Karnataka High Court
Venkavva W/O Duragappa Shastrigollar vs Laxman S/O Mallappa Jedar on 23 September, 2023
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NC: 2023:KHC-D:11146
WP No. 100317 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.100317 OF 2022 (GM-CPC)
BETWEEN:
VENKAVVA W/O. DURAGAPPA SHASTRIGOLLAR,
AGE: 52 YEARS, OCC: HOMEMAKER,
R/O: NAGAR SEVAARU NAGAR SABHE,
GOKAK - 591 307, DIST: BELAGAVI.
...PETITIONER
(BY SRI C.S. SHETTAR, ADVOCATE)
AND:
INDUMATI W/O. LAXMAN JEDAR,
SINCE DECEASED BY HER LRS
1. LAXMAN S/O. MALLAPPA JEDAR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: HOUSE NO. 2471 / 1,
MEERAPUR GALLI, SHAHAPUR,
MOHANKUMAR BELAGAVI - 590 001.
B SHELAR
2. SHIVAKUMAR S/O. LAXMAN JEDAR,
Digitally signed
by
MOHANKUMAR
AGE: 34 YEARS, OCC: AGRICULTURE,
B SHELAR
R/O: HOUSE NO. 2471 / 1,
MEERAPUR GALLI, SHAHAPUR,
BELAGAVI - 590 001.
3. SONAWWA @ SONABAI BASAVATAPPA MADALBHAVI,
AGE: 86 YEARS, OCC: HOMEMAKER,
R/O: 138 / 2, OPP: APMC,
GOKAK - 591 307, DIST: BELAGAVI.
4. SHAKUNTALA HANMANTAPPA GURLHOSUR,
AGE: 76 YEARS, OCC: HOMEMAKER,
R/O: H.NO. 86 / A, HUDCO COLONY,
NEAR GANPATHI TEMPLE,
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WP No. 100317 of 2022
GADAG-582 101.
5. SHANTHA BASVANTAPPA MADALBHAVI,
AGE: 62 YEARS, OCC: HOMEMAKER,
R/O: 138 / 2, OPP: APMC,
GOKAK - 591 307, DIST: BELAGAVI.
ASHOK BASAVANTAPPA MADALBHAVI,
SINCE DECEASED BY HIS L.RS
6. LALITA ASHOK MADALBHAVI,
AGE: 64 YEARS, OCC: HOMEMAKER,
R/O: H.NO.35/ 1, PLOT NO.156/A,
BALAJI NAGAR, KALASAPUR ROAD,
GADAG - 582 101.
7. SUPRIYA W/O. RAMAKRISHNA MARATHE,
AGE: 42 YEARS, OCC: HOMEMAKER,
R/O: NETRAVATI QUARTERS,
MANVALLI - 591 117,
TQ: SAVADATTI, DIST: BELAGAVI.
8. PRATIKSHA W/O. AMOL PORWAL,
AGE: 41 YEARS, OCC: HOMEMAKER,
R/O: GAYATRI NAGAR,
NEAR NAVRANG THEATER,
BENGALURU - 560 068.
9. PRAVEENKUMAR S/O. ASHOK MADALBHAVI,
AGE: 39 YEARS, OCC: PRIVATE SERVICE,
R/O: GAYATRI NAGAR,
NEAR NAVARANG THEATER,
BENGALURU - 560 068.
10. KALAVATHI W/O. VIKRAM SHRIKHANDE,
AGE: 46 YEARS, OCC: HOMEMAKER,
R/O: GHATAPRABHA - 591 306,
TAL: GOKAK, DIST: BELAGAVI.
VIJAYAKUMAR BASAVANTAPPA MADALBHAVI,
SINCE DECEASED BY HIS L.RS,
11. PREETI W/O. VIJAKUMAR MADALBHAVI,
AGE: 44 YEARS, OCC: HOMEMAKER,
R/O: NO. 1, JANTA PLOT, OLD HUBLI,
HEGGERI, SIDDARUD MATH ROAD,
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WP No. 100317 of 2022
HUBBALLI - 580 016, DIST: DHARWAD.
12. SUJATA SHEKAR SANNATIPPAGOL,
AGE: 44 YEARS, OCC: HOMEMAKER,
R/O: KHB COLONY, BASAVANKUNDACHI,
TQ & DIST: BELAGAVI - 590 001.
13. ANANDKUMAR BASAVATAPPA MADALBHAVI,
AGE: 49 YEARS, OCC: RTD.,
R/O: H. NO. 575, RENUKA NAGAR,
NEAR MILK DAIRY, HUBBALLI - 580 015,
DHARWAD.
14. KRISHNA HANAMANT GURLHOSUR,
AGE: 52 YEARS, OCC: PVT. SERVICE,
R/O: 86 / A, MIG - HUDCO COLONY,
NEAR GANPATHI TEMPLE, GADAG - 582 101.
...RESPONDENTS
(NOTICE TO R1 AND R2 ARE SERVED;
SERVICE OF NOTICE TO R10, R3-R14 WAIVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY
LEARNED I ADDITIONAL SENIOR CIVIL JUDE AT GOKAK IN
O.S.NO.529/2018 ON IA.NO.6 DATED 18.01.2022 VIDE ANNEXURE-
C; CONSEQUENTLY ALLOW THE APPLICATION UNDER I.A. NO.6
FILED U/SEC. 151 OF C.P.C., IN O.S.NO.529/2018 AT ANNEXURE-B
AND THEREBY PERMIT THIS PETITIONER TO FILE HER WRITTEN
STATEMENT AT ANNEXURE-B1 IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 100317 of 2022
ORDER
The captioned writ petition is filed by the defendant No.10 who is stranger purchaser questioning the order of the learned Judge passed on an application filed seeking permission to contest the proceedings by filing written statement. Learned Judge has rejected the application on the ground that the matter is now posted for judgment and therefore, there is no provision to permit the defendant to seek reopening of the suit and contest the proceedings by filing written statement. The said order is under challenge.
2. Heard learned counsel for the petitioner. There is no contest by the contesting respondents/plaintiffs.
3. Respondent Nos.1 to 3 have instituted a suit for partition and separate possession. The present petitioner who is arrayed as defendant No.10 is claiming title over three plots on the basis of registered sale deed executed by defendant No.9. The present petitioner/defendant No.1 has not contested the proceedings. On examining the -5- NC: 2023:KHC-D:11146 WP No. 100317 of 2022 material on record this Court would find that petitioner's vendors have not chosen to contest the suit by filing written statement. Admittedly, the petitioner is a purchaser prior to filing of partition suit. Though stranger purchaser has no voice in a partition suit but, in the present case on hand it is clearly evident that petitioner's vendor has not chosen to contest the suit. The present petitioner claimed that his vendor is the absolute owner of the property in question insofar as item No.1 is concerned. If petitioner's vendor has failed to contest the proceedings, then I am of the view that petitioner though being a stranger purchaser is entitled to lead limited evidence to substantiate that his vendor is an absolute owner of suit item No.1. If an opportunity is not provided to the petitioner, his rights will be directly effected. If petitioner is able to substantiate that his vendor is the absolute owner, he would succeed in saving property purchased under registered sale deed for valuable sale consideration. -6-
NC: 2023:KHC-D:11146 WP No. 100317 of 2022
4. On examining the records, I would find that there is total laxness on the part of the petitioner/defendant No.10, though counsel for petitioner tried to convince this Court that since parties were contemplating of settling the matter, he did not chose to contest the suit by filing written statement. Therefore, I am of the view that petitioner has to be saddled with exemplary cost of Rs.20,000/-.
5. The learned Judge to meet the ends of justice ought to have taken recourse to the order 18 Rule 17 of CPC and permitted petitioner to contest the proceedings by filing written statement. I am of the view that learned Judge has not exercised discretion judiciously and rejection of application in all probability would lead to miscarriage of justice and petitioner's right would be seriously prejudiced as his vendor has not chosen to contest the proceedings.
6. The Co-ordinate Bench of this Court in the case of Smt. M.G.Sharada Bai & Ors Vs Smt. Mytra reported -7- NC: 2023:KHC-D:11146 WP No. 100317 of 2022 in 2019 (3) KCCR 2437, placing reliance on judgment rendered by Hon'ble Apex Court has held that power under Rule 17 of order 18 of CPC can be exercised at any stage of the suit even after closer of evidence. The Co-ordinate Bench of this Court was of the view that the inherent power vested with the Trial Court is the only recourse and in deserving cases, the Court is bound to exercise judicial discretion. Learned Judge has declined to exercise the power conferred on him and therefore, order of the rejection of application is patently erroneous and would warrant interference at the hands of this Court.
7. For the reasons stated supra, I proceed to pass the following:
ORDER
i) Writ petition is allowed.
ii) The impugned order dated 18.01.2022 passed on I.A.No.VI by the learned I -8- NC: 2023:KHC-D:11146 WP No. 100317 of 2022 Additional Senior Civil Judge Gokak in O.S.No.529/2018 is hereby set-aside.
iii) The petitioner is permitted to file written statement and contest the suit subject to payment of cost of Rs.20,000/- payable to respondent/plaintiff on the next date of hearing.
iv) It is made clear that petitioner shall cooperate for speedy disposal of the suit and shall not seek unnecessary adjournments.
Sd/-
JUDGE AM List No.: 1 Sl No.: 25