Karnataka High Court
Yankanna And Ors vs Arjun & Ors on 6 June, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NOS.201522/2017 & 202071-72/2017
(GM-CPC)
BETWEEN
1. YANKANNA S/O LATE YALLAPPA
SINCE DECEASED BY HIS LR'S
I. RANGAMMA W/O LATE YANKANNA
AGE: 70 YEARS, OCC: HOUSEHOLD.
II. KISHTAYYA S/O LATE YANKANNA
AGE: 44 YEARS, OCC: AGRICULTURE.
III. MARUTI S/O LATE YANKANNA
AGE: 34 YEARS, OCC: AGRICULTURE
ALL R/O CHINTALGERA VILLAGE,
TQ. & DIST: BIDAR-585401.
2. BASAMMA W/O LATE RAMANNA
AGE: 65 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O CHINTALGERA VILLAGE,
TQ. & DIST: BIDAR.
... PETITIONERS
(BY SRI.SHIVASHARANA REDDY, ADVOCATE)
AND
1. ARJUN S/O LATE YALLAPPA
SINCE DECEASED BY HIS LR'S
2
a) BASAMMA W/O LATE ARJUN
AGE: 60 YEARS, OCC: HOUSEHOLD.
2. LINGAPPA S/O LATE ARJUN
SINCE DECEASED BY HIS LR'S
a) SMT. LAXMI W/O LATE LINGANNA
AGE: 40 YEARS, OCC: HOUSEHOLD.
b) NANDU S/O LATE LINGANNA
AGE: 21 YEARS, OCC: AGRICULTURE.
c) SRIDEVI D/O LATE LINGANNA
AGE: 20 YEARS, OCC: HOUSEHOLD
ALL R/O CHINTALGERA VILLAGE,
TQ. & DIST: BIDAR.
3. KRISHNA S/O LATE ARJUN
AGE: 38 YEARS, OCC: AGRICULTURE.
4. VEERESHAM S/O LATE ARJUN
AGE: 36 YEARS, OCC: AGRICULTURE.
5. BEKSHAPATHI S/O LATE ARJUN
AGE: 34 YEARS, OCC: AGRICULTGURE,
ALL R/O CHINTALGERA VILLAGE,
TQ. & DIST: BIDAR-585401.
... RESPONDENTS
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT ORDER OR DIRECTION QUASHING THE IMPUGNED
ORDER ANNEXURE-F DATED 10.01.2017 PASSED IN OS
NO.92/2009 BY COURT OF PRL. CIVIL JUDGE (SR.DN.) BIDAR
ON I.A.NO.15, 16 & 17.
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THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners / defendants filed the present writ petition against the order dated 10.01.2017 on IA Nos.15, 16 & 17 filed in O.S.No.92/2009 on the file of Prl. Civil Judge (Sr.Dn.) Bidar allowing the application on IA No.15, 16 & 17 to bring the LRs of plaintiff No.(ii).
02. The respondent was the plaintiff before the trial court filed O.S.No.92/2009 for partition and separate possession in respect of the suit schedule properties contending that the plaintiff and defendants are members of the joint family and the suit schedule properties are ancestral properties and they are entitled for partition. The written statement filed by the LRs of the defendant No.2(a)(b)(c) denied the plaint averments and contended that the plaintiff 4 is stranger to the defendants. Therefore sought for dismissal of the suit.
03. After framing of issues, when the case was posted for evidence, the counsel for the plaintiff filed memo dated 27.11.2015 stating that LR of the plaintiff No.(ii) died on 27.11.2015. Therefore he prays time to bring the LRs. Accordingly the LRs of the plaintiff No.(ii) filed IA No.15 U/o 22 Rule 3 R/w 151 CPC, IA No.6 U/o 22 Rule 9 R/w 151 CPC and IA No.17 under Section 5 of the Limitation Act, contending that the suit for partition filed the original plaintiff died and his LRs are brought on record. The deceased Linganna S/o Late Arjun LR No.(ii) of deceased plaintiff has died on 27.11.2015 leaving behind his LRs 1, 3, 5 and others mentioned in the application and also stated that a separate application was also filed to condone the delay and set aside the abatement order. The said applications 5 was resisted by filing objections. The trial court by an order dated 10.01.2017 allowed the said applications. Hence the present writ petitions are filed.
04. I have heard Shri. Shivasharana Reddy, the learned counsel for the petitioners/defendants contended that the impugned order passed by the trial court allowing the applications on IA Nos.15, 16 and 17 to bring the LRs of plaintiff No.ii is erroneous and contrary to material on record. The respondents have not shown any valid reason for the delay and filed the applications before the court by making false statement on oath before the Trial Court and therefore false oath statement made by the respondents is offence punishable U/Sec.181 and 182 of I.P.C. Non filing of the LRs application within the time have accrued to the defendants valuable rights cannot be taken away by false statements. 6 Therefore he sought to allow the writ petitions and set aside the impugned order.
05. Having heard the learned counsel for the petitioners, it is undisputed fact that the respondents filed a suit for partition in respect of the suit schedule immovable properties contending that the suit schedule are joint family properties of plaintiff and defendants and the same is denied by the present petitioner who was the defendant by filing the written statement contending the plaintiff is an utter strangers to the defendants. Whether the suit property is joint family property or property of the defendants as alleged, the same has to be adjudicate between the plaintiff and defendants after adducing and producing oral and documentary evidence on record. Mere allowing the LR application one of the plaintiff will no way prejudice to the case of the petitioner defendant, even though there was 9 7 months 21 days delay in filing the applications. Ultimately the rights of the parties has to be decided based on the merits and the LRs plaintiff No.(ii) cannot be thrown out of the court on mere technicality and the courts meant to do the substantial justice to the parties. "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right to do in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
06. In the present case admittedly the dispute between the parties, is in respective immovable properties and the suit is for partition and separate 8 possession. The matter has to be adjudicated on merits and mere technicality as there was a delay in filing LR application in respect of the plaintiff No.ii cannot be a ground to deprive rights of the parties in respect of the immovable properties.
07. The trial court considering the entire material on record as recorded a finding as under:
"On perusal of record, present suit is filed for partition of suit properties by one Arjun S/o Late Yellappa. As he passed away his LRs have been brought on record on plaintiff (i) to (v) out of them plaintiff No.(ii) is reported as dead and present IAs filed to bring on record the LRs of said plaintiff. As there are other plaintiffs and suit is for partition, the suit is not abated is claimed by the defendants. It is a suit for partition all the legal heirs are necessary parties. There is no bar for impleading even at any stage of the case. Hence the objection of the defendants in this regard is untenable. Hence if the delay is condoned and LRs of 9 plaintiff No.(ii) are brought on record, it will not cause irreparable loss or injury to them. Therefore rejection of IAs only on the ground of delay is not possible in the interest of justice.
Hence IA XV to XVII are allowed, the delay is condoned and abatement is set aside and LR's of plaintiff No.(ii) are brought on record."
08. The impugned order passed by the trial court allowing the applications to bring the LRs of plaintiff No.(ii) is in accordance with law. The petitioner has not made out any ground to interfere the impugned order passed by the trial court under Article 227 of the Constitution of India.
Accordingly writ petitions are dismissed.
Sd/-
JUDGE SMP