Karnataka High Court
M/S Nirman Shelters (B) Pvt Ltd vs Sri R Papanna on 14 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 14TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.32209/2017 (GM - CPC)
BETWEEN:
M/S. NIRMAN SHELTERS (B) PVT LTD
DEVELOPERS AND BUILDERS
NO.61, GANDHI BAZAAR MAIN ROAD
BASAVANAGUDI
BENGALURU - 560 004
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI.V.LAKSHMINARAYANA
S/O LATE VENKATAPPA
AGED ABOUT 71 YEARS
PRESENTLY AT NO.71, K.R.ROAD
BASAVANAGUDI
BENGALURU - 560 004
... PETITIONER
(BY SRI K.K.VASANTH, ADV.)
AND:
1. SRI.R.PAPANNA
AGED ABOUT 78 YEARS
S/O LATE RAMAIAH
R/AT BUKKA SAGARA
JIGANI HOBLI
2
ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
2. SMT.JAYAMMA
AGED ABOUT 65 YEARS
W/O VENKATAPPA
R/AT BUKKA SAGARA
JIGANI HOBLI
ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
3. SRI.B.L.KRISHNAPPA
AGED ABOUT 72 YEARS
S/O LAKSHMAIAH
R/AT BUKKA SAGARA
JIGANI HOBLI
ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
4. SMT.RADHAMMA
AGED ABOUT 59 YEARS
W/O SURI
R/AT NO.G-11-2
P&T QUARTERS
KAVAL BYRASANDRA
R.T.NAGAR
BENGALURU - 560 032
5. SRI.B.L.NARASIMHA MURTHY
AGED ABOUT 41 YEARS
S/O LAKSHMAIAH
R/AT BUKKA SAGARA
JIGANI HOBLI
ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
6. SMT.KEMPAMMA
AGED ABOUT 66 YEARS
W/O LAKSHMAIAH
R/AT BUKKA SAGARA
JIGANI HOBLI
ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
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7. SMT.NALINI
AGED ABOUT 36 YEARS
W/O ANJAN
R/AT NO.467
CHOLANAYAKANAHALLI
R.T.NAGAR
BENGALURU - 560 032
8. SRI.LAKSHMIKANTHA
AGED ABOUT 34 YEARS
S/O LAKSHMAIAH
R/AT BUKKA SAGARA
JIGANI HOBLI, ANEKAL TALUK
BENGALURU RURAL DISTRICT - 562 106
9. DR.M.R.NARENDRA KUMAR
AGED ABOUT 76 YEARS
S/O LATE RAMAIAH
R/AT NO.78, 5TH MAIN
DOMMALURU 2ND STAGE
BENGALURU - 560 071
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE
THE ORDERS DATED 19.06.2017 PASSED ON I.A.5 IN
O.S.2405/2006 BY THE SR.CIVIL JUDGE, AT ANEKAL VIDE
ANNEXURE - E AND CONSEQUENTLY ALLOW I.A.5, ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING ALONG WITH I.A.1/17 THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
The petitioner is defendant No.9 in O.S. No.2405/2006 which is pending on the file of Civil Judge (Sr. Dn.) at Anekal. That suit has been filed by respondent No.9 / plaintiff seeking partition and separate possession of the suit schedule properties. On the filing of written statement, issues were framed by the Trial Court on 29.06.2009. Thereafter the matter was set out for trial. The petitioner herein sought for amendment of the written statement. The written statement was permitted to be amended on 03.04.2013. Even prior to that date, plaintiff had examined himself as PW-1. He had completed his examination in chief on 09.09.2010. The Trial Court, on considering the application seeking to raise additional issues filed by defendant No.9 - petitioner herein under Order XIV Rule 5 read with S.151 of CPC, dismissed the same. Being aggrieved, defendant No.9 has filed this writ petition.
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2. I have heard learned counsel for the petitioner and perused the material on record.
3. It is noted that in the suit, petitioner herein has been arrayed by respondent - plaintiff, as defendant No.9 on the premise that the suit schedule properties belong to his predecessors and apprehending that respondents 1 to 8 are trying to alienate the same in favour of the 9th defendant. The suit is also filed for the relief of partition and separate possession of suit schedule properties.
4. On 09.09.2010, plaintiff as PW-1 had completed his examination-in-chief. From 09.09.2010 till 01.04.2011, the Trial Court granted seven adjournments to the petitioner - defendant No.9 and other defendants to cross-examine PW-1. But the petitioner herein filed an application seeking amendment of the written statement. Ultimately that application was allowed on 03.04.2013 and defendant No.9 was permitted to carryout the amendment. Thereafter, the Trial Court by Order dated 31.05.2017, 6 held that framing of additional issues was not necessary. Despite that, petitioner herein / 9th defendant filed another application seeking to frame additional issues on 15.06.2017. While considering the said application, the Trial Court has observed that defendants have failed to cross-examine plaintiff / PW-1 when opportunities were granted to them and when there was already an order on 31.05.2017 to the effect that additional issues were not necessary to be framed in the suit, the defendant No.9 had filed one more application. The said application was unnecessary, as all the contentions raised in the written statement could be used for cross-examining PW-1 including the right to seek relief of partition and separate possession in the suit and in such circumstances, the Trial Court has dismissed the said application.
5. I do not find any infirmity in the said order. As the suit is one for partition and separate possession of the suit schedule properties, on 29.06.2009, the Trial Court has raised the following issues:
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" 1. Whether the plaintiff proves that the Suit Schedule Properties are the ancestral properties of plaintiff and defendants 1 to 8 ?
2. Whether the plaintiff is entitled for permanent injunction against defendant no.1 and 9 as prayed for ?
3. Whether the plaintiff is entitled to his half share in the Suit Schedule Properties ?
4. Whether the defendant no.1 proves that he is the bonafide purchaser of the Suit Schedule Property?
5. For what decree or order? "
6. If the petitioner as defendant No.9 wants to defeat the claim of the plaintiff in seeking the said relief, he could always do so with reference to the issue Nos.3, 4 and 5 already raised. The said issues are comprehensive enough to include such aspects as non-joinder of necessary parties and also maintainability of the suit itself.
7. In the circumstances, I do not think the Trial Court was in error in dismissing the application. As 8 observed by the Trial Court, the contentions raised by the petitioner herein could be utilised so as to cross-examine PW-1 in order to defeat the claim of PW-1 for partition and separate possession. In that view of the matter, the writ petition does not call for any interference.
Hence, the writ petition is dismissed.
In view of the dismissal of the writ petition, I.A.1/2017 is also dismissed.
Sd/-
JUDGE sac*