Karnataka High Court
Shri Sangappa vs Shri Sadashiv on 9 January, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 107673 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 107673 OF 2017 (GM-CPC)
BETWEEN:
1. SHRI SANGAPPA
S/O KALYANAPPA NEMAGOUDAR,
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
2. SHRI MAHADEV
S/O KALYANAPPA NEMAGOUDAR,
SINCE DECEASED BY HIS LRS,
2(A) SUSILA,
W/O MAHADEV NEMAGOUDAR,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O: FARM HOUSE GANESH NAGAR,
CHANDRASHEKAR
LAXMAN
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
MUDALAGI, TQ: GOKAK,
KATTIMANI
Date: 2023.01.14
11:27:27 +0530
DIST: BELAGAVI.
2(B) BASAWARAJ
S/O MAHADEV NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
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WP No. 107673 of 2017
2(C) MANJUNATH
S/O MAHADEV NEMAGOUDAR,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
2(D) VASANT
S/O MAHADEV NEMAGOUDAR,
AGE: 31 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
3. SHRI GOUDAPPA
S/O KALYANAPPA NEMAGOUDAR,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
...PETITIONERS
(BY SRI. M C HUKKERI, ADVOCATE)
AND:
1. SHRI SADASHIV
S/O TIPPANNA NEMAGOUDAR,
AGE: 66 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
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WP No. 107673 of 2017
2. SHRI ALLAPPA
S/O TIPPANNA NEMAGOUDAR,
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
3. SHRI HANAMANTH
S/O TIPPANNA NEMAGOUDAR,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
4. SRI GANGAPPA
S/O SADASHIV NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
5. SRI VINOD
S/O ALLAPPA NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
6. SHRI PARASAPPA
S/O HANAMANTH NEMAGOUDAR,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
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WP No. 107673 of 2017
DIST: BELAGAVI.
7. SHRI RAMAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 74 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
8. SHRI MALLAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
9. SHRI ANAND
S/O SHIVAPPA NEMAGOUDAR,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
10. SHRI PARASAPPA
S/O SHIVAPPA NEMAGOUDAR,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
11. SHRI NAGAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 47 YEARS,
OCC: AGRICULTURE,
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WP No. 107673 of 2017
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12. SHRI SHRISAIL
S/O NANDEPPA NEMAGOUDAR,
SINCE DECEASED BY HIS LRS,
12(A) RAMESH
S/O SHRISAIL NEMAGOUDAR,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12(B) SUMITRA
W/O BANGAREPPA MAIGUR,
AGE: 32 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: SULTANPUR,
TQ: RAIBAG,
DIST: BELAGAVI.
12(C) SUNANDA
W/O BASAWARAJ MIRJI,
AGE: 31 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HANDIGUND,
TQ: RAIBAG,
DIST: BELAGAVI.
12(D) SHIVALEELA
W/O SHRISAIL MIRJI,
AGE: 28 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HANDIGUND,
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WP No. 107673 of 2017
TQ: RAIBAG,
DIST: BELAGAVI.
12(E) SAVITRI
W/O SURESH TELI,
AGE: 26 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: METAGUDD,
TQ: MUDHOL,
DIST: BAGALKOT.
12(F) REKHA
W/O SANJU HULYAL,
AGE: 24 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: INGALAGI,
TQ: MUDHOL,
DIST: BAGALKOT.
12(G) LAKSHMI
W/O ANANDA BHUMAR,
AGE: 23 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HULYAL,
TQ: MUDHOL,
DIST: BAGALKOT.
12(H) BASAWARAJ
S/O SHRISAIL NEMAGOUDAR,
AGE: 21 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12(I) MAHADEVI
W/O SHRISAIL NEMAGOUDAR,
AGE: 55 YEARS,
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WP No. 107673 of 2017
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
12(J) GANGAVVA
W/O JAKKAPPA NEMAGOUDAR,
AGE: 85 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI,
TQ: GOKAK, DIST: BELAGAVI.
13. SHRI SHANKAR
S/O JAKKAPPA NEMAGOUDAR,
AGE: 50 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK, DIST: BELAGAVI.
14. SHRI MALLAPPA
S/O JAKKAPPA NEMAGOUDAR,
AGE: 48 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
15. SHRI BASAPPA
S/O JAKKAPPA NEMAGOUDAR,
AGE: 32 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. S C BHUTI, ADVOCATE FOR R1, R2, R4 and R5;
SRI. LAXMAN T MANTAGANI, ADVOCATE FOR R7-11, R12(A)
TO 12(J) & R13 TO 15;
R3 AND R6 SERVED)
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WP No. 107673 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:- A)
QUASH THE IMPUGNED ORDER DATEDS ON MEMO PASSED BY
THE TRIAL COURT ON 18.08.2015 AND 04.07.2017
RESPECTIVELY PENDING ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, GOKAK IN O.S.NO.179/2013 VIDE
ANNEXURE-F; B) DIRECT THE TRIAL COURT TO PERMIT THE
PLAINTIFFS/PETITIONERS TO ADDUCE THEIR EVIDENCE AND
CROSS-EXAMINE THE DEFENDANTS CONSEQUENT UPON
QUASHING THE ORDERS ON MEMO DATED 18.08.2015 AND
04.07.2017 RESPECTIVELY.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned orders dated 18.08.2015 and 04.07.2017 passed in O.S.No.179/2013 on the file of Principal Senior Civil Judge, Gokak.
2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the petitioners-plaintiffs instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule properties against the respondents-defendants. In the said suit, respondents No.7 to 15 were arrayed as defendants No.7 to 15 and stated that they also entitled to share in the suit -9- WP No. 107673 of 2017 schedule properties and submitted that they had paid requisite Court fee. Subsequently, when the matter was posted on 18.08.2015, the petitioners-plaintiffs filed a memo seeking dismissal of the suit as not pressed. Respondents No.7 to 15 requested to transposing themselves as plaintiffs and to continue the suit. Subsequently, when the petitioners-plaintiffs insisted on orders to be passed on the aforesaid memo dated 18.08.2015, defendants No.7 to 15 reiterated the request for transposition pursuant to which the trial Court proceeded to pass the impugned order dated 04.07.2017 transposing defendants No.7 to 15 as additional plaintiffs No.4 to 12 in the suit. Aggrieved by the impugned order passed by the trial Court accepting the memo of the plaintiffs and transposing defendants No.7 to 15 as plaintiffs No.4 to 12, the petitioners-
plaintiffs are before this Court by way of present petition.
4. Learned counsel for the petitioners submits that so long as the plaintiffs do not want to continue the suit, the only option available to the trial Court was to dismiss the suit as not pressed and the question of permitting respondents-defendants No.7 to 15 to be transposed as plaintiffs would not arise and consequently, impugned order deserves to be set aside.
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WP No. 107673 of 20175. Per contra, learned counsel for respondents-
defendants No.7 to 15 submits that having regard to the undisputed fact that the suit was one for partition and separation possession in which all parties occupy the status of plaintiff and defendant and in the light of the judgment of the Division Bench of this Court in the case of Smt.Gouramma V/s Nanjappa and others, ILR 2001 KAR 4853, when the plaintiffs sought to withdraw their claim as not pressed, it was the duty of the trial Court to call upon the defendants to state as to whether they have no objection for suit to be dismissed as not pressed or transpose them as the plaintiffs upon their request and consequently the trial Court was fully justified in passing the impugned order permitting defendants No.7 to 15 to be transposed as additional plaintiffs to the suit. It is therefore submits that there is no merit in the petition and same is liable to be dismissed.
6. The law relating to transposition of defendants as plaintiffs in a suit for partition when the plaintiffs intend to withdraw their claim by way of settlement or otherwise is no longer res-integra in the light of the judgment of the Division
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WP No. 107673 of 2017Bench of this Court in the case of Smt.Gouramma supra wherein it is held as under:
"8. Therefore, the question that arises for consideration is, whether in a partition suit, the plaintiff can be permitted to withdraw the suit, or whether a suit can be dismissed as settled out of Court between plaintiff and some of the defendants, when other defendants have also sought partition and separate possession.
9. At the outset it should be noticed that the reason given by the Trial Court for rejecting the objection of first and fifth defendants to the memo of the plaintiff for dismissing the suit, is wholly erroneous. The Trial Court has held that defendant's prayer for partition is a counterclaim; and that a counter-claim is permissible only in a money suit and not in a partition suit; and therefore the counter-claim was not tenable. Firstly, when a defendant in a suit for partition seeks his or her share in property by paying Court fee, such a defendant is not making a 'counterclaim' against a plaintiff alone. He is virtually joining the plaintiff in seeking the relief. He is seeking relief for himself not only against the plaintiff, but also the other defendants. The Court below, therefore, fell into an error by treating the written statement in a suit for partition seeking separate possession of the defendants' share as a counter-claim against the plaintiff. Secondly, the Court also fell into an error in assuming that a counter-claim is
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permissible only in a money suit and not in any other suit.
10. In JAG MOHAN CHAWLA AND ANR. V. DERA RADHA SWAMI SAT-SANG AND ORS., the Supreme Court has held that a counter-claim is no longer confined to money claims or to a cause of action of the same nature as original action of the plaintiff. This Court, while considering the nature and scope of a counter-claim, as contrasted from a set off, in STATE TRADING CORPORATION OF INDIA LIMITED, BANGALORE V. VANIVILAS COOPERATIVE SUGAR FACTORY LIMITED, HIRIYUR, CHITRADURGA DISTRICT, 2001(5) Kar. L.J. 570 has held that counter-claim need not be restricted to money suits only. Hence, the ground on which the fifth defendant's objection (to plaintiff's request for dismissal) has been rejected is untenable. Be that as it may. Whether a claim for share by a defendant in a partition suit is a counterclaim is not the issue. The question is whether a defendant seeking a share is also in the position of a plaintiff and whether the original plaintiff cannot therefore withdraw the suit without the consent of the defendant, who is in the position of a plaintiff.
11. In TUKARAM MAHADU TANDEL V. RAMCHANDRA MAHADU TANDEL, AIR 1925 Bom. 425 the Bombay High Court held as follows:
"But there are other and wider considerations which lead me to hold that plaintiff
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could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another".
The Court farther emphasised that though as a general proposition, a plaintiff may at any time withdraw a suit, a plaintiff cannot always in all circumstances withdraw a suit. This was approved and followed by the Supreme Court in R. Ramamurthi Aiyar (dead) by L.Rs v. Raja V. Rajeswararao.,
12. In SMT. AJITA DEBI V MUSST. HOSSENARA BEGUM AND ORS., the Calcutta High Court reiterated the following principle:
"In our view, where an application has been made under Order 23, Rule 1 the plaintiff is entitled to withdraw his suit and the defendants cannot be heard to oppose such prayer. But the said legal right of the plaintiffs to withdraw the suit is not unconditional or absolute. The Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way if the plaintiffs are allowed to withdraw the suit. To illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having
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a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit....."
"Where an application simpliciter has been made under Order 23, Rule 1, the Court cannot compel the plaintiff to proceed with the suit and the defendants cannot be allowed to complain against such order. But where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw or to compromise the suit with one of the defendants if an application on behalf of other defendants having an interest in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under Order 1, Rule 10."
13. The above principle was followed and reiterated in BANGARU PATTABHIRAMAYYA AND ORS. V. BANGARU GOPALAKRISHNAYYA AND ORS., It was held that if a Court grants permission to the plaintiff to withdraw a partition suit without giving notice to all the contesting defendants, it acts without jurisdiction, as the Court had denied the defendants their lawful right to prosecute the suit by getting transposed as plaintiff. The contention based on the decision of the Supreme Court in HULAS RAI BAIJ NATH V. K.B. BASS AND COMPANY, that there was an unqualified right in a plaintiff to withdraw the suit as dominus litis was rejected by
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WP No. 107673 of 2017pointing out the exceptions to such right is pointed out by the Supreme Court itself in the said decision.
14. IN MANOHAR SINGH V. MST. SARDAR BAI AND ORS., a learned Single Judge of the Rajasthan High Court held that in a suit for partition, even the defendants have the same right as plaintiff to claim partition and the manner in which the parties are arrayed as plaintiffs or defendants in the suit is not material; and the defendants can always be transposed as plaintiffs and can continue the suit if they feel that the plaintiff is not continuing the suit in their interest and therefore, in a suit for partition, the plaintiff has no absolute right to withdraw a suit under Order 23, Rule 1 of the Code of Civil Procedure.
15. When a suit for partition is filed, by a member of a joint family, he expresses his unequivocal intention to separate himself from the joint family and consequently there is a severance of joint family status from the date of suit. A suit for partition is invariably brought in respect all the joint family properties. Every person (including female members) who is entitled to a share on partition is impleaded as plaintiff or defendant, having regard to the fact that any decree which gives a property or a portion of a property to a plaintiff, takes away the right of the other members in that property or portion of the property, and non-impleading of the necessary parties will lead to its dismissal. (Where however partition is claimed branch-wise by any particular branch, it may be sufficient if the heads of all
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WP No. 107673 of 2017the branches are made parties.) In a suit for partition, each defendant is entitled to seek partition and separate possession of his share by paying the specifically prescribed Court fee for such purpose. When a plaintiff seeks partition, he is seeking partition not only against the defendants but also against his co-plaintiff, if any. Similarly when a defendant seeks partition, the relief is sought not only against the plaintiffs, but against the co- defendants also. In other words, each party to a suit for partition, whether a plaintiff or defendant, who seeks the relief of partition and separate possession by paying separate Court fee, is in the position of plaintiff with reference to all other parties to the suit. When a defendant seeks partition and separate possession of his share, in a suit for partition filed by a plaintiff, the defendant's claim is neither a set off nor a 'counter- claim' against the plaintiff in the traditional sense, but is one of a wider scope. The Karnataka Court Fees and Suits Valuation Act, 1958 treats a counter-claim and a defendant's claim for partition differently by providing for them under Sections 8 and 35(3) respectively and prescribes different types of Court fee. Therefore, when the defendants in a suit have paid separate Court fee and sought partition and separate possession of their shares also, the suit cannot be dismissed as withdrawn or settled out of Court by plaintiff with other defendants.
16. The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as
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WP No. 107673 of 2017settled out of Court with some defendants, can be summarised thus:
(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties (not only all defendants, but co-
plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and separate possession by paying Court fee and opposes the dismissal/withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.
(iv) Even if no defendant has sought the relief of partition and separate possession, still then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.
17. In this case, the suit for partition was filed in the year 1990. The fifth defendant had filed her written statement seeking separation of her share in October
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WP No. 107673 of 20171993 and paid Court fee. Even the first defendant sought separate possession of her share in November 1997. The suit was sought to be withdrawn by the plaintiff after evidence, when the matter was listed for final arguments. While it is true that the withdrawal of the suit by the plaintiff would not bar the fifth defendant from filing a fresh suit for partition, there is no reason why fifth defendant should not be permitted to continue the suit by transposing herself as a plaintiff. But for the fact that the plaintiff had filed the present suit in the year 1990 and the fifth defendant was under the impression that she can get her share also in the said suit (having sought such share in 1993), she might have filed a separate suit long back. Therefore, the fifth defendant was justified in opposing the dismissal of the suit. In view of the objections of the fifth defendant to the memo for withdrawal on the specific ground that each defendant in a partition suit seeking his or her share is in the position of co-plaintiff, the Court ought to have permitted the fifth defendant to continue the suit by transposing her as the plaintiff. Even though the fifth defendant did not make any specific application for transposition, it was clear from her objections that she wanted the suit to be continued and specifically pleaded that she was in the position of the plaintiff In the circumstances, the appropriate course was to direct her to be transposed as plaintiff and then proceed with the matter.
18. In view of the above, we allow the appeal as follows:
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(i) The order dated 3-2-1998 passed in O.S. No. 5 of 1991 on the file of the Civil Judge, Bangalore Rural District (dismissing the suit by accepting the memo of the plaintiff for dismissal) is set aside.
(ii) The fifth defendant in the suit is permitted to get herself transposed as plaintiff 2 and the plaintiff is transposed as defendant 10.
(iii) The suit by original plaintiff (who is renumbered as plaintiff 1 on transposition of 5th respondent) shall stand dismissed as settled out of Court.
(iv) The suit with transposed 5th defendant as plaintiff 2 shall be continued from the stage at which was dismissed, if necessary by permitting parties to let in further evidence, having regard to the changed circumstances.
(v) As the suit is of the year 1990, the Court shall endeavour to dispose off the matter expeditiously.
(vi) Parties to bear their respective costs."
7. In the instant case, it is not in dispute that the present suit is one for partition and separate possession and in view of the specific contention of defendants No.7 to 15 they intend to be transposed as plaintiffs and continue the suit since
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WP No. 107673 of 2017that they are also entitled share in the suit schedule properties and had paid the requisite Court fee, the trial Court was fully justified in accepting them that they are entitled to be transposed as plaintiffs and passed the impugned order. I do not find any illegality and infirmity in the impugned order nor can be the same said to be occasioned failure of justice warranting interference by this Court under Article 227 of the Constitution of India in Radhyesham V/s Chabbinath, (2015) 5 SCC 273. Accordingly, petition is dismissed.
SD JUDGE CLK List No.: 1 Sl No.: 32