Karnataka High Court
Vinoda @ Sheela Ramachandra Raikar vs Sharada W/O Honnappa Naik on 19 February, 2018
1 W.P.No.111196/2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19 T H DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
W.P.NO.111196/2017 (GM CPC)
BETWEEN:
VINODA @ SHEELA RAMACHANDRA RAIKAR
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O: OPPOSITE MISSION HOSPITAL,
ANKOLA, TAL: ANKOLA,
DIST: UTTARA KANNADA.
... PETITIONER
(BY SRI K.L.PATIL & SRI. VIJAYKUMAR B HORATTI, ADVS.)
AND
1. SHARADA W/O HONNAPPA NAIK
AGE: 52 YEARS,
OCC: AGRICULTURIST & HOUSEHOLD,
R/O: HOSAGADDE,
ANKOLA TALUK.
2. MEERA W/O NAGAPPA NAIK
AGE: 44 YEARS,
2 W.P.No.111196/2017
R/O: TENKANAKERI,
ANKOLA TALUK.
3. SARASWATHI W/O BANGARI NAIK
AGE: 40 YEARS,
R/O: MANJUGUNI,
ANKOLA TALUK.
4. SHESHI W/O DURGA NAIK
AGE: 78 YEARS,
OCC: AGRICULTURIST & HOUSEHOLD,
R/O: HANUMATTA,
TALUK: ANKOLA.
5. NAGAPPA DURGA NAIK
AGE: 56 YEARS,
OCC: AGRICULTURIST,
R/O: HANUMATTA,
TALUK: ANKOLA.
6. PUTTU DURGA NAIK
AGE: 54 YEARS,
OCC: AGRICULTURIST,
R/O: HANUMATTA,
ANKOLA TALUK.
7. SHANKAR DURGA NAIK
AGE: 45 YEARS,
OCC: AGRICULTURIST,
R/O: VANDIGE,
TALUK: ANKOLA.
8. PREMABAI W/O SHIVANANDA SHET
AGE: 70 YEARS,
OCC: AGRICULTURIST,
R/O: NEELAMPUR,
TALUK: ANKOLA.
3 W.P.No.111196/2017
9. RAVINDRANATH SHIVANAND SHET
AGE: 51 YEARS,
OCC: AGRICULTURIST,
R/O: SHEDAGERI,
TAL: ANKOLA.
RAMACHANDRA HAMMANNA NAYAK
SINCE DEAD BY HIS LRS,
10. MEERA W/O RAMACHANDRA NAYAK,
AGE: 68 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
11. HARISH RAMACHANDRA NAYAK
AGE: 46 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
12. DINESH RAMACHANDRA NAYAK
AGE: 44 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
13. SUBHASH RAMACHANDRA NAYAK
AGE: 42 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
14. KALPANA S/O RAMACHANDRA NAYAK
AGE: 41 YEARS,
R/O: BHAVIKERI, ANKOLA TALUK.
15. SHOBHA RAMACHANDRA NAYAK
AGE: 40 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
4 W.P.No.111196/2017
16. NEETA HARISH NAYAK
AGE: 38 YEARS,
R/O: BHAVIKERI,
ANKOLA TALUK.
17. DEEPAK G
AGE: 41 YEARS,
R/O: SHIRAKULI ROAD,
ANKOLA,
TALUK: ANKOLA.
18. SMT.ANJANA BHAIRAV NAIK
AGE: 40 YEARS,
R/O: VANDIGE,
ANKOLA TALUK.
19. VIDYA RAMA NAIK
AGE: 40 YEARS,
SCHOOL TEACHER,
R/O: AJJIKATTA,
ANKOLA TALUK.
20. SUNANDA SHANKAR NAIK
AGE: 55 YEARS,
R/O: VANDIGE,
ANKOLA TALUK.
... RESPONDENTS
(BY SRI. J S SHETTY, ADV. FOR R1-R3;
R4 TO R7 ARE SERVED, V.C.O. DATED 11/1/2018;
NOTICE TO R8 TO R20 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER ON I.A.NO.19 DATED:13.11.2017 IN
5 W.P.No.111196/2017
O.S.NO.19/2017 PASSED BY THE SENIOR CIVIL JUDGE,
ANKOLA PRODUCED VIDE ANNEXURE-M.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Heard.
2. The petitioner is the 9th defendant in O.S.No.19/2017 pending before the Senior Civil Judge, Ankola. Respondent Nos.1 to 3 are the plaintiffs and respondent Nos.4 to 20 are the co- defendants.
3. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.
4. The plaintiffs in O.S.No.19/2017 are the daughters of defendant No.1 and deceased Durga Naik. Defendant Nos.2 to 4 are sons of defendant No.1 and deceased Durga Naik. In the suit they 6 W.P.No.111196/2017 claimed that as heirs of Durga Naik each of them have 1/7 t h share in the suit property.
5. Defendant No.9 contested the suit claiming that she has purchased 4 guntas and 12.5 anans out of the suit schedule item No.1 property bearing Survey No.2/1A2B in all measuring 3 acres 1 gunta under registered sale deed dated 7/7/2003 for a consideration of Rs.1,43,500/-. She further contended that the plaintiffs are the consenting parties to the said sale deed.
6. The plaintiffs filed IA No.18 for temporary injunction against the 9th defendant against the construction of the building on the property purchased by her. The trial Court vide Order Annexure-D allowed the application.
7. In the operative portion of the order, the trial Court granted the injunction against the 7 W.P.No.111196/2017 alienation of the suit property. The Order Annexure- D is totally unintelligible. The trial Court framed the following points for consideration in Order Annexure- D and answered them as stated below:-
"6. The points that arise for my consideration are as follows:
i) Whether applicants/plaintiffs prove that they have got prima facie case against the defendants?
ii) Whether the applicants/plaintiffs prove that balance of convenience lies in their favour?
iii) Whether applicants/plaintiffs prove that if temporary injunction is not granted as prayed for in I.A.No.1 then they will be put to great hardship than the defendants?
iv) What order?8 W.P.No.111196/2017
7. My findings to the above points are:
Point No.1 : In negative Point No.2: In negative Point No.3: In negative Point No.4: As per final order for the following"
8. In the body of the order, the trial Court says that if the 9 t h defendant established her defence, she shall go on with the construction. But ultimately it passes order of injunction against the alienation of the property.
9. The plaintiff filed IA No.19 vide Annexure-K under Section 151 of CPC seeking direction to the P.S.I. Ankola for implementation of the order passed by the trial Court on IA No.18.
10. The trial Court after hearing both the parties, on the said application vide Order 9 W.P.No.111196/2017 Annexure-M dated 13/11/2017, allowed the application and directed the Ankola police to restrain defendant No.9 from making further construction.
11. In the Order Annexure-M, the trial Court says that its order on IA No.18 is in substance an order granting injunction against the construction of the building, but, by clerical mistake it has answered point Nos.1 to 3 in the negative and omitted to state in the order that the injunction is against the further construction. The trial Court says that it has committed a major mistake while pronouncing the order, therefore it is required to direct the defendant No.9 not to make any further construction.
12. Sri Vijaykumar B. Horatti, the learned counsel for the petitioner contends that though the order on IA No.18 was against the alienation of the property, the trial Court committed an error in directing the police to prevent the construction. He 10 W.P.No.111196/2017 further contends that the trial Court has committed an error in passing such order without reviewing or amending its order on IA No.18.
13. Sri J.S.Shetty, the learned counsel for plaintiffs vehemently contends that Order on IA No.18 is an in substance an order granting injunction against the construction. He further contends that the defendant No.9 accepted that order without challenging the same. He contends that the mistake of the Court should not cause injustice to the plaintiffs and he thus supports the impugned order.
14. It is no doubt true that, if there is any clerical or arithmetical mistakes in orders, or errors arising therein from any accidental slip or omission, the Court can correct the same suo motu. However, the Court is required to give an opportunity to the parties who are likely to be affected by such 11 W.P.No.111196/2017 amendment, before passing such order under Section 152 of CPC.
15. In this case, the Court even after noticing that it has committed a major mistake in its order, without taking steps for correction invoking Section 152 of CPC or reviewing the same has directly proceeded to pass the impugned order on IA No.19. Thereby, the trial Court has deprived the affected party of its right of audience. That amounts to jurisdictional error. Therefore, the petition is allowed.
16. Impugned Order Annexure-M dated 13/11/2017 passed by the Senior civil Judge, Ankola is hereby set aside. The trial Court is directed to hear the parties regarding the correction of the order and pass appropriate orders thereon, then proceed to hear IA No.19.
12 W.P.No.111196/2017
17. Since it appears from the records that the 9 t h defendant is proceeding with the construction, till exercise of hearing of the parties and correction of the Order is done, it is in the interest of justice to maintain status quo.
18. The trial Court shall hear the parties and pass order regarding the correction of Orders on IA No.18 within one month. The parties are directed to appear suo-motu before the trial Court on 5/3/2018.
19. In view of the disposal of the petition IA No.1/2018 does not survive and is disposed of accordingly.
Sd/-
JUDGE Vmb