Karnataka High Court
Mr. Beerappa vs Mrs. Muddamma on 1 October, 2015
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.14915 OF 2015 (GM-CPC)
BETWEEN:
MR.BEERAPPA
AGED ABOUT 63 YEARS,
S/O.LATE DODDAMARI GOWDA
AND LATE MAYAMMA
RESIDING AT #1037,
GARUDACHAR, THOTADA RASTE,
VIJAYANAGAR, 3RD STAGE,
MYSORE - 570 017
... PETITIONER
(BY SRI.AJAY SHANKAR RAO, ADV.)
AND:
1. MRS.MUDDAMMA
W/O.LATE DODDAMARIGOWDA
SINCE DECEASED REPRESENTED
BY LR's RESPONDENTS 2 TO 11
2. MR.RAMU
AGED ABOUT 48 YEARS,
S/O.LATE DODDAMARIGOWDA
3. MRS.THAYAMMA
AGED ABOUT 40 YEARS,
D/O.LATE DODDAMARIGOWDA
4. MR.RAJU
AGED ABOUT 36 YEARS,
S/O.LATE DODDAMARIGOWDA
2
5. MRS.NAGAMMA
AGEDA BOUT 34 YEARS,
D/O.LATE DODDAMARIGOWDA
6. MR.PUTTU
AGED ABOUT 32 YEARS,
S/O.LATE DODDAMARIGOWDA
7. MR.BEERAPPA
AGED ABOUT 28 YEARS,
S/O.LATE DODDAMARIGOWDA
8. MRS.LAKSHMI
AGED ABOUT 24 YEARS,
D/O.LATE DODDAMARIGOWDA
9. MRS.JAYAMMA
AGED ABOUT 55 YEARS,
W/O.LATE SHIVANNA
10. MR.KARUNA
AGED ABOUT 18 YEARS,
S/O.LATE SHIVANNA
11. MRS.HEMA
AGED ABOUT 20 YEARS,
D/O.LATE SHIVANNA
RESPONDENTS 2 TO 11 ARE R/AT
DOOR NO.579, HOSABEEDHI,
MADIKERI MAIN ROAD,
HINKAL MYSORE - 570 024
12. MR.A.PAPANNA
AGED BOUT 59 YEARS,
S/O.LATE ANNAIAH
RESIDING AT:
HANDI BEEDHI, HINKAL,
KASABA HOBLI,
MYSORE - 570 024
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13. MR.H.B.ASHOK
S/O.H.G.BALRAM BHAT,
AGED ABOUT 43 YEARS,
14. MR.S MEENA ASHOK
W/O. H.B.ASHOK,
AGED ABOUT 36 YEARS,
RESPONDENTS 13 AND 14 ARE R/AT
1226/3, 2ND CROSS,
KRISHNAMURTHY PURAM,
CHAMRAJA MOHALLA,
MYSORE - 570 024
... RESPONDENTS
(BY SRI.SHASHIKIRAN SHETTY, SENIOR COUNSEL FOR
M/S.SHETTY & HEGDE ASSOCIATES, ADVS. FOR R-2 TO
R-11;
SRI.ANANDA.K, ADV. FOR R-12,
SRI.SYED KHAMRUDDIN FOR M/S.KNS LEGAL, ADVS. FOR
R13 & R14)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DTD. 28.2.2015 (ANNEX-A) PASSED BY THE
LEARNED III ADDITIONAL (SR.DIV) CIVIL JUDGE, MYSORE
ON I.A. NO.19 FILED BY THE PETITIONER IN O.S.NO.470
OF 2008.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Heard Sri Ajay Kumar Rao, learned Advocate appearing for petitioner, Sri Shashi Kiran Shetty, learned Senior Counsel appearing for respondents-2 to 11, Sri K Ananda, learned Advocate appearing for respondent-12 and Sri Syed Khamruddin, learned Advocate appearing for respondent-13 and 14.
2. Petitioner being aggrieved by the rejection of application filed by him under Section 151 CPC seeking permission to file written statement along with vakalathnama has presented this petition under Article 227 of the Constitution of India seeking for quashing of impugned order dated 28.02.2015 (Annexure-A).
3. It is contended by Sri Ajay Kumar Rao, learned Advocate appearing for petitioner that first defendant though served and counsel representing first defendant had undertaken to appear on behalf of petitioner i.e., second defendant, instructions was not given to learned counsel on account of various disputes pending between the parties and as such, written statement was not filed within 90 days and 5 as such permission was sought for to file written statement and contest the suit on merits and same having been rejected has resulted in deprivation of valuable right of petitioner. Hence, he prays for quashing of impugned order.
4. Per contra, Sri Shashi Kiran Shetty, learned Senior Counsel appearing for respondents-2 to 11 has supported the impugned order.
5. Having heard the learned Advocates appearing for parties and on perusal of case papers, it would indicate that initially suit was filed against first defendant only. Subsequently, on an application filed namely, I.A.4 on 06.01.2007 which came to be allowed on 16.11.2007, petitioner herein came to be arrayed as second defendant. Undisputedly, counsel who represented the first defendant undertook to appear on behalf of present petitioner i.e., second defendant and he did not file vakalathnama and obviously for the reason that vakalathnama had already been filed when notice on application filed under Order 1 Rule 10(2) CPC had been served on the writ petitioner - second defendant.
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6. Be that as it may. Plaintiffs have filed the present suit in question for declaration and consequential relief of perpetual injunction. Second defendant has also staked his claim to the suit schedule property and he has alienated the suit property in favour of first defendant who inturn has alienated the same in favour of defendants-3 and 4. Second defendant had sought leave of the Court to file written statement and contest the suit on merits after being impleaded in the year 2007. Though second defendant
- petitioner does not have any subsisting interest in the suit schedule property, he has stated that he intends to file the written statement in order to establish that he had subsisting right and interest to convey title to first defendant and as such, application in question has been filed seeking permission to file written statement. Though reasons assigned in the affidavit supporting the application does not inspire confidence for being accepted, taking into consideration the fact that suit is still at the stage of recording of evidence of plaintiff and to avoid any future possible litigation in this regard or present litigation getting multiplied, it would be necessary to permit petitioner - 7 second defendant to file written statement and contest the suit on merits by putting on terms to allay the fear expressed by the respondents-plaintiffs namely, that petitioner is likely to drag on the proceedings.
7. Hence, this Court is of the considered view that order passed by the trial Court though does not suffer from any legal infirmities, in the interest of substantial justice, same deserves to be quashed and I.A.No.19 filed by the petitioner - second defendant deserves to be allowed on payment of heavy costs and also subject to condition that suit shall be disposed of within the time frame as fixed herein below.
Hence, I proceed to pass the following:
ORDER (1) Writ petition is hereby allowed. (2) Impugned order dated 28.02.2015 (Annexure-A) is quashed and I.A.No.19 filed by second defendant is hereby allowed on payment of Rs.10,000/- to respondents-2 to 11 i.e., plaintiffs. Payment of costs shall be condition 8 precedent for taking the written statement on file.
(3) Trial Court shall dispose of the suit in question in the following manner and within the time indicated herein below:
Sl.No. Date Stage of the proceedings
1 07.10.2015 Written statement to be
filed by second defendant *
2 14.10.2015 Reply (rejoinder by
plaintiffs) *
3 28.10.2015 Additional issues if any *
4 15.12.2015 Conclusion of evidence of
plaintiffs *
5 10.02.2016 Conclusion of evidence of
defendants *
6 15.03.2016 Arguments of plaintiffs to
be concluded *
7 25.03.2016 Arguments of defendants to
be concluded *
8 15.04.2016 Judgment *
* on or before date indicated in column No.(2) (4) It is made clear that all parties to the suit shall co-operate with the trial Court for expeditious disposal and in the event of any of the parties were to seek for an adjournment without any 9 justifiable cause to the satisfaction of trial Court, it would be at liberty to impose exemplary costs on such of the parties who seek for adjournment.
Sd/-
JUDGE *sp