Karnataka High Court
Smt Shanthamma vs K S Krishna Since Dead By Lrs on 3 June, 2016
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2016
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
WRIT PETITION NO.38076/2015 C/W WRIT PETITION
NOS.40521/2015 AND 38476/2015(GM-CPC)
IN WRIT PETITION NO.38076/2015
BETWEEN
1. SMT SHANTHAMMA
W/O LATE NAGARAJ,
AGED ABOUT 64 YEARS
2. BORAPPA @ K N YESHVANTH KUMAR
S/O LATE NAGARAJ,
AGED ABOUT 45 YEARS
3. DAKSHAYANI
D/O LATE NAGARAJ,
AGED ABOUT 47 YEARS
4. KUM LATHA
D/O LATE NAGARAJ,
AGED ABOUT 48 YEARS
ALL ARE R/AT NO.1253,
DR AMBEDKAR ROAD
KRISHNAMURTHYPURAM
MYSORE-570 004. ... PETITIONERS
(BY SRI G KRISHNAMURTHY, SR. ADV.
FOR SRI SRIKANTH PATIL K, ADV.)
2
AND:
1. K S KRISHNA
SINCE DEAD BY LRS
1(A). M KAMALAMMA
AGED ABOUT 74 YEARS
W/O LATE K B KRISHNA
1(B). K PADMANABHA
AGED ABOUT 53 YEARS
S/O LATE K B KRISHNA
1(C). LOKESH
AGED ABOUT 51 YEARS
S/O LATE K B KRISHNA
1(D). K PRAKASH
AGED ABOUT 52 YEARS
S/O LATE K B KRISHNA
1(E). K JAGADISH
AGED ABOUT 50 YEARS
S/O LATE K B KRISHNA
1(F). K SATHISH
AGED ABOUT 41 YEARS
S/O LATE K B KRISHNA
ALL ARE R/AT NO.613/5-6, CHAMARAJA
DOUBLE ROAD, MYSORE-570 024
1(G). SMT K GAYATHRI
SINCE DEAD BY HER LRS
1(G)(I). S TEJAS
S/O LATE GAYATHRI
AGED ABOUT 24 YEARS
3
1(G)(II). SRI CHIRANTH
S/O LATE GAYATHRI
AGED ABOUT 22 YEARS
1(G)(III). K S SHIVAKUMAR
S/O SWAMYGOWDA
AND HUSBAND OF LATE GAYATHRI
AGED ABOUT 62 YEARS
1(G)(I) TO 1(G)(III) ARE
R/AT NITI MARG
SIDDARTHANAGAR,
MYSORE-570 011.
2. K B BORAIAH
AGED ABOUT 78 YEARS
3. K B KUCHELA
AGED ABOUT 67 YEARS
4. M S BALARAJ
AGED ABOUT 64 YEARS
5. SMT.LAXMAMMA
W/O LATE M.B.BASAVAIAH,
SINCE DEAD BY LRS
SL.NO.2 TO 5 ARE
S/O LATE M B BASAVAIAH
R/A NO.2644-45, III CROSS,
K G KOPPAL
MYSORE-570 009.
6. SMT.PUTTATHAYAMMA @ BORAMMA
SINCE DECEASED BY L.RS.
6(A). B.J.MASTIGOWDA,
S/O LATE JAVAREGOWDA,
4
SINCE DEAD BY LRS,
6(B). B.M.MANJUNATH,
S/O B.J.MASTIGOWDA,
AGED ABOUT 67 YEARS,
6(C). SMT.B.M. RENUKA
D/O B.J.MASTIGOWDA,
AGED ABOUT 68 YEARS,
6(D). B.M.ESHAPRAKASH
S/O B.J.MASTIGOWDA,
AGED ABOUT 66 YEARS,
6(E). SMT.B.M. GAYATHRI
D/O B.J.MASTIGOWDA,
AGED ABOUT 63 YEARS.
6(F). SMT.B.M. UMA
D/O B.J.MASTIGOWDA,
AGED ABOUT 61 YEARS,
6(A) TO 6(F) ARE
R/AT NO.2, 5TH MAIN,
PARAMAHAMSA ROAD,
YADAVGIRI, MYSORE-570 002
7. SMT.K.B.AMMAIAHAMMA
@ KEMPAMMA,
AGED ABOUT 68 YEARS,
W/O SHESHAPPA,
R/AT THENKAN KOPPAL,
BELIKERE HOBLI,
MYSORE TALUK-571 103.
8. SMT.K.B.LAKSHMAMMA
AGED ABOUT 68 YEARS,
W/O S.T.KRISHNA,
R/AT SALIGRAMA TOWN,
5
K.R.NAGAR TALUK-571 604.
9. SMT.K.B.KAMAKSHI
AGED ABOUT 67 YEARS,
W/O GOVINDAPPA,
R/AT GUNGRAL CHATRA,
YELWAL HOBLI,
MYSORE TALUK-571 130.
10. SMT. M.B. RADHA
AGED ABOUT 62 YEARS,
W/O RAJASHEKARAPPA,
R/AT SALIGRAMA TOWN,
K.R.NAGAR TALUK-571 604
11. SMT.M.B.LALITHA
W/O LATE SRINIVASA,
SINCE DEAD BY LR
11(A). SMT PADMINI,
D/O LATE SRINIVASA,
AGED ABOUT 45 YEARS,
R/AT PLOT NO.103,
SRINIDHI APARTMENT,
KAMAKSHI HOSPITAL ROAD,
SARASWATHIPURAM,
MYSORE-560 009.
12. BORAIAH
S/O LATE BASAVAIAH,
AGED ABOUT 89 YEARS,
R/AT NO.2770-71-72/CH.21,
SARASWATHIPURAM,
MYSORE-570 009.
13. M.B.BALACHANDRA
@ CHIKKABORAIAH,
AGED ABOUT 70 YEARS,
S/O LATE BORAIAH,
6
R/AT NO.1131/2,
VANI VILAS ROAD
II MAIN, KRISHNAMRUTHYPURAM
MYSORE-570 009.
14. C.RAMAKRISHNA
S/O LATE CHIKKANNA,
AGED ABOUT 63 YEARS,
III CROSS, K.G. GOPAL
MYSORE-570 009.
15. SMT.LAKSHMAMMA
W/O LATE CHIKKANNA,
DEAD BY HER LRS,
(A) CHIKKATHAYAMMA,
W/O RAJANNA,
AGED ABOUT 60 YEARS,
R/AT NAVILUR,
SANAGANOOR POST,
CHAMARAJNAGAR TALUK,
CHAMARAJNAGAR DISTRICT-571 124.
(B) RUKMINI
W/O VARADARAJU,
AGED ABOUT 59 YEARS,
R/AT NO.4613, 3RD CROSS,
N.R.MOHALLA,
MYSORE-570 007.
(C) JAYALAKSHMI
W/O ANANTHEGOWDA,
AGED ABOUT 58 YEARS,
R/AT NO. 5/3, TREASURER COLONY,
BOGADI, II STAGE,
MYSORE-570 009.
(D) C.RAMAKRISHNA
S/O LATE CHIKKANNA,
7
AGED ABOUT 57 YEARS,
R/AT NO.2349,
PAMPAPATHI ROAD,
OPP-CHAMARAJAPURAM RLY,
STATION, K.G.KOPPAL,
MYSORE-570 009.
(E) C.SIDDAIAH
S/O LATE CHIKKANNA,
SINCE DEAD BY LRS,
(1) SMT.SUNANDA,
W/O LATE C.SIDDAIAH,
AGED ABOUT 58 YEARS,
(2) C.CHANDRASEKHAR
S/O LATE C.SIDDAIAH,
AGED ABOUT 40 YEARS,
(3) SMT.S.NIRMALA
D/O LATE C.SIDDAIAH,
AGED ABOUT 38 YEARS
R/A NO.1/02/1, B.M.ROAD
12TH CROSS, KUVEMPU NAGARA
CHANNAPATNA-562160
BANGALORE DISTRICT,
(4) SOMASHEKAR
S/O LATE C.SIDDAIAH,
AGED ABOUT 36 YEARS,
15(E) (1) TO (4) ARE R/AT NO.2349
PAMPAPATHI ROAD
OPP-CHAMARAJAPURAM RLY.
STATION, K.G. KOPPAL
CHAMARAJPURAM
MYSORE-570 009.
8
16. M.B.GOPAL
S/O LATE BORAIAH,
SINCE DEAD BY LR
16(A) INDUMATHI,
W/O LATE M.B.GOPAL,
SINCE DEAD BY LRS,
16(B) THIRTHA PRASAD,
AGED ABOUT 35 YEARS,
16(C) BANUPRASAD
AGED ABOUT 32 YEARS,
16(D) KANYAKUMARI
AGED ABOUT 29 YEARS,
ALL ARE SONS AND DAUGHTER
OF LATE M.B.GOPAL,
R/AT NO.2862, CH-7,
BEHIND LAW COURT,
SARASWATHIPURAM,
MYSORE-570 009. ... RESPONDENTS
(BY SRI C SHASHIKANTHA, ADV. FOR R-16(A TO D)
V/O DTD 17/12/15 NOTICE TO R-1(G)(I TO III), R-3,
R-6(A-F), R-8 TO R-11(A), R-15(C) ARE DISPENSED
WITH V/O DATED 23.2.16, R-1 TO R-4 AND R-6 TO R-
11 ARE TREATED AS LRS OF DECEASED R-5 AND
ISSUANCE OF NOTICE TO R-13 IS DISPENSED WITH
SRI KIRAN J, ADV. FOR R-15(A) R-1(A) TO R-1(D),
R-1(F), R-2, R-4, R-7, R-12, R-13, R-14 ARE SERVED
AND UNREPRESENTED, R-15(B), R-15(D), R-15(E)(1 TO
4) ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS IN FDP NO.6/1998 ON THE
9
FILE OF THE PRL. JUDGE, SMALL CAUSES AND
SENIOR CIVIL JUDGE, MYSURU AND ETC.
IN WRIT PETITION NO.40521/2015
BETWEEN
B BORAIAH
S/O LATE BASAVAIAH
AGED ABOUT 92 YEARS
R/AT NO.2770-71-72/CH-21
SARASWATHIPURAM
MYSORE-570 009. ... PETITIONER
(BY SRI SANDESH J CHOUTA, ADV.)
AND:
1. M.G. THIRTHAPRASAD
S/O LATE M.B.GOPAL
AGED ABOUT 33 YEARS
R/AT D.H.NO.2862
CH-7, BEHIND LAW COURT
SARASWATHIPURAM
MYSORE-570 009.
2. K.S. KRISHNA
SINCE DEAD BY LRS
A. M KAMALAMMA
AGED ABOUT 74 YEARS
B. K PADMANABHA
AGED ABOUT 53 YEARS
C. LOKESH
AGED ABOUT 51 YEARS
D. K PRAKASH
AGED ABOUT 52 YEARS
10
E. K JAGADISH
AGED ABOUT 50 YEARS
F. K SATHISH
AGED ABOUT 41 YEARS
G. SMT K GAYATHRI
SINCE DEAD BY HER LR.S
1.G.(I) S TEJAS
S/O LATE GAYATHRI
AGED ABOUT 24 YEARS
1.G.(II) SRI CHIRANTH
S/O LATE GAYATHRI
AGED ABOUT 22 YEARS
1.G.(III) K S SHIVAKUMAR
S/O SWAMYGOWDA AND
HUSBAND OF LATE GAYATHRI
AGED ABOUT 62 YEARS
1.G.(I) TO 1.G.(III) ARE R/AT
NITI MARG, SIDDARTHANAGAR
MYSORE.
ALL ARE WIFE, SONS AND DAUGHTER OF
LATE K.B. KRISHNA
R/AT NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-570 024.
3. K.B. BORAIAH
AGED ABOUT 78 YEARS
4. K.B. KUCHELA
AGED ABOUT 67 YEARS
5. M.S. BALARAJ
11
AGED ABOUT 64 YEARS
6. SMT. LAXMAMMA
W/O LATE M.B. BASAVAIAH
SL. NOS. 3 TO 6 ARE SONS OF
LATE M.B. BASAVAIAH
R/AT NO.2644-45
III CROSS, K.G. KOPPAL
MYSORE-570 009.
7. SMT. PUTTATHAYAMMA
@ BORAMMA
SINCE DEAD BY L.R.S
7(A). B.J. MASTIGOWDA
S/O LATE JAVAREGOWDA
SINCE DEAD BY L.R.S
7(B) B.M. MANJUNATH
S/O B.J. MASTIGOWDA
AGED ABOUT 67 YEARS
7(C) SMT. B.M.RENUKA
D/O B.J. MASTIGOWDA
AGED ABOUT 68 YEARS
7(D) B.M. ESHAPRAKASH
S/O B.J. MASTIGOWDA
AGED ABOUT 66 YEARS
7(E) SMT B M GAYATHRI
D/O B.J. MASTIGOWDA
AGED ABOUT 63 YEARS
7(F) SMT B M UMA
D/O B.J. MASTIGOWDA
AGED ABOUT 61 YEARS
12
6(A) TO (F) ARE R/AT NO.2
5TH MAIN
PARAMAHAMSA ROAD
YADAVAGIRI
MYSORE-560 002.
8. SMT K B AMMAIAHAMMA
@ KEMPAMMA
AGED ABOUT 68 YEARS
W/O SHESHAPPA
R/AT THENKAN KOPPAL
BELIKERE HOBLI
MYSORE TALUK-571 103.
9. SMT K B LAKSHMAMMA
AGED ABOUT 68 YEARS
W/O S T KRISHNA
R/AT SALIGRAMA TOWN
K.R. NAGAR TALUK-571 604.
10. SMT K B KAMAKSHI
AGED ABOUT 67 YEARS
W/O GOVINDAPPA
R/AT GUNGRAL CHATRA
YELWAL HOBLI
MYSORE TALUK-571 130.
11. SMT M B RADHA
AGED ABOUT 62 YEARS
W/O RAJASHEKARAPPA
R/AT SALIGRAMA TOWN
K.R. NAGAR TALUK-571 604.
12. SMT. M B LALITHA
W/O LATE SRINIVASA
SINCE DEAD BY L.R
12(A) SMT. PADMINI
D/O LATE SRINIVASA
13
AGED ABOUT 45 YEARS
R/AT PLOT NO. 103
SRINIDHI APARTMENT
KAMAKSHI HOSPITAL ROAD
SARASWATHIPURAM
MYSORE-560 009.
13. M.B. BALACHANDRA
@ CHIKKABORAIAH
S/O LATE BORAIAH
SINCE DECEASED BY L.RS.
13(A) PUTTATAYAMMA
W/O M.B. BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 77 YEARS
13(B) M B NARENDRA BABU
S/O LATE M B BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 58 YEARS
13(C) M B CHANDRASHEKAR
S/O M.B. BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 54 YEARS
13(D) GEETHA
W/O LATE SUNDHAR
D/O M.B. BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 56 YEARS
13(E) SMT YOGANANDINI
W/O GANESH
D/O M.B. BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 52 YEARS
14
13(F) SMT SARASWATHI
W/O RAMANAND
D/O M.B. BALACHANDRA
@ CHIKKABORAIAH
AGED ABOUT 50 YEARS
ALL ARE RESIDENTS OF
NO.207/S, 1 B CROSS
4TH MAIN ROAD, 1ST BLOCK
RAMAKRISHNANAGAR
MYSORE-570 022
R/AT NO.1131/2, VANI VILAS ROAD
II MAIN, KRISHNAMURTHYPURAM
MYSORE-570 009.
14. C RAMAKRISHNA
S/O LATE CHIKKANNA
AGED ABOUT 63 YEARS
R/AT D.NO.2644-45
III CROSS, K.G. KOPPAL
MYSORE-570 009.
15. SMT LAKSHMAMMA
W/O LATE CHIKKANNA
DEAD BY HER LRS
A) CHIKKATHAYAMMA
W/O RAJANNA
AGED ABOUT 60 YEARS
R/AT NAVILUR
SANAGANOOR POST
CHAMARAJNAGAR TALUK
CHAMARAJNAGAR DISTRICT-571 124.
B) RUKMINI
W/O VARADARAJU
AGED ABOUT 59 YEARS
R/AT NO.4613, 3RD CROSS
15
N.R. MOHALLA
MYSORE-570 007.
C) JAYALAKSHMI
W/O ANANTHEGOWDA
AGED ABOUT 58 YEARS
R/AT NO.5/3, TREASURER COLONY
BOGADI, II STAGE
MYSORE-570 009.
D) C RAMAKRISHNA
S/O LATE CHIKKANNA
AGED ABOUT 57 YEARS
R/AT NO.2349
PAMPAPATHI ROAD
OPP-CHAMARAJAPURAM RLY.
STATION, MYOSRE-570 009.
16. C SIDDAIAH
S/O LATE CHIKKANNA
SINCE DEAD BY LRS
16(A) SMT. SUNANDA
W/O LATE C SIDDAIAH
AGED ABOUT 58 YEARS
16(B) C CHANDRASEKHAR
S/O LATE C SIDDAIAH
AGED ABOUT 40 YEARS
16(C) SMT S NIRMALA
D/O LATE C SIDDAIAH
AGED ABOUT 38 YEARS
R/AT NO.1/02/1, B.M. ROAD
12TH CROSS, KUVEMPU NAGARA
CHANNAPATNA-562 160
BANGALORE DISTRICT.
16(D) S SOMASHEKAR
16
S/O LATE C SIDDAIAH
AGED ABOUT 36 YEARS
16(A) TO (D) ARE
R/AT NO.2349
PAMPAPATHI ROAD
OPP-CHAMARAJAPURAM RLY.
STATION, K.G. KOPPAL
CHAMARAJPURAM
MYSORE-570 009.
17. M.B. GOPAL
S/O LATE BORAIAH
SINCE DEAD BY LRS
A. INDUMATHI
W/O LATE M B GOPAL
SINCE DEAD BY LRS
B. BANUPRASAD
AGED ABOUT 32 YEARS
C. KANYAKUMARI
AGED ABOUT 29 YEARS
17 (A) TO (C) ARE CHILDREN OF
LATE M B GOPAL
R/AT NO.2862, CH-7
BEHIND LAW COURT
SARASWATHIPURAM
MYSORE-570 009.
18. SMT SHANTHAMMA
@ K N LAKSHMISHANTHA
W/O LATE NAGARAJ
AGED ABOUT 64 YEARS
19. BORAPPA @ K.N. YESHVANTH KUMAR
S/O LATE NAGARAJ
17
AGED ABOUT 45 YEARS
21. KUM. LATHA @ K N LOKESHWARI
D/O LATE NAGARAJ
AGED ABOUT 48 YEARS
ALL ARE R/AT NO.1253
DR. AMBEDKAR ROAD
KRISHNAMURTHYPURAM
MYSORE-570 004. ....RESPONDENTS
(BY SRI C SHASHIKANTHA, ADV. FOR C/R1 V/O
DATED 02.03.2016 SERVICE OF NOTICE TO R-2 TO R-
21 ARE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS IN F.D.P.NO.06/1998 OF THE
COURT OF THE PRINCIPAL JUDGE, SMALL CAUSES
AND SENIOR CIVIL JUDGE, MYSURU.
IN WRIT PETITION NO.38476/2015
BETWEEN:
1. SMT.KAMALAMMA
W/O LATE K B KRISHNA
AGED ABOUT 75 YEARS
R/ AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009.
2. SRI K SATISH
S/O LATE K B KRISHNA
AGED ABOUT 40 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009.
18
3. SRI K B BORAIAH
S/O LATE M B BASAVAIAH
AGED ABOUT 83 YEARS
RESIDING AT NO. 2644/45
3RD CROSS, K G KOPPAL
MYSORE-570 009.
4. SRI K B KUCHELA
S/O LATE M B BASAVAIAH
AGED ABOUT 55 YEARS
R/AT NO. 2644/45
3RD CROSS, K G KOPPAL
MYSORE-570 009.
5. SRI M B BALARAJ
S/O LATE M B BASAVAIAH
AGED ABOUT 65 YEARS
R/AT NO. 2644/45
3RD CROSS, K G KOPPAL
MYSORE-570 009. ... PETITIONERS
(BY SRI SIDDAMALLAPPA P M, ADV.)
AND:
1. SRI. THIRTHA PRASAD
S/O LATE M B GOPAL
AGED ABOUT 30 YEARS
R/AT DOOR NO.2862
CH-7, BEHIND LAW COURT
SARASWATHIPURAM
MYSORE-570 009.
2. SRI. BANUPRASAD
S/O LATE M.B. GOPAL
AGED ABOUT 28 YEARS
R/AT DOOR NO.2862, CH-7
BEHIND LAW COURT SARASWATHIPURAM
19
MYSORE-570 009
MYSURU.
3. SMT. KANYAKUMARI
D/O LATE M.B. GOPAL
AGED ABOUT 26 YEARS
R/AT DOOR NO.2862, CH-7
BEHIND LAW COURT SARASWATHIPURAM
MYSORE-570 009
MYSURU.
4. SRI PADMANABHA
S/O LATE K B KRISHNA
AGED ABOUT 48 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
5. SRI LOKESH
S/O LATE K B KRISHNA
AGED ABOUT 46 YEARS
R/AT DOOR NO.613/5-6
BEHIND LAW COURT SARASWATHIPURAM
MYSORE-570 009
MYSURU.
6. SRI PRAKASH
S/O LATE K B KRISHNA
AGED ABOUT 44 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
7. SRI K JAGADISH
S/O LATE K B KRISHNA
AGED ABOUT 42 YEARS
R/AT DOOR NO.613/5-6
20
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
8. SMT K GAYATHRI
D/O LATE K.B. KRISHNA
SINCE DEAD BY L.R.S
(A) CHIRANTH
S/O K GAYATHRI
AGED ABOUT 20 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
(B) SRI K S SHIVAKUMAR
S/O K GAYATHRI
AGED ABOUT 18 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
9. SMT LAKSHMAMMA
DAUGHTER OF LATE K B KRISHNA
AGED ABOUT 36 YEARS
R/AT DOOR NO.613/5-6
CHAMARAJA DOUBLE ROAD
MYSORE-577 009
MYSURU.
10. SMT LAKSHMAMMA
W/O LATE M B BASAVAIAH
SINCE DEAD BY L.R.S
A. SRI B M MANJUNATH
S/O LAKSHMAMMA
AGED ABOUT 55 YEARS
21
R/AT DOOR NO.2644-45
III CROSS
K.G. KOPPAL
MYSORE-577 009
MYSURU.
B. SMT. B.M. RENUKA
D/O LAKSHMAMMA
AGED ABOUT 52 YEARS
R/AT DOOR NO.2644-45
III CROSS
K G KOPPAL
MYSORE-577 009
MYSURU.
C. SRI B.M. ESHAPRASAD
S/O LAKSHMAMMA
AGED ABOUT 50 YEARS
R/AT DOOR NO.2644-45
III CROSS
K G KOPPAL
MYSORE-577 009
MYSURU.
D. SMT. B.M. GAYATHRI
D/O LAKSHMAMMA
AGED ABOUT 46 YEARS
R/AT DOOR NO.2644-45
III CROSS
K G KOPPAL
MYSORE-577 009
MYSURU.
E. SMT. B.M. UMA
D/O LAKSHMAMMA
AGED ABOUT 40 YEARS
R/AT DOOR NO.2644-45
III CROSS
K G KOPPAL
22
MYSORE-577 009
MYSURU.
11. SMT K B AMMAIAHAMMA
@ KEMPAMMA
W/O SHESHAPPA
AGED ABOUT 68 YEARS
RESIDING THENKANE KOPPAL
BALIKERE HOBLI
MYSORE TALUK
MYSORE-570 010.
12. SMT K B LAKSHMAMMA
W/O S T KRISHNA
AGED ABOUT 65 YEARS
R/AT SALIGRAMA TOWN
K R NAGAR TALUK
MYSORE DISTRICT.
13. SMT K B KAMAKSHI
W/O GOVINDAPPA
AGED ABOUT 62 YEARS
RESIDING AT GUNGRAL CHATRA
YELWAL HOBLI
MYSORE TALUK
MYSORE .
14. SMT M B RADHA
W/O RAJASHEKARAPPA
AGED ABOUT 55 YEARS
RESIDING AT SALIGRAMA TOWN,
K R NAGAR TALUK
MYSORE DISTRICT.
15. SMT M B LALITHA
W/O LATE SRINIVASA
SINCE DEAD BY LRS
A. SMT. PADMINI
23
D/O LATE M.B. LALITHA
AGED ABOUT 32 YEARS
RESIDING AT DOOR NO. 38,
CHAMARAJA DOUBLE ROAD,
MYSORE-577 009.
16. SRI B BORAIAH
S/O LATE BASAVAIAH
AGED ABOUT 72 YEARS
RESIDING AT DOOR NO.
2770-71-72/CH-21
SARASWATHIPURAM
MYSORE-570 008.
17. SRI M B BALACHANDRA @ CHIKKABORAIAH
S/O LATE BORAIAH
SINCE DEAD BY LR'S
A. SMT. PUTTATHAYAMMA
W/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 70 YEARS
B. SRI NARENDRA BABU
S/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 50 YEARS
C. SRI SHEKAR
S/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 48 YEARS
D. SMT. GEETHA
D/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 46 YEARS
E. SMT. NANDINI
D/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 42 YEARS
F. SMT. SARASWATHI
24
D/O M.B.BALACHANDRA @ CHIKKABORAIAH
AGED ABOUT 40 YEARS
ALL ARE R/AT DOOR NO.1131/2
VANIVILAS ROAD, II CROSS
KRISHNAMURTHIPURAM
BEHIND ADULT EDUCATION OFFICE
MYSORE-570 008
MYSURU.
18. SMT SANTHAMMA
W/O LATE NAGARAJ
AGED ABOUT 50 YEARS
RESIDING AT D NO. 1253
DR AMBEDKAR ROAD
KRISHNAMURTHIPURAM
MYSORE-570 008.
19. SRI BORAPPA
S/O LATE NAGARAJ
AGED ABOUT 48 YEARS
RESIDING AT D.NO.1253
DR AMBEDKAR ROAD,
KRISHNAMURRTHIPURAM
MYSORE-570 008.
20. SMT DAKSHYANI
D/O LATE NAGARAJ
AGED ABOUT 46 YEARS
RESIDING AT D NO. 1253
DR AMBEDKAR ROAD
KRISHNAMURTHIPURAM
MYSORE-570 008.
21. KUMARI LATHA
D/O LATE NAGARAJ
AGED ABOUT 44 YEARS
RESIDING AT D NO. 1253
DR AMBEDKAR ROAD
25
KRISHNAMURTHIPURAM
MYSORE-570 008.
22. SRI RAMAKRISHNA
S/O LATE CHIKKANNA
AGED ABOUT 50 YEARS
RESIDING AT DOOR NO. 2644-45
III CROSS, K G KOPPAL
MYSORE-570 009.
23. SRI SIDDAIAH
S/O LATE CHIKKANNA
SINCE DEAD BY LRS
A. SMT. SUNANDA
W/O LATE SIDDAIAH
AGED ABOUT 60 YEARS
B. SRI CHANDRASHEKAR
S/O LATE SIDDAIAH
AGED ABOUT 40 YEARS
C. SRI SOMASHEKAR
S/O LATE SIDDAIAH
AGED ABOUT 38 YEARS
D. SMT. S. NIRMALA
D/O LATE SIDDAIAH
AGED ABOUT 35 YEARS
ALL ARE R/AT DOOR NO.2644-45
III CROSS
K G KOPPAL
MYSORE-570 009.
24. SMT CHIKKATHAYAMMA
W/O RAJANNA
AGED ABOUT 65 YEARS
R/AT NAVELUR VILLAGE
26
SANAGANOOR POST
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT.
25. SMT RUKMINI
W/O VARADARAJU
AGED ABOUT 63 YEARS
R/AT NO.4613, 3RD CROSS
N R MOHALLA
MYSORE-570 008
MYSURU.
26. SMT JAYALAKSHMI
W/O ANANTHEGOWDA
AGED ABOUT 60 YEARS
R/AT NO. T/3
TREASURY COLONY
BOGADI 2ND STAGE
MYSORE-570 010
MYSURU.
27. SRI RAMAKRISHNA
S/O LATE CHIKKANNA
AGED ABOUT 58 YEARS
R/AT NO.2349
PAMPATHI ROAD
OPP. CHAMARAJAPURAM
RAILWAY STATION
MYSORE-570 012. ... RESPONDENTS
(BY SRI. C SHASHIKANTHA, ADV. FOR R-1
V/O DATED 05.10.2015 NOTICE TO R-2 TO R-27 IS
DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER OF THE TRIAL COURT
DTD.7.8.2015 PASSED BY THE LEARNED PRINCIPAL
27
JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE,
MYSORE IN FDP NO.6/1998 VIDE ANNEX-F.
THESE WRIT PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
These three writ petitions are filed by the petitioners challenging the order dated 7.8.2015 passed by the Principal Judge, Small Causes and Senior Civil Judge Mysuru on I.A No.V in FDP No.6/1998.
2. W.P. No.38076/2015 is filed by respondent Nos.14 to 17 in RFA Crob.16/2001. W.P. No.40521/2015 is filed by defendant No.1. W.P. No.38476/2015 is filed plaintiff No.1(a), plaintiff No.1(f), plaintiff Nos.2 to 4 praying the Court to call for records in FDP No.6/1998 of the Court of Principal Judge, Small Causes and Senior Civil Judge Mysuru and to issue writ of certiorari or any other direction and to set aside the impugned order dated 7.8.2015 passed on I.A. 28 No.V in FDP No.6/1998 by the Principal Judge, Small Causes and Senior Civil Judge Mysuru.
3. The application I.A. No.V was filed by legal representatives of defendant No.2 under section 152 of C.P.C. praying the FDP Court to correct the clerical mistake crept in the order dated 22.2.2001. Along with the said application, an affidavit was filed stating that the applicant/legal representative of deceased defendant No.2 came to know that a clerical (typographical) mistake has been crept in the operative portion of the order dated 22.2.2001. The Court while granting an option (rather preference) to buy suit "C" schedule property at a price of Rs.4.32 crores to the legal heirs of deceased defendant No.2 had alternatively ordered that the "C" schedule property be divided into distinct portion as per Annexure-B to the said order. However, while referring to the alternative relief, the Court has observed that in the event of failure to pay the balance amount before the date of actual division in the "B" 29 schedule property, then the theatre has to be divided in seven shares as mentioned in Annexure-B which ought to have been shown as actual division in "C" schedule property instead of "B" schedule property and that it is apparent/clerical/typographical mistake. By going through the entire order, one can make out that the observation made in the operative portion of the order relating to the "C" schedule property had nothing to do with 'B' schedule property; in fact, regarding portion of "B" schedule property the operative portion itself is elaborate (as detailed in pages 36 to 39); the division of "B" schedule property has not been linked with the division of "C" schedule property and as such, the reference to the "B" schedule property in the operative portion of the order relating to the "C" schedule property is a typographical mistake apparent on the face of the record. As soon as this mistake came to his notice, he filed this application. The opponents have rightly construed the said order to "C" schedule property as could be seen from the appeal memorandum preferred 30 before this Court in RFA No.353/2001 and hence, prays to allow the said application. The plaintiffs/respondents and respondent No.1, 8 and legal representatives of respondent No.9 have filed their separate objections to the said application. So also, respondent No.3 has filed detailed separate objection and defendant/respondents Nos.4 to 7 have also filed their separate objection statement and sought to dismiss the said application. After considering the merits of the application I.A. No.V ultimately, the FDP Court allowed the application and ordered for correction of the decree by order dated 7.8.2015.
4. Being aggrieved by the said order, above three writ petitions are filed challenging the legality and correctness of the order passed by the FDP Court.
5. Heard the arguments of the learned counsel appearing on behalf of the writ petitioners in respect of the above three petitions and also the learned counsel 31 appearing for respondents/legal representatives of defendant No.2.
6. Sri. Krishna Murthy, learned senior advocate appearing for the petitioner in W.P.No.38076/2015 submitted that the impugned order passed by the FDP Court on I.A. No.V is not sustainable in law and it is an illegal order. The Court below has no jurisdiction to entertain the application itself seeking amendment of the judgment and decree. He further submitted that the Division bench of this Court in its judgment and order rendered in RFA No.353/2001 c/w RFA Crob.16/2001 while deciding the said appeal and cross objection has modified the order dated 22.2.2001 passed in FDP No.6/1998. He submitted that the order passed by the court below in the said FDP stood modified in view of the judgment of this Court dated 19.4.2012. After passing of the judgment and decree by the Division Bench of this Court, the final decree passed in the FDP has merged in the judgment and decree passed by this 32 Court and any corrections to be made, have to be done before this Court itself and not by the FDP Court. The learned trial judge while dealing with the FDP ought to have appreciated the said proposition and there is misreading and misinterpretation of the scope of Section 152 CPC and also about the powers of the said FDP Court in entertaining the said application. Learned Senior Advocate has submitted that the application filed seeking correction of the judgment and decree is not on the clerical/typographical error and the FDP Court has failed to appreciate that if the application is entertained and the judgment and decree is modified, it substantially affects the rights of the parties. He further submitted that there is no difficulty and ambiguity in understanding the order dated 22.2.2001 since it is mentioned in clear terms that "Alternatively, if defendant No.2 failed to own theatre and pay balance amount before the date of actual division in "B" schedule property, then said Chamundeshwari theatre has to be divided in 7 shares as mentioned in 33 Annexure-B sketch prepared by the Court". Hence it is submitted that the interpretation made by the applicant/legal representatives of defendant No.2 that it is pertaining to "C" schedule property and not "B" schedule property cannot be accepted at all. The Division Bench of this Court in its order has given clear finding regarding eviction proceedings and liberty was reserved to parties to initiate eviction proceedings in respect of "C" schedule property. The said liberty has been exercised by the sharers and the respective parties are in possession and enjoyment of their shares of the "C" schedule property. Neither defendant No.2 nor the FDP Court are competent to make different interpretation of the judgment and decree passed by the Division Bench of this Court. The application has been filed after the lapse of 13 years and hence, application was liable to be dismissed on the ground of limitation. He has also submitted that the said application was filed with malafide intention and the application lacks bonafides and accordingly, submitted to allow the writ 34 petitions and to set aside the order passed by the FDP Court.
In support of his contention learned senior counsel has relied upon the following decisions:
(i) AIR 1974 SC 1380 in the case of Gojer Bros. (Pvt.) Ltd., Vs. Shri Ratan Lal Singh.
(ii) (2006) 1 SCC 380 in the case of UPSRTC
Vs. Imtiaz Hussain
(iii) (2001) 4 SCC 181 in the case of
Jayalakshmi Coelho Vs. Oswald Joseph Coelho
(iv) AIR 1980 Kerala 76 (FB) in the case of Kannan Vs. Narayani
(v) (1999) ILR 2 Cal 564 in the case of Umapada Pal Vs. Durgesh Nandini Ghosh
(vi) MANU/PH/2951/2013 in the case Shashi Pal Vs. State of Punjab and another
(vii) 1967(2) Mys L J 317 in the case of M Koraga Shetty Vs. Sheik Abdul Latif Saheb
7. Learned counsel appearing for the petitioner in W.P. No.40521/2015 submitted that there is delay of 13 years in filing the said application and hence it is barred by the law of limitation. He also submitted that even as 35 per the doctrine of acquiescence and waiver of the rights, the legal representatives of defendant No.2 cannot maintain such application before the FDP Court.
The legal representatives of defendant No.2 are estopped under the principle of estoppel as per the provisions of Section 115 of the Evidence Act. As such, they cannot seek the amendment/modification of the decree under the guise that there is clerical/typographical mistake in the judgment and decree passed by the Court below. It is also his submission that as per the judgment and decree passed by the Division Bench of this Court in RFA and also RFA Crob "C" schedule property has already been divided between the parties and even the property extract shows the name of defendant No.1. He submitted that as per the doctrine of merger of the order of the FDP Court with the order passed by the Division Bench of this Court in RFA, the legal representatives of defendant No.2 ought to have filed such application before this Court and the application filed before the FDP Court was wrongly entertained by 36 the said Court and hence, the order passed by the FDP Court is not sustainable in law. Learned counsel further submits that he also adopts the arguments advanced by the learned senior advocate in the connected writ petition.
In support of his contention, learned counsel for the petitioner has relied upon the following decisions:
(i) AIR 1958 SC 868 in the case of
Commissioner of Income Tax Vs. M/s.
Amritlal Bhogilal
(ii) AIR 1963 SC 1124 in the case of Collector
of Customs Vs. East India Commercial
Co. Ltd.,
(iii) 1967(2) Mys. L.J. 317 in the case of M
Koraga Shetty Vs. Sheik Abdul Latif
Saheb
(iv) 1969(3) SCC 384 in the case of Somnath
Sahu Vs. The State of Orissa and others
(v) AIR 1974 PATNA 289 in the case of Somar Bhuiya Vs. Kapil Kumar Gautham
(vi) 1989(4) SCC 582 in the case of S.S.Rathore Vs. State of Madhya Pradesh (7 judge Bench) 37
(vii) 1998(7) SCC 386 in the case of Abbai Maligai Partnership Firm Vs. K.Santhakumaran
(viii) 2000(6) SCC 359 in the case of Kunhayammed Vs. State of Kerala
(ix) 2007(4) SCC 221 in the case of A.V.Papayya Sastry Vs. Govt. of A.P.
(x) 1964 AIR 377 in the case of Bank of Bihar Vs. Mahabir Lal and others
(xi) 1982(2) SCC 463 in the case of State of Maharashtra Vs. Ramdas Srinivas Naik and another
(xii) 2011(12) SCC 658 in the case of Vimaleshwar Nagappa Shet Vs. Noor Ahmed Sharief and others.
(xiii) AIR 2001 SC 1084 in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho
(xiv) AIR 2012 SC 3285 in the case of Bhartiya Seva Samaj Trust Tr. Pres. and another Vs. Yogeshbhai Ambalal Patel and another
(xv) AIR 2013 SC 1690 in the case of Bhagwati Developers Private Ltd., Vs. Peerless General Finance Investment Co. Ltd., and others
8. Learned counsel appearing petitioner in W.P. No.38476/2015 submitted that the order passed by the 38 FDP Court is patently illegal and not in accordance with law, as such, the writ petition may be allowed and the order challenged in the writ petition be set aside. He also adopted the arguments advanced by the learned Senior Advocate and also the learned counsel in other connected writ petitions.
9. Per contra, learned counsel appearing for respondents/legal representatives of defendant No.2 submitted that all the contentions raised by the writ petitioners in the above three writ petitions were already considered by the Division Bench of this Court in RFA connected with RFA Crob. and have been rejected. Therefore, on this ground itself the writ petitions are liable to be dismissed. He has submitted that in the RFA before the Division Bench of this Court, "C" schedule was not at all the subject matter of the said appeal. Therefore, the contention of the writ petitioners herein that there is merger of the FDP Court order with the judgment and decree passed by this Court in the 39 said RFA and hence, the legal representatives of defendant No.2 ought to have filed the said application before this Court cannot be accepted at all. The learned counsel submitted that when there is mistake committed by the Court itself while passing the judgment and order, no limitation is applicable to correct the same. Regarding the delay of 13 years in filing the application as contended by the writ petitioners, the learned counsel submitted that the delay was because of the stay order in respect of "A" and "C" schedule properties. Drawing the attention of this Court to the order of the FDP Court, the learned counsel submitted that the said order is legal and it is in accordance with the material placed on record. The writ petitioners themselves have filed an application under Section 152 of CPC under I.A.No.1/2013 in RFA seeking correction of the order and now they are contending that the FDP Court has no jurisdiction to entertain such application and hence, it is submitted that the writ petitioners cannot approbate and 40 reprobate. He also drew the attention of the Court to the objection statement (Annexure-R1) so also, the contents of the affidavit filed by the petitioners and submitted that there is no merger of the FDP Court order into the judgment and decree passed by the Division Bench of this Court in the RFA and hence, the application filed before the FDP Court was maintainable and the FDP Court has rightly entertained the application and after noticing the clerical/typographical error in the order, the same was clarified by allowing the application. Accordingly, the learned counsel submitted that there is no merit in the writ petitions and the same may be dismissed.
In support of his contentions, the learned counsel has relied upon the following decisions:
(i) AIR 1967 SC 681 in the case of State of Madras Vs. Madurai Mills. Co. Ltd.,
(ii) 1995 Supp. (4) SCC 582 in the case of Tiko (SMT.) and others Vs. Lachman 41
(iii) (2000)6 SCC 359 in the case of Kunhayammed and others Vs. State of Kerala and another
(iv) (2003)2 SCC 330 in the case of Prathibha Singh and another Vs. Shanthi Devi Prasad and another
(v) AIR 1975 KAR 107 in the case of Kale Gowda Vs. Akkayamma and others
(vi) ILR 1983 KAR 141 in the case of Niyaz Ahmed Khan and others Vs. Gurappa and another
(vii) ILR 1990 KAR 1522 in the case of Noor Mohammed Vs. Navarathanmal.
(viii) AIR 2006 KER 135 in the case of H.Krishnan and others Vs. Mohammed @ Kunhan and others
(ix) LAWS (KER)-1993-7-32 in the case of Abdhu Vs. Assainar
(x) AIR 2006 HP 114 in the case of Devi Roop Vs. Smt.Devku and others
(xi) AIR 2004 AP 91 in the case of State Bank of Hyderabad Vs. B.Rangaswamy and others
10. I have perused the pleadings of the parties, order passed by the FDP Court dated 7.8.2015 on I.A.No.V/2014 filed in FDP No.6/1998, decisions relied upon by learned counsel on both sides which are 42 referred to above, so also, the grounds urged in the above three writ petitions.
11. The point that arise for my consideration in these petitions is: "Whether the order passed by the FDP Court on I.A.No.V/2014 is illegal and calls for interference by this Court?
My answer to the above point is in the Negative for the following reasons.
12. Suit was filed before the trial Court in O.S.No.213/1983 for a decree of declaration that plaintiffs are entitled for 2/7th share in all the plaint schedule properties and for separate possession and also for a direction to defendant Nos.1 and 2 in the said suit to account for the monies and properties they are managing and for direction to defendant Nos.11 to 33 who are the tenants, to deposit the rents payable by them in respect of the properties occupied by them and for possession and costs.
43
13. The properties shown are as per schedules "A" to "K" annexed to the plaint in the said suit. The said suit was subsequently transferred to the Court of Small Causes and Addl. Civil Judge at Mysuru, which was re- numbered as O.S.No.38/1990. The suit filed by the plaintiffs was decreed holding that plaintiffs are entitled for 2/7th share in all the plaint schedule properties except plaint "E" and "I" to "K" schedule properties and plaintiffs are also entitled for their shares with separate possession and also liable for proportionate liabilities of the joint family and the defendants were directed to deliver possession of 2/7th share in all the suit schedule properties except plaint "E" and "I" to "K" schedule properties to the plaintiffs. No appeal was preferred challenging the legality and correctness of the judgment and decree passed in O.S.No.38/1990. Thereafter, plaintiffs filed FDP No.6/1998. The FDP Court passed the order dated 22.2.2001. In these writ petitions the order passed by the FDP Court on the application 44 I.A.No.V/2014 filed under Section 152 of the CPC seeking amendment of the decree so far as the "C" schedule property is concerned has been challenged by the petitioners. Therefore, it is necessary to mention as to the order of the FDP Court passed in respect of "C" schedule property while disposing off FDP No.6/1998, which reads as under:
"C" schedule property bearing Municipal No.202, 202/1 and 2, 203, 204 to 208 situated at Sayyajirao road, Mysore.
Firstly, the defendant No.2 is permitted to purchase the theatre for the price fixed by the Commissioner Rs.4,32,00,000/- and after deducting his share amount, have to pay the balance amount towards the share of other co-sharers at the time of execution.
Alternatively, if the defendant No.2 failed to own the theatre and pay the balance amount before the date of actual division in 'B' schedule property, then the said Chamundeshwari theatre has to be divided in seven shares as mentioned in Annexure-B sketch prepared by Court."
In the further portion of the said order in respect of "C" schedule properties, portions allotted to each co-shares 45 is mentioned in detail, which is not necessary to reproduce.
The order passed in the said FDP proceedings was challenged before this Court in R.F.A.No.353/2001 by the plaintiffs and some of the defendants in the said suit have also filed the cross objection which was numbered as R.F.A.Crob No.16/2001. The Division Bench of this Court disposed of the said appeal as well as the cross objection by a common judgment dated 19.4.2012. The common order passed by this Court reads as under:
"(i) The appeal is partly allowed.
(ii) The partition in respect of 'A' schedule
property will be in accordance with the joint memo filed by the parties on 19.4.2012 along with six sketches.
The joint memo and sketches shall become part of the judgment and decree.
(iii) The final decree passed by the trial Court in respect of the remaining schedule properties remain undisturbed.
(iv) The cross objection is dismissed.
(v) Parties to bear their own costs."
46Subsequent to the passing of the judgment and decree in the said appeal by this Court, the legal representatives of deceased defendant No.2 filed application before the FDP Court under Section 152 of the CPC seeking to amend the clerical mistake that has crept in the order dated 22.2.2001 and prayed the FDP Court to substitute the letter "C" schedule property in place of letter "B'' schedule property in the order dated 22.2.2001 at line No.13 of page No.39 under the sub- heading "C" Schedule property. The application was also supported by the affidavit of one Sri.M.G.Thirthaprasad, the legal representative of deceased defendant No.2. The application was opposed by the plaintiffs and some of the defendants by filing their separate objection statement. After considering the merits of the application, ultimately, the FDP Court has allowed the said application and ordered for the correction/amendment in respect of "C" schedule property by substituting the word "C" in place of "B". 47 Being aggrieved by the order of the FDP Court passed on the said application, writ petitioners in all the three writ petitions are before this Court.
14. The main contention of the writ petitioners herein is that the order passed by the FDP Court in FDP proceedings has been challenged by the plaintiffs by preferring the R.F.A.No. 353/2001 and some of the defendants have preferred R.F.A.Crob.No.16/2011. Therefore, it is their contention that once there is a judgment and decree passed by the Division Bench of this Court in the appeal proceedings, the order passed by the FDP Court merges with the judgment and decree passed by the Division Bench of this Court. Therefore, the application ought to have been filed before Division Bench of this Court and that the FDP Court has no jurisdiction to entertain such application. Another contention of the writ petitioners herein is that the said application I.A.No.V was filed before the FDP Court after 48 long lapse of time, therefore, the application was barred by law of limitation.
15. In the judgment and decree passed by the Division Bench of this Court in the appeal and cross appeal, the Division Bench has held that "C" schedule property is not at all the subject matter in the appeal. It is also mentioned in the said order dated 19.4.2012 that final decree passed by the trial Court in respect of remaining schedule properties remain undisturbed. Materials also goes to show that the respondent Nos.4 to 7 in the said appeal have filed an application I.A.No.I/2013 seeking amendment of the judgment and decree, which was disposed of by the Division Bench on 14.3.2014. In the said order the Division Bench of this Court has observed that "the learned counsel for respondents 4 to 7 contends that the operative portion of the judgment passed by this Court is not in conformity with the observations made in the earlier portion of the judgment in so far as "C" schedule 49 property is concerned. It is further observed that "C" schedule property was not the subject matter of this appeal. The second defendant before the trial Court did put forth the case of tenancy in respect of theatre, which is located in the "C" schedule property after accepting the judgment of the trial Court that each one of them is entitled for 1/7th share. The trial Court has negatived the said contention. We after hearing the parties have confirmed that finding of the trial Court also and except for extent "C" schedule property was not the subject matter of the appeal at all. Therefore, amending operative portion of the judgment in terms of the observations made in the judgment would not arise for consideration. Hence, I.A.No.1/2013 is rejected."
16. The Division Bench of this Court while disposing of the appeal and cross objections, so also, while passing the order on I.A.No.1/2013 in the said appeal, has made it clear that "C" schedule property was not at all the subject matter of the said appeal. 50 Therefore, this aspect has been taken into consideration by the FDP Court while passing the order on application filed under Section 152 of CPC.
17. The FDP Court has also referred to the operative portion of the order passed in FDP 6/1998 and comes to a conclusion that so far as "C" schedule property is concerned while making the observation in the paragraph which starts with the word 'Alternatively', the FDP Court by mistake/oversight has mentioned the letter "B" in line No.13 at page No.39 of its order, which ought to have been "C". It is also observed by the FDP Court that "B" schedule property is not at all connected with or linked with "C" schedule property. Accordingly, the letter "B" was ordered to be corrected as "C".
18. So far as the limitation aspect is concerned, the FDP Court has also observed that since it is the mistake of the Court, the question of limitation does not arise at all and the Court can correct its mistake at any 51 time. In this regard, I have also perused the decisions relied upon by learned counsel appearing for the legal representatives of deceased defendant No.2, which are cited above. Considering the materials on record, it is seen that the factual aspects involved in the case on hand and the facts and circumstances involved in the reported decisions relied upon by the writ petitioners are not exactly one and the same. Therefore, the decisions relied upon by the learned counsel for the writ petitioners will not come to the aid and assistance of the writ petitioners. Further, the FDP Court has considered each and every aspect of the matter extensively and has rightly come to the conclusion in allowing the amendment application filed by the legal representatives of deceased defendant No.2.
19. I do not find any illegality or perverse or capricious approach in the order of the said FDP Court. There are no justifiable grounds for this Court to interfere into the order passed by the FDP Court on the 52 application I.A.No.V. Accordingly, all the three writ petitions are hereby dismissed.
Sd/-
JUDGE Cs/bkp Ct-SG