Karnataka High Court
Mrs. Fauzia Fazal vs Mr. Syed Ahmed on 21 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:21476
WP No. 4250 of 2023
C/W WP No. 4159 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.4250 OF 2023 (GM-CPC)
C/W
WRIT PETITION NO.4159 OF 2023(GM-CPC)
IN WP.NO.4250 OF 2023
BETWEEN:
MRS. FAUZIA FAZAL,
AGED ABOUT 61 YEARS,
W/O MR. SYED FAZAL AHMED,
R/AT: NO. 394/18,
9TH CROSS, 2ND BLOCK,
JAYANAGAR, BANGALORE - 560 011.
...PETITIONER
(BY SMT. NAYANA TARA B.G., ADVOCATE)
AND:
1. M/S ZEENATH TRANSPORT COMPANY,
Digitally BEING A PARTNERSHIP FIRM,
signed by
VANDANA HAVING ITS REGISTERED OFFICE AT:
S "ZEENATH HOUSE", MAIN ROAD,
Location: COWL BAZAAR, BELLARY 583 102.
High Court
of
Karnataka 2. MR. SYED AHMED,
AGED ABOUT 67 YEARS,
R/AT: APT NO.902,
PRESTIGE CLARKE WOOD,
NO.11 CLARKE ROAD,
NEAR RICHARDS PARK,
BANGALORE 560 005.
3. MRS. AMINA BEGUM,
AGED ABOUT 65 YEARS,
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NC: 2023:KHC:21476
WP No. 4250 of 2023
C/W WP No. 4159 of 2023
W/O AZIZULLAH KHAN,
R/AT 21 PALM GROVE
ROAD, AUSTIN TOWN,
BANGALORE 560 047.
4. MRS. FAREENA PARVEEN,
AGED ABOUT 60 YEARS,
W/O MR. SYED AHMED.
5. MR. SYED ASAD AHMED,
AGED ABOUT 39 YEARS,
S/O MR. SYED AHMED.
6. MR. SYED KHALID AHMED,
AGED ABOUT 36 YEARS,
S/O MR. AYED AHMED,
RESPONDENT NOS 4 TO 6
ARE RESIDING AT:
APT NO. 902, PRESTIGE,
CLARKE WOOD, NO.11,
CLARKE ROAD, NEAR
RICHARDS PARK, BANGALORE 560 005.
7. MRS. MARIAM TAKRIZ,
AGED ABOUT 59 YEARS,
W/O MR.TAKRIZ AHMED,
R/AT 30 COLES ROAD,
FRAZER TOWN, BANGALORE 560 005.
...RESPONDENTS
(BY SRI. RAJESH D.M., ADVOCATE FOR R1, R2, R4, R5 AND R6;
SRI. B.K. MANOHAR, ADVOCATE FOR R7;
VIDE ORDER DATED 08.06.2023, NOTICE TO R3 IS HELD
SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 20/04/2022 IN O.S.NO.7678/2017 AT ANNEXURE-K INSOFAR AS IT
DISMISSES I.A. BY THE PETITIONER PASSED BY THE VI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND ETC.,
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NC: 2023:KHC:21476
WP No. 4250 of 2023
C/W WP No. 4159 of 2023
IN WP.NO.4159 OF 2023
BETWEEN:
1. MRS. FAUZIA FAZAL,
AGED ABOUT 61 YEARS,
W/O MR. SYED FAZAL AHMED,
R/AT: NO. 394/18,
9TH CROSS, 2ND BLOCK,
JAYANAGAR,
BANGALORE - 560 011.
2. MRS. AYESHA YASMIN,
AGED ABOUT 68 YEARS,
W/O MOHAMMED GHOUSE,
R/AT: NI. 125/7,
JAMEELABAD COLONY,
VELLORE 632 001.
...PETITIONERS
(BY SMT. NAYANA TARA B.G., ADVOCATE)
AND:
1. MR. SYED AHMED,
AGED ABOUT 67 YEARS,
R/AT: APT NO.902,
PRESTIGE CLARKE WOOD,
NO.11 CLARKE ROAD,
NEAR RICHARDS PARK,
BANGALORE 560 005.
2. MRS. AMINA BEGUM,
AGED ABOUT 65 YEARS,
W/O AZIZULLAH KHAN,
R/AT 21 PALM GROVE
ROAD, AUSTIN TOWN,
BANGALORE 560 047.
3. MRS. MARIAM TAKRIZ,
AGED ABOUT 59 YEARS,
W/O MR.TAKRIZ AHMED,
R/AT 30 COLES ROAD,
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NC: 2023:KHC:21476
WP No. 4250 of 2023
C/W WP No. 4159 of 2023
FRAZER TOWN,
BANGALORE 560 005.
...RESPONDENTS
(BY SRI. RAJESH D.M., ADVOCATE FOR R1;
SRI. MANOHAR B.K., ADVOCATE FOR R3;
R2 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 20/04/2022 IN O.S.NO. 518/2020 AT ANNEXURE-E INSOFAR AS IT
DISMISSES I.A.NO.2 BY THE PETITIONERS PASSED BY THE VI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND ETC.,
THESE PETITIONS, COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
W.P.No.4159/2023 arises out of the impugned Order passed in O.S.No.518 of 2020, while, W.P.No.4250/2023 arises out of the impugned Order passed in O.S.No.7678 of 2017, both of which are pending before the trial court.
2. Heard learned counsel for the parties and perused the material.
3. The material on record discloses that following four suits are pending between the parties;
(i) O.S.No.320/2017 is filed by Ayesha Yasmin and Fauzia Fazal against Syed Ahmed and others for partition and separate possession of the alleged share in the suit schedule immovable properties. -5-
NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023
(ii) O.S.No.518/2020 is filed by Mariam Takrez against Syed Ahmed and others for partition and separate possession of the suit schedule property.
(iii) O.S.No.7678/2017 is filed by Mariam Takrez against M/s Zeenath Transport Company and others to dissolve the 1st defendant - Firm w.e.f. 19.10.2012, on which date, father of the plaintiff and defendant No.2 passed away and ceased to be a partner, etc.,
(iv) O.S.No.321/2017 is filed by Ayesha Yasmin and Fauzia Fazal against M/s Zeenath Transport Company and others to dissolve the 1st defendant - Firm and for other reliefs.
4. As can be seen from the details of aforesaid four suits and the impugned Order, the Trial Court has clubbed and consolidated all the four suits and has taken up all the suits for disposal together, in accordance with law.
5. During pendency of the proceedings, Mariam Takrez, plaintiff in O.S.No.7678/2017, who is also plaintiff in O.S.No.518/2020 filed memos seeking withdrawal of both the said suits on the ground that she has amicably settled the dispute with Syed Ahmed-defendant No.2 in O.S.No. 7678/2017 and defendant No.1 in O.S.No.518/2020. At that stage, petitioners herein who are -6- NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 arrayed as defendant Nos. 2 and 3 in both suits, filed the instant applications invoking Order 1 Rule 10(6) of the Code of Civil Procedure seeking transposition as plaintiffs in both the suits for permission to continue both the suits. By the impugned Order, the Trial Court rejected both the applications filed by petitioners in both suits, aggrieved by which, the petitioners are before this Court by way of the present petitions.
6. A perusal of the impugned Order and the material on record will indicate that it is an undisputed fact that the Trial Court consolidated and clubbed all the four suits together and is proceeding to dispose off all the suits in accordance with law. It is well settled that in the both suits for partition or suits between partners, all parties are co-sharers/co-owners/co-partners and all of them occupy the status/ position of both plaintiffs and defendants.
7. In the case of Smt.Gowramma vs Nanjappa and others - AIR 2002 KAR 7, the Hon'ble Division Bench of this Court has held that in the event the plaintiff in a suit for partition files a memo seeking dismissal of suit as withdrawn/settled out of Court, the Court would necessarily have to call upon the defendants to make submission as regards, whether they want to be transposed -7- NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 as plaintiffs and want to continue the suit or as to whether they have no objection for withdrawal of the suit and its closure. In the instant case, the very fact that the petitioners herein filed applications for transposition as plaintiffs in both the suits and to prosecute the suits, is sufficient to show that the petitioners had objected for closure of both the suits as withdrawn and had expressly / specifically sought for permission to continue both the suits by transposing themselves as plaintiffs in both the suits. In the aforesaid judgment, it is held as under:
"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 of 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 the 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 seek partition, he is seeking partition not only against the defendants but also against his co-plaintiff, if any. Similarly when a defendant -8- NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 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 defendants' claim for partition differently by providing for them under Section 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 settled 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 -9- NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 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, till 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, 1993 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 afresh 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
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NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 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:
(i) The order dated 3.2.1998 passed in O.S. No. 5/1991 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 a plaintiff No. 2 and the plaintiff is transposed as Defendant No. 10.
(iii) The suit by original plaintiff (who is renumbered as plaintiff No. 1 on transposition of 5th respondent) shall stand dismissed as settled out of Court.
(iv) The suit with transposed 5th defendant as plaintiff No. 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 of the matter expeditiously.
(vi) Parties to bear their respective costs.
8. In view of the aforesaid judgment of Hon'ble Division Bench of this Court, I am of the considered opinion that the Trial
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NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 Court clearly committed an error in passing the impugned order particularly, when all the four suits were already clubbed/consolidated and taken up together for disposal by the trial court prior to passing the impugned Order and consequently, the impugned order passed by Trial Court being contrary to law and has occasioned failure of justice warranting interference by this Court in the present petitions and the same deserves to be set- aside.
9. In the result, I pass the following:-
ORDER
(i) Both the petitions are hereby allowed.
(ii) The impugned Orders, both dated 20/04/2022 passed in O.S.No.7678/2017 and O.S.No.518/2020, on the file of the VI Additional City Civil and Sessions Judge, Bengaluru, are hereby set-aside.
(iii) The memos filed by the plaintiff - Mrs. Mariam Takrez in O.S.No.7678/2017 and O.S.No.518/2020 are hereby dismissed and both the suits are restored to the file of the trial court.
(iv) The applications filed by the petitioners for transposition as plaintiffs in O.S.No.7678/2017 and O.S.No.518/2020, are hereby
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NC: 2023:KHC:21476 WP No. 4250 of 2023 C/W WP No. 4159 of 2023 allowed and petitioners are directed to be transposed as plaintiffs in both the suits.
(v) Further, since the subject matter of all the four suits viz., O.S.No.320/2017, O.S.No.321/2017, O.S.No.7678/2017 and O.S.No.518/2020, which are already clubbed/consolidated together arises out of a commercial dispute within the meaning of Section 2 of the Commercial Courts Act, 2015, I deem it just and appropriate to exercise my powers under Article 227 of the Constitution of India r/w Section 24 of the CPC and also invoke Section 13 of the Commercial Courts Act, 2015 and direct all aforesaid four suits to be withdrawn from file of the trial court and be transferred to the designated Commercial Court for disposal in accordance with law.
(vi) The Registry of the Trial Court is directed to comply with this order forthwith and take necessary steps in this regard immediately.
(vii) All rival contentions on all aspects of the matter in all the aforesaid four suits are kept open and no opinion is expressed on the same.
Sd/-
JUDGE kcm/Srl.