Karnataka High Court
Smt Narayanamma vs Sri Gurumurthy on 21 August, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NOS. 24012 -24016 OF 2017 (GM-CPC)
BETWEEN:
Smt. Narayanamma
W/o. of Late E. Doreswamy,
Aged about 80 years,
(Dead and all her legal heirs
are already on record)
1. Smt. Glory Ester,
D/o Late E. Doreswamy,
Aged about 50 years.
2. Smt. Violent Mary,
D/o Late E. Doreswamy,
Aged about 47 years.
3. Smt. Roase Mary,
D/o Late E. Doreswamy,
Aged about 44 years.
4. Smt. Danasheela
D/o Late E. Doreswamy,
Aged about 42 years.
5. Smt. Premalatha,
D/o Late E. Doreswamy,
Aged about 39 years.
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All are residing at
No.13, 5TH Cross,
Jaibharathnagar,
Bangalore - 33.
... Petitioners
(By Smt. Shwetha Anand, Advocate)
AND:
1. Sri. Gurumurthy,
S/o Guruswamy,
Aged about 80 years,
No.42, Narayanaswamappa Garden,
Bangalore-2.
2. Gowramma
D/o Late Channappa,
Aged about 45 years,
R/at Thindlu Village,
Yelahanka Hobli,
Bangalore North Taluk-97.
3. The Tahsildar,
Bangalore East Taluk,
K. R. Puram,
Bangalore -36.
4. The Assistant Commissioner,
North Sub-Division,
Bangalore-9.
5. The Chief Secretary,
Revenue Department,
Vidhana Soudha,
Bangalore-1. ... Respondents
(By Sri. R. Shama for R2;
Sri. B. Visweswaraiah HCGP for R3-5;
R1-served but unrepresented)
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These Writ Petitions are filed under Article 227 of
the Constitution of India praying to set aside the order
dated:24.4.2017 passed in the I.A. filed U/o 9 Rule 4 read
with Section 151 of CPC and Section 5 of the Limitation
Act in O.S.No.2355/2007 on the file of II Addl. Senior Civil
Judge Bangalore Rural District, Bangalore produced under
Annexure-A and in turn allow the said I.A.No.U/o 9 Rule 4
read with Section 151 of CPC and Section 5 of the
Limitation Act etc.
These petitions coming on for Preliminary Hearing,
this day, the Court made the following:
ORDER
Petitioners are plaintiffs in O.S.No.2355/2007 on the file of II Addl. Senior Civil Judge, Bangalore Rural District, Bengaluru. That suit has been filed by them seeking the following reliefs;
" a) Declare that the sale deed dated 24.9.1979 executed by the alleged Ranima and others in favour of the first defendant in respect of the schedule property is not binding on the plaintiffs.
b)Declare that the sale deed dated 28.7.1983 executed by the first defendant in favour of 4 the father of the second defendant Channappa is not binding on the plaintiffs.
c) Restrain the defendants 1 and 2 in interfering with the suit schedule property by way of permanent injunction.
d) Direct the defendant No.3 to enter the name of the plaintiffs in the revenue record in place of defendant No.2 as per law by way of Mandatory injunction.
d) Grant such other relief of relief's as this Hon'ble Court deems fit to grant in the circumstances of the case including costs in the interest of justice of equity."
in respect of the suit schedule properties bearing survey No. 21, New No.96,, situated at Errappanahalli Village, Bidarahally Hobli, Bangalore East Taluk, measuring 4 acres.
2. By order dated 30.7.2012, the suit was dismissed as against the first defendant, as steps were not taken for service of summons on him. Thereafter, the suit 5 proceeded against the other defendants. When the matter was at the stage of arguments and after a lapse of five years i.e. on 6.4.2017 an application was filed under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure, 1908, (CPC) and another application under Section 5 of the Limitation Act, 1963, seeking recall of the order dated 30.7.2012. The trial court has considered the said application and by the impugned order dated 24.4.2017 has dismissed the same. Being aggrieved by the said order, plaintiffs have preferred these writ petitions.
3. I have heard learned counsel for the petitioners and learned counsel for caveator/respondent No.2. Respondent No.1 has been served by hand summons, but unrepresented. I have perused the material on record.
4. The trial court has noted that on 30.7.2012 the suit was dismissed as against defendant No.1 on account of non-taking of steps for service of summons on him. Be that as it may. After a lapse of nearly five years, an 6 application was filed under Order IX Rule 4 read with Section 151 of the CPC along with another application under Section 5 of the Limitation Act, 1963 seeking recall of that order. By then the suit had proceeded as against the other defendants.
5. Learned counsel for the petitioners submits that the declaration sought is that defendant No.1 against whom service by hand summons was issued, had no right, title and interest to sell the suit property to defendant No.2. Therefore, a declaration has been sought in so far as sale deed as well as the authority of defendant No.1 to alienate the suit property to defendant No.2. It is noted that in so far as defendant No.1 is concerned, the burden is on the plaintiff to prove that he had no right, title and interest to alienate the suit property to defendant No.2 and defendant No.2 has not acquired any right in the suit property. In that view of the matter, the appearance of the defendant No.1 in the suit would have been wholly academic, as he has no right, title and interest in the suit 7 property, as the same has been acquired by defendant No.2 who has contested the suit.
6. In that view of the matter, I do not find any reason to interfere with the impugned order particularly, when the suit is at the stage of final argument.
7. In the circumstances, writ petitions are dismissed.
Sd/-
JUDGE Msu