Karnataka High Court
Smt. L. A. Premaleela vs Sri. L. A. Nanjunda Rama Setty on 18 August, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/8
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE DR. JUSTICE VINEET KOTHARI
WRIT PETITION NO.8466 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. L. A. PREMALEELA
W/O. LATE L. ASHWATHAIAH SETTY,
AGED 76 YEARS.
2. SRI L. A. SHAMASUNDAR
S/O. LATE L. ASHWATHAIAH SETTY,
AGED 47 YEARS.
BOTH ARE RESIDING AT NO.408,
ELEMALLAPPA ROAD,
BANGARPET.
... PETITIONERS
(BY SRI J.G. CHANDRA MOHAN, ADV.)
AND:
1. SRI L. A. NANJUNDA RAMA SETTY
S/O. LATE L. ASHWATHAIAH SETTY,
AGED 63 YEARS.
2. SRI L. A. RAGHAVENDRA KUMAR
S/O. LATE L. ASHWATHAIAH SETTY,
AGED 51 YEARS.
3. SMT. L. N. REAVATHI
W/O. SRI NANJUNDA RAMA SETTY,
AGED 59 YEARS.
4. SMT. ANITHA
W/O. SRI RAGAVENDRA KUMAR,
AGED 51 YEARS.
Date of order: 18-8-2018
W.P. No.8466/2017
Smt. L.A. Premaleela and another
vs.
Sri L.A. Nanjunda Rama Setty and others
2/8
RESPONDENT NOS.1 TO 4 ARE
RESIDING AT NO.3184,
DANDU ROAD, BEHIND KEB,
BANGARPET.
5. SMT. SAROJA LAKSHMI
W/O. SRI B.C. RAMPRASAD,
C/O. M/S. RAJESHWARI ENTERPRISES,
AGED 56 YEARS,
NEAR SHARDAHA TALKIES,
KOLAR.
6. SMT. K.S. PADMAVATHI
W/O. SRI K.R. SRINIVAS,
AGED 47 YEARS,
NO.9-1-30, BT COMPOUND,
RAILWAY ROAD,
HINDUPUR (AP).
7. SMT. S. BINDU MADHAVI
W/O. SRI L.A. SHAMSUNDER,
AGED 44 YEARS,
NO.408, ELEMALLAPPA ROAD,
BANGARPET.
8. SMT. ANUSUYA DEVI
W/O. GOPALAKRISHNA,
AGED 68 YEARS,
POODHISETTIHALLI VILLAGE,
TEKAL HOBLI,
MALUR TALUK.
9. SMT. SHILPAKALA
W/O. RAMESH,
AGED 39 YEARS,
POODHISETTIHALLI VILLAGE,
TEKAL HOBLI,
MALUR TALUK.
Date of order: 18-8-2018
W.P. No.8466/2017
Smt. L.A. Premaleela and another
vs.
Sri L.A. Nanjunda Rama Setty and others
3/8
10. SRI SYED AFROZ PASHA
S/O. SYED ABDUL AZEEZ,
AGED 59 YEARS,
NO.2340, 3RD CROSS ROAD,
POOL-SHA-MOHALLA,
KOLAR.
... RESPONDENTS
(BY MS. RAKSHITA V.N., ADV., FOR SRI K. RAGHAVENDRA RAO,
FOR R-1 & 2;
R-3 TO 7 AND 10 ARE SERVED, BUT UNREPRESENTED;
NOTICE TO R-8 & 9 IS DISPENSED WITH VIDE
ORDER DATED 21-6-2017)
***
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER OF
THE SENIOR CIVIL JUDGE AND PRINCIPAL J.M.F.C., K.G.F., IN
O.S. NO.19 OF 2009, ON I.A. NO.19 UNDER ORDER XVI RULES 1, 2
& 4 R/W. SECTION 151 OF THE C.P.C. SEEKING FOR SUMMONING
THE COMMERCIAL TAX OFFICER, DATED 28-1-2017 AS PER
ANNEXURE-A TO THE PETITION.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Mr. J.G. Chandra Mohan, Adv. for petitioners Ms. Rakshita V.N., Adv., for Mr. K. Raghavendra Rao, for respondent Nos.1 and 2 The Plaintiffs, mother and son, have filed this writ petition under Article 227 of the Constitution of India in this Court on 23-2-2017 aggrieved by the order dated Date of order: 18-8-2018 W.P. No.8466/2017 Smt. L.A. Premaleela and another vs. Sri L.A. Nanjunda Rama Setty and others 4/8 28-1-2017 passed by the Trial Court on I.A. No.19 in O.S. No.19 of 2009 filed for partition and separate possession including the schedule property, which according to them is joint family business carried on earlier by Late L. Ashwathaiah Shetty.
2. The reasons assigned by the learned Trial Court for rejecting the application filed under Order 16 Rules 1, 2 and 4 of the Code of Civil Procedure are quoted below for ready reference;
"8. From the materials available on record, it is evident that the plaintiffs are questioning the transfer of VAT registration to the name of first defendant from the name of Late L. Ashwathaiah Setty. The PW1 in his cross examination has deposed that the defendants have cancelled licence of Shamsundar Provision Store on 27-04-2005. He has denied that first defendant started the business in said premises afresh. The PW1 has denied the letter dated 27-4-2005 purported to have written by L. Ashwathaiah Setty to the Date of order: 18-8-2018 W.P. No.8466/2017 Smt. L.A. Premaleela and another vs. Sri L.A. Nanjunda Rama Setty and others 5/8 Commercial Tax Officer. The plaintiffs have stated that the Commercial Tax Officer has issued to a letter dated 19-02-2013 stating that the documents pertaining to Shamsundar Provision Stores are not available. In such circumstances, issuance of summons as prayed under I A No 19 serves no purpose. The burden is on the defendants to prove that the VAT registration was transferred to the name of first defendant as per alleged letter dated 27-04-2005 written by Late L. Ashwathaiah Setty. The plaintiffs have filed the present application with a view to delay the proceedings. Hence the application filed by plaintiffs deserves to be dismissed. Accordingly I answer Point No.1 in the NEGATIVE.
9. Point No.2: In view of the findings on Point No.1, I pass the following:
ORDER I.A. No.19 filed Under Order XVI Rule 1, 2 and 4 R/w section 151 of CPC by the plaintiffs is hereby dismissed.
Date of order: 18-8-2018 W.P. No.8466/2017 Smt. L.A. Premaleela and another vs. Sri L.A. Nanjunda Rama Setty and others 6/8 The parties are directed to bear their respective costs."
3. Mr. J.G. Chandra Mohan, the learned counsel appearing for the petitioners - Plaintiffs, has urged before this Court that since the VAT registration of the family business of M/s. Shamsundar Provision Stores was fraudulently changed in the name of Defendant No.1, Mr. L.A. Nanjunda Rama Shetty and therefore, in order to prove its case during defendants' evidence, in the present suit, the Plaintiffs filed an application, namely I.A. No.19 under Order 16 Rules 1, 2 and 4 of the Code of Civil Procedure to issue summons to the Commercial Tax Officer to produce all the documents pertaining to the change of proprietorship of M/s. Shamsundar Stores and the letter dated 27-4-2005 written by Late L. Ashwathaiah Setty for transfer of the VAT registration in favour of Defendant No.1 - respondent No.1, Mr. L.A. Nanjunda Rama Setty (wrongly typed in the cause-title of the plaint as Mr. L.A. Nanjunda Rama Reddy).
Date of order: 18-8-2018 W.P. No.8466/2017 Smt. L.A. Premaleela and another vs. Sri L.A. Nanjunda Rama Setty and others 7/8
4. On the other hand, Ms. Rakshita V.N. appearing for Mr. K. Raghavendra Rao, the learned counsel appearing for respondent Nos.1 and 2 - Defendant Nos.1 and 2, has submitted before this Court that it is for the Defendants to prove that the VAT registration was transferred to the name of Defendant No.1, on the basis of letter dated 27-4-2005 written by Late L. Ashwathaiah Setty and therefore, the Plaintiffs cannot insist of such protection on the letter dated 27-4-2005.
5. Having heard the learned counsel for the parties, this Court is satisfied that the impugned order does not call for any interference. It is for the respondents - defendants to prove their own case in accordance with law. The registration of the firm in the present case stands in the name of Defendant No.1 and they want to prove their case based on the letter by the proprietor, Late L. Ashwathaiah Shetty. The Plaintiffs are also free to adduce their own evidence in accordance with law.
Date of order: 18-8-2018 W.P. No.8466/2017 Smt. L.A. Premaleela and another vs. Sri L.A. Nanjunda Rama Setty and others 8/8
6. Therefore, the order passed by the learned Trial Court does not call for any interference in the present petition. Accordingly, writ petition is dismissed.
No costs.
Sd/-
JUDGE kvk