Karnataka High Court
Shubhalaxmi vs Karunakara Rai on 17 June, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.11397 OF 2021 (GM-CPC)
BETWEEN:
SHUBHALAXMI
D/O LATE SULOCHANI
AGED ABOUT 62 YEARS
SHRINIDHI HOUSE
MARAKADA VILLAGE
KUNJATHA BAIL POST
MANGALURU-575015
...PETITIONER
(BY SRI.SHASHIKANTH PRASAD, ADVOCATE)
AND
1. KARUNAKARA RAI
S/O LATE SULOCHANI
AGED ABOUT 64 YEARS
D.NO.2-104-23
NEAR DR SHIVARAMA
KARANTHA NAGARA BADAVANE
MARY HILL, BONDEL POST
MANGALURU-575008, D.K.
2. DIVAKARA RAI
S/O LATE SULOCHANI
AGED ABOUT 60 YEARS
UTTHANA HOUSE
2
TENKA MIJAR VILLAGE
MIJAR POST
MANGALURU TALUK-574225
3. SHUBHKARA RAI
S/O LATE SULOCHANI
AGED ABOUT 38 YEARS
KAYYARABAIL HOUSE
MARKADA VILLAGE
MANGALURU TALUK-575015
4. SHRUTHI
D/O SHUBHALAXMI
AGED ABOUT 34 YEARS
SHRINIDHI HOUSE
MARAKADA VILLAGE
KUNJATHBAIL POST
MANGALURU-575015
5. YASHODA
W/O LATE RAMANNA RAI
AGED BOUT 82 YEARS
MIJARUGUTTU HOUSE
TENKA MIJAR VILLAGE
MIJAR POST
MANGALURU TALUK-574225
6. BALAKRISHNA
S/O LATE RAMANNA RAI
AGED ABOUT 60 YEARS
MIJARUGUTTU HOUSE
TENKAMIJA VILLAGE
MIJAR POST
MANGALURU TALUK-574225
ALSO AT
BALAKRISHNA
S/O LATE RAMANNA RAI
AGED ABOUT 60 YEARS
3
FLAT NO.303,
EAST COAST RESIDENCY
ROCK DALE LAYOUT
VISHAKAPATTANAM-3
7. VIJAYALAKSHMI
D/O LATE RAMANNA RAI
AGED ABOUT 58 YEARS
R/AT MIJARGUTTU HOUSE
TENKAMIJA VILLAGE
MIJAR POST
MANGALURU TALUK-574225
ALSO AT
VIJAYA
D/O LATE RAMANNA RAI
W/O SHRIDHAR RAI
AGED ABOUT 58 YEARS
R/AT ANGLES PARADISE
FLAT NO.404
JAI BHAVANI MATHA ROAD
ANDHERI (W), MUMBAI-400058
8. PRAVEEN KUMAR
S/O LATE RAMANNA RAI
AGED ABOUT 56 YEARS
R/AT MIJARUGUTTU HOUSE
TENKAMIJAR VILLAGE
MIJAR POST
MANGALURU TALUK-574225
9. VANDANA
D/O LATE RAMANNA RAI
AGED ABOUT 53 YEARS
R/AT MIJARUGUTTU HOUSE
TENKAMIJAR VILLAGE
MIJAR POST
MANGALURU TALUK-574225
ALSO AT
VANDANA
4
D/O LATE RAMANNA RAI
AGED ABOUT 53 YEARS
R/AT G.4, SAMRUDDHI APARTMENT
NEAR CITY HOSPITAL
GANESH GARDEN ROAD
KADRI, MANGALURU-575003
10. MANJUNATHA
S/O LATE RAMANNA RAI
AGED ABOUT 52 YEARS
R/AT FLAT NO.310, HI STREAT
KULSHEKAR
MANGALORE-575005, D.K.
11. SABITHA
W/O LATE LAKKAPPA RAI
AGED ABOUT 78 YEARS
R/AT KAYYARABAIL HOUSE
MARAKADA VILLAGE
KUNJATHBAIL POST
MANGALURU TALUK -575015
D.K.
12. ULLAS KUMAR
S/O LATE LAKKAPPA RAI
AGED ABOUT 54 YEARS
R/AT KAYYARABAIL HOUSE
MARAKADA VILLAGE
KUNJATHABAIL POST
MANGALURU TALUK -575015
D.K.
13. SHREESHA
D/O LATE LAKKAPPA RAI
AGED ABOUT 53 YEARS
R/AT KAYYARABAIL HOUSE
MARAKADA VILLAGE
KUNJATHBAIL POST
MANGALURU TALUK -575015
5
D.K.
ALSO AT
SHREESHA
D/O LATE LAKKAPPA RAI
AGED ABOUT 53 YEARS
R/AT SANKALPA, OPP. GBS SCHOOL,
GANDHINAGAR
KAVOOR POST AND VILLAGE
MANGALURU -575015
DK
14. KISHORE KUMAR
S/O LATE LAKKAPPA RAI
AGED ABOUT 51 YEARS
R/AT KAYYARABAIL HOUSE
MARAKADA VILLAGE
KUNJATHABAIL POST
MANGALURU TALUK - 575015
DK
15. KIRAN KUMAR
S/O LAKKPPA RAI
AGED ABOUT 49 YEARS
R/AT OMKARA
SHARADA NAGARA
OPP. SHARADA BHAJANA MANDIRA
KAIKAMBA, GANESHPURA
KATIPALLA-575030
MANGALURU TALUK
DK
.....RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY III ADDL. SR. CIVIL JUDGE AND
JMFC AT MANGALORE, D.K. DATED 09.10.2019 IN FDP
NO.161990 IN O.S.NO.114/1986 ON IA NO.37 VIDE
ANNEXURE-A AND ETC.,
6
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioner - plaintiff No.3 questioning the order dated 23.09.2019, wherein the FDP Court has proceeded to appoint a Court Commissioner. The said order is sought to be recalled at the instance of the petitioner herein by filing an application under Section 151 of CPC. The learned Judge has rejected the said application. While rejecting the said application, the learned Judge has observed in the order that the plaintiffs are guilty of protracting hearing of the final decree proceedings. The learned Judge has also taken judicial note of the fact that the plaintiffs are unnecessarily filing several interim applications. It is in this background, the learned Judge has proceeded to reject the application by observing that plaintiffs 7 intend to drag the proceedings by filing such applications.
2. Heard learned counsel appearing for the petitioner. Perused the grounds urged in the writ petition. I have also examined the order under challenge.
3. The captioned writ petition arises of the final decree proceedings. The Final Decree Court to work out the feasibility of partition has appointed a Court Commissioner. The said order is sought to be challenged by the petitioner - plaintiff No.3. The grievance of the petitioner - plaintiff No.3 is that the applications are filed seeking inclusion of properties, which were left out while filing the suit. The learned counsel for the petitioner by placing reliance on the judgment rendered in the case of SMT.JANAKI VS. SMT.LALITHA AND OTHERS reported in 2015(5) KCCR 455 contends that the Final Decree Court is 8 vested with the jurisdiction to determine as to whether other properties, which are left out are also ancestral properties. The plaintiff claims that in the event those properties are found to be ancestral properties, the Final Decree Court is vested with the jurisdiction to pass additional preliminary decree. Therefore, the present application is filed to recall the earlier order of the FDP Court, thereby appointing a Court Commissioner.
4. When a question is posed to the learned counsel appearing for the petitioner as to what happened to the amendment application. He fairly submits that the said application is rejected. If amendment application filed by the petitioner - plaintiff No.3 seeking inclusion of other properties is rejected, I am unable to understanding as to how the petitioner - plaintiff No.3 is seeking to recall of the order of appointing a Court Commissioner. Though 9 this Court has no cavil to the propositions laid down in the above case, in view of the dismissal of the amendment application, the question of further adjudication and passing additional preliminary decree does not arise for consideration in the present set of facts. This Court has also taken judicial note of the fact that several applications were rejected by the Court below by imposing cost. The petitioner has not paid the cost. This clearly reflects the conduct of the petitioner - plaintiff No.3 in the manner in which she is prosecuting the final decree proceedings. Therefore, the order under challenge is in accordance with law and would not warrant any interference at the hands of this Court.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE NBM