)jc%c'I--murmr of a .w.u'f m:,:9cu'I r)f'--m! (''''{c1i:-11. "' ' ;1':'~ r:j.!c1_\u Or:.,.s'L'1z"s'i Iemt.s' us" if II'-zmlcs _/If, _:grcmI the p:.'c.!irzI1_';ff' 'Vf)£'5£'"r".§l[.\';'£iA()I'1 In it*i'r'i"Iti;'cm'fimrz .s':.m'-1 mi! ruxs't.1c'lz pm-"I Q/'II'1c% " ".('[i:[lfi' xi-L"iMI/A'i"Z--i_l)c';'I'\' I0 mxrirure c1Af'1-'es/1 .miI in re..spec'I of {I16 . W.;x't.1f§}}.-'c'_f~.1-vmfier' 0_/"ma"/1 mil or sue/1 par! ofrhe (-lam.
A 4} ~ j..--Wi1erz= {he P!c'ti:1.Ii{f§~ (av) al)cma'm1.s' (my mi! or part n_f'c'1cu'n1. uncler .x'u/9»r:.z.lce I or 19 (/9) wt'Ih(z'rc.1w.s"fkvm (1 suit or pm'! Ufa c'laimr H-'it/mul the pcernu'.s'.s'ir).-1 rc{fiw'r€cl' In in -.s'u/1-H:/c? (3) he ,s'l'-zcu'/ be liabfze _/"or .s'u(:!r_ m.s'I.s' us I/?(' muri r-nu)' m-vcu'c/ and .s'/1c.:f/V.-he ;)rc».c.~[uc1ecz' fmin 1':-z..s'Iz'IuIing c.rr2_\.{f'}'().s'f2. suii in re,s'pe(.'I 1 szI/2jecI--r-nc'1IIm' or .mc'/1 par! (J"f"I/16' c'l'm'm. ' the Supreme Court held that tllev-R1':i*e--.mal_l<es 'la':.Lli:§tiv11CuIi(S:1 between absolute withdrawal which ls:.__te--:fmed ah-.21i:3a:1'd(5a'1u1elu~_ and withdrawal, with {he pe1':"li'ias§ilc>:1 of"'the°*e(;u1'f., This is maintained throughout' the s.ul5s.--£_lt1ue:l Rule by making appropriate changes in El1.e..w_o--:di'n_g Vr,;)f"l\la.:*i()"aLs*- Sub~rules of Rule l. While explainéfi§;--_V_tl'1<%1leg~islatlvefpoiieylland the scope of the Rule. "wit'l1 :'ete;:é;'r:ee»a._f(;._.Vll'seve1'al decided cases. namely, Balk/'1fc_m4'cnl7°Si::;;!;r_';..'s.AA*--.Sc3z':<{h Kuur, (/9<)(>)l1 SCC /67 and E.x*e.c.;i.1réT.x='.0 Qfi"'i<.'er klfffitu-1.51.5'uramr Ternple vs. R.Sczr/2_mm.00rrh_§.*, the Supreme Court has pronounced as f0i'l'{--)\2vs.,_':"--' "16. From the m':3m~'e it ({[)pé.'({I'.5' I/mt' {fie cl;_)pmm:'/'1 of the High Com'! wczs I/rm {fie pfcu':1Il_"[j".w'm:.u'u' /'IC!$--'(-' ;)r'ct_l'ee(l' _/{or (/('(.'[(II'(Ifi()II (J)/'Ill./C.' ll-'/IR'/T thcfiv hrcrd mrziliecf I0 z'nc.'!m:1€ Hence it is the discretion of the court to either allow or to reject an application under Order XLI Rule 27 of this case, the lower appellate court liawing .;ts';sig11e'dtii"brief ' reasons as to why it does not c.eoe'm~i.t iiit toil'allow--.};uevh application, it cannot be said that there7._Was no1i--Cvonsi'de1'ati'o'1--i.%(.i'f,V the said l.A.no.5 for valid 1'ea1s()ns..iii're_ieCtiiiig l.'l'iCi'iSE1lll6. Hence, there is no ground 1nade----.out by the ,iié1ppeVll'ants. The substantial questions of la\N=--l"l'a11]eVl'"2ii7'::':tCiC*t')«l'Clin§l}/'ii'n.SW€l'£:d against the uppe l lants. Tliie a}3i_pe.z1l'r :etja_i_iCi di s'i1ii'ssed,. sdi "j-115.93 i ii'rV