Karnataka High Court
Smt. Chandramma vs Sri. Indhudhara on 3 February, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:6178
WP No. 36792 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.36792 OF 2025 (GM-CPC)
BETWEEN:
1. SMT. CHANDRAMMA,
W/O LATE ESHWARAPPA,
AGED ABOUT 71 YEARS,
AGRICULTURIST,
R/O CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 215.
2. SMT. MANJULA
D/O ESHWARAPPA
AGED ABOUT 52 YEARS
3. SMT. VEENA,
D/O ESHWARAPPA,
AGED ABOUT 49 YEARS
Digitally signed 4. SRI. PRAKASH,
by CHANDANA S/O ESHWARAPPA,
BM
AGED ABOUT 47 YEARS
Location: High
Court of
Karnataka 5. SRI. HAREESH,
S/O ESHWARAPPA,
AGED ABOUT 37 YEARS
NO.3 TO 5 ARE RESIDING AT
R/O CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 215.
...PETITIONERS
(BY SRI. LEELESH KRISHNA, ADVOCATE)
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NC: 2026:KHC:6178
WP No. 36792 of 2025
HC-KAR
AND:
1. SRI. INDHUDHARA,
S/O ESHWARAPPA,
AGED ABOUT 58 YEARS,
AGRICULTURIST
2. SRI. PANCHAKSHARI,
S/O ESHWARAPPA,
AGED ABOUT 68 YEARS,
AGRICULTURIST
3. SMT. NIRMALA,
D/O LATE ESHWARAPPA,
AGED ABOUT 63 YEARS,
HOUSEHOLD WORK
4. SMT. NAGARATHNAMMA,
D/O LATE ESHWARAPPA,
AGED ABOUT 61 YEARS,
HOUSEHOLD WORK
5. SMT. CHANDRAMMA,
D/O LATE ESHWARAPPA,
AGED ABOUT 59 YEARS,
HOUSEHOLD WORK.
RESPONDENTS 1 TO 5 ARE
R/O CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 215
...RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION
OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER, OR DIRECTION QUASHING
THE CONSEQUENTIAL IMPUGNED ORDER DATED 25-07-2024
PASSED ON I.A. NO. 2 IN F.D.P. NO. 19/2019 BY THE COURT OF
THE PRL. CIVIL JUDGE AND JMFC, CHANNAGIRI, PRODUCED AT
ANNEXURE-H AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2026:KHC:6178
WP No. 36792 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the petitioners-defendant Nos.3, 6, 7, 8 and 9 in FDP No.19/2019 on the file of the Prl. Civil Judge and JMFC, Channagiri (for short "the Trial Court"), is directed against the impugned orders dated 25.07.2024 and 19.04.2025 passed on I.A.Nos.2 and 3 by the Trial Court, whereby the applications, I.A.Nos.2 and 3 were allowed by the Trial Court by holding as under:
"ORDER ON IA No . II The applicants filed in instant application under Order 1 Rule 10(2) R/w Sec.151 of C.P.C., seeking permission to come on record as respondent No.3 to 5.
2. SOME AND SUBSTANCES OF THE AFFIDAVIT.
The applicant namely, Chandramma daughter of Late Eshwarappa has sworn the affidavit for herself and and behalf of her sisters/other applicants. She stated that, her brother namely, respondent No.1 filed suit bearing O.S.No.50/2000 before this court for the relief of partition and separate possession against herself, her sisters, mother, brother and second wife of her father. In view of death of her father, she along with other applicants are entitled share, in the share allotted to her father. The final decree proceedings is continuation of original suit and it is filed after coming into -4- NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR force of the Hindu Succession Act, amendment held in the year, 2005. Thus, the applicants are also got equal share that of a son. The sons and daughters are having equal share in the suit property. Her father has not left any testamentary document in respect of his share and as such his share needs to be allotted to all the legal heirs in view of the ratio laid down by the Hon'ble High Court of Karnataka. Thus, the modification of decree is necessary. The applicants were defendant No.3 to 5 at the original suit bearing O.S.No.50/2000. Even after, death of father, the petitioners have intentionally not included the as legal heirs of Late Eshwarappa. Thus, the petitioners are necessary parties and be permitted to participate in the proceedings. Hence, prays to allow the application.
3. STATEMENT OF OBJECTION FILED BY THE PETITIONER S AS UNDER:
The petitioners filed statement of objection contending that, the application is bad under law and as such is not maintainable. There is no justification in the affidavit for inmpleadement of parties. The proposed parties have not contested the suit before the trial court and as such no share has been allotted to them. If the application is allowed, it amounts to abuse of process of law as the applicants have not conferred shares in a preliminary decree. They also filed Writ Petition before the Hon'ble High Court of Karnataka in W.P.No.9427/2022 and unless that matter has been decided the present application needs no consideration. The applicants have already lost their rights under the law of -5- NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR limitation in terms of Article 109/110 of the Limitation Act and as such their application needs to be rejected. If at all the court comes to conclusion that, the applicants are necessary parties, no share can be allotted to them and modification cannot be given into effect. By these contention, the petitioners pray to reject the application.
4. Based on the statements setforth by the proposed petitioners and the respondents, the following points arise for my consideration;
POINTS
1. Whether the presence of respondent No.3 to 5 is necessary to decide the lis of the parties effectually and completely?
2. What order?
5. Heard the learned counsel for the applicants and the petitioners. Perused the written arguments of the petitioners and also the records. On perusal of the same my findings to aforesaid points as under:
POINTS Point No.1 : In the Affirmative Point No.2 : As per the final order for the following, REASONS
6. Point No.1:- The applicants claimed that, their father died after the preliminary decree. As they are legal heirs of Late father, are necessary parties and they are entitle to share in the share, allotted to him. According to the applicants their father had not left any testamentary -6- NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR document in respect of his share is concerned. The petitioners have opposed the application on the ground that, no share was allotted them in O.S.No.50/2000 and applicants have not contested the said suit. As such, they are not necessary parties to this suit and if at all they come on record it would abuse of process of law.
7. As regards this point is concerned, I would like to take note of the petition paragraph No.3. Wherein, the petitioners themselves declared that, the petitioner No.1 died on 18.08.2006 i.e., after passing of the preliminary decree. The petitioners stated in the said paragraph, in succeeding lines that, his wife Smt.Chandramma is only legal heir left out in the proceedings and rest of the heirs are already parties to this petition. However, the applicants are not parties to the petition and even the petitioners have not disputed the relationship. The only contention to oppose the application is, no share has been allotted to the applicants in the original suit and as such they are not necessary parties.
8. It is in this connection, I have carefully perused the copy of judgment and decree passed in O.S.No.50/2000. Wherein, this court while concluding Issue No.1, in the affirmative, had categorically held as under;
"Therefore, it can be seen that the defendant No.3 to 5 are not the joint family members of the plaintiff and defendants and they shall have to claim their share if any in the share of their father namely first defendant Eshwarappa. Now plaintiff, defendant No.1, 2 and 6 to
9 constitute Hindu Undivided Joint Family. The marriage of sixth defendant was performed in the year 1996. The defendant No.7 to 9 are not yet married."
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9. Having opined so, this court had decreed the suit granting 1/7th share to defendant No.1, 2, 6 to 9 in item No.1, 2, 4 to 11 properties. Admittedly, the defendant No.1, in the said suit was the father of applicants namely, Eshwarappa S/o Basappa. As per the petition pleadings, he died on 18.08.2006 and without any testamentary document which, as can be gathered from the petition averments and the affidavit filed in support of the application. Even the petitioners have also not setup any testamentary succession in so far as the share of Late Eshwarappa is concerned, either in their objection statement or in the written arguments filed in connection with this application. Under such circumstances, the Sec.8 of Hindu Succession Act comes into play and after the death of male Hindu, who died to without any testamentary document, his property, ultimately devolves upon the class-I legal heirs specified in schedule attached to the said Act. As per the schedule, the daughters are also the class-I legal heirs and as such they are absolutely entitled share in the share attached father of the petitioners and applicants. The petitioners, though having knowledge that the applicants are parties in the suit and have falsely stated that, the petitioner No.1(a) is only the legal heir left out and rest of the legal heirs are on record. Thus, in my considered opinion, the applicants being the class-I legal heirs of Late Eshwarappa are absolutely necessary parties to this petition and they are prima facie entitled the share in the property or share left by Late Eshwarappa.
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10. The other ground that has been urged by the learned counsel for petitioners is that, the applicants have filed Writ Petition No.9427/2022 and which is pending before the Hon'ble High Court of Karnataka with regards to interpretation of the rights are concerned and till then the application is not tenable. It is in this regard, I would like to take note of the memo filed by the learned counsel for respondent No.1 and 2, on 17.01.2024. He also filed the copy of order passed by the Hon'ble High Court of Karnataka in the said Writ Petition. Wherein, the petitioners of the said petition filed memo and accordingly the Hon'ble High Court of Karnataka was pleased to dismiss the Writ Petition as withdrawn. Thus, as on the date, the Writ Petition is not pending before the Hon'ble High Court of Karnataka and that would not be hurdle for the applicants to come on record. Thus, in my considered opinion, the present applicants are absolutely necessary parties as they being class-I legal heirs of deceased Eshwarappa, who allotted with 1/7th share in the petition schedule properties. Accordingly, the application of applicants needs to be allowed. Therefore, the Point No.1 held in the Affirmative.
11. Point No.2:- As a result, this court proceeds to pass the following.
ORDER The IA.No.II filed under Order 1 Rule 10(2) of C.P.C., is hereby allowed.
-9-NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR Consequently, the proposed respondent No.3 to 5 are permitted to come on record as respondent No.3 to
5. For amendment and amended petition."
"ORDER ON IA NO.III It is the application of respondents filed U/Sec.151 of CPC for modification/enlargement of shares, in view of death of father and amendment to Hindu Succession Act, 2005. This application is filed at the stage of commissioner's report.
2. Some and substance of the affidavit as under:-
The first respondent has filed the supporting the affidavit and wherein, he has stated that, the suit bearing O.S.No.50/2000 for the relief of partition and separate possession filed against the father, brother, sister and second wife of deponent's father. In view of death of father of deponent and in view of amendment held to the Hindu Succession Act, 1956, the shares which were allotted to the parties needs to be modified/enlarged to the extent of 1/10th share to each. Thus, the deponent prays to allow the application.
3. Statement of objection filed by the petitioners as under;
The petitioners have contested the application stating that, there is no procedure for modification of share, which were allotted to the parties and such modification cannot be proceeded through the applications of non share holders of the suit schedule properties. The petitioners have contended
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR that, the respondents/ applicants were not parties to O.S.No.50/2000 and no such share was allotted to them in the said suit. Hence, the present application is not tenable. If the application is allowed, it amounts setting aside the decree passed by this court, sitting as an appellate court. The said mode is not acceptable under law without challenge or without alteration of the preliminary decree passed by this court.
4. The petitioners have also contended that, the applicants have maintained the Writ Petition No.9427/2000, before the Hon'ble High Court of Karnataka and wherein, the very subject matter is ceased off for interpretation. Unless the interpretation by the Hon'ble High Court of Karnataka, in the said Writ Petition, the present application is not tenable. The applicants have already lost their right to get modify the decree in terms of Article No.109 and 110 of the Limitation Act. Thus, the petitioners pray to reject the application.
5. Based on the application and the statement of objection, the following points would arise for my consideration.
POINTS
1. Whether the application is tenable without the shares to the female members of the family?
2. What Order?
6. Heard the learned counsel for the petitioners and also perused the written arguments filed by him. Heard the learned counsel for the respondents. Perused the records
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR and on perusal of the same my findings to aforesaid points as under:-
POINTS Point No.1 : In the Affirmative, Point No.2 : As per final order for the following:
:: REASONS ::
7. Point No.1:- The present applicant is filed by the respondent No.1 for modification/enlargement of shares of all the parties, in view of amended provision of the Sec.6 of Hindu Succession Act, 2005. The deponent has stated that, the sisters are conferred with the legitimate share in the suit schedule properties, in view of the amendment held to the Sec.6 of the Hindu Succession Act, 1956 and they are coparceners on far with the sons. Thus, the deponent has prayed to pass the second preliminary decree, modifying the shares allotted to the parties and also ascertain the shares to the respondent No.3 to 5.
8. The learned counsel for respondent No.1 to 5 has categorically submitted that, in view of change in law, the respondent No.3 to 5 being daughters of Eshwarappa would become coparceners and are in entitled the share in the suit schedule properties, on account of their birth in the family. The learned counsel for petitioner has categorically opposed the application stating that, no share had been allotted to the respondent No.3 to 5, in preliminary decree, passed in O.S.No.50/2000. Therefore, the respondent No.3 to 5 or the respondent No.1 and 2 can maintain the present application
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR for modification of shares. If at all, the application is allowed, it would amounts to setting aside the preliminary decree that has been passed by this court sittings an appellate authority. Thus, he has prayed to reject the application.
9. Having taken note of the factual background for pressing into service of the present application, it appears that, the question of law is involved to consider the application. Before considering the legal aspects of the matter, I would like to take note of the observations made by this court, while passing the preliminary decree, with reference to the respondent No.3 to 5 are concerned. It is not at dispute that, Eshwarappa had two wives and out of first wife the petitioner and respondent No.1 and 2 are born and out of second marriage the respondent No.3 to 5 are born. In that connection, this court has observed at Page No.8, Para No.12 of the judgment to this effect that, "12. The defendants have not at all denied that items 1, 2 and 4 to 11 properties are the joint family properties. Though the plaintiff is claiming 1/10th share in the suit schedule properties. Without any pleadings in the evidence he has taken contention that 1st defendant during the life time of Basamma has got married Chandramma. The defendants have clearly denied the same. The plaintiff has not at all mentioned what is the age of 1st defendant. As admitted by PW.1 the marriage of 4th defendant was performed about 24 years back and the marriage of 3rd defendant was performed about 28 to 30 years back. This fact clearly shows that 1st defendant age is more than 50 years. The plaintiff has not at all produced any material evidence on record to show that during the life time of 1st wife of Eshwarappa got married Chandramma. of 1st defendant."Therefore, without any pleadings, the contention of the plaintiff that during the life time of 1st wife of 1st defendant got married Chandramma cannot be accepted at all. Therefore, I
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR hold that defendants 6 to 9 are not the illegitimate children of 1st defendant."
10. Having taken note of the aforesaid phraseology of the observation at the judgment passed by this court, what it appears is, this court has categorically opined that, the defendant No.6 to 9 in original suit and respondent No.3 to 5 herein are not the illegitimate children or legal kinship of Late Eshwarappa. This court has categorically held that, no such evidence is available as to the second marriage during the subsistence of first marriage or during the lifetime of first wife. Thus, in view of the said observations and the opinion expressed by this court, which is not challenged or set aside by any competent authority, the respondent No.3 to 5 would be the legitimate child to Late Eshwarappa and are on far with the petitioners and the respondent No.1 and 2, in so far as the share in petition schedule properties concerned.
11. Having considered the legitimacy or entitlement of legitimate claim by the respondent No.3 to 5, my attention would goes to the further observations made by this court, at paragraph No.10, Page No.4 and which is in effect that, "The relationship between plaintiff and defendants is also admitted. The plaintiff is the son of 1st defendant, defendants 2 to 9 are children of 1st defendant. The plaintiff and defendants 2 to 5 are born to the 1st wife of 1st defendant namely Basamma. The defendants 6 to 9 are born to 2nd wife of Eswarappa namely Chandramma. The plaintiff who is examined as PW.1, in his cross examination has clearly admitted that marriage of defendants 3 to 5 was performed prior to July 1994. This fact is also not seriously disputed. Therefore, it can be seen that defendants 3 to 5 are not the joint family members of the plaintiff and defendants and they shall have to claim their share if any in the share of their father namely 1st defendant Eswarappa."
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12. The aforesaid phraseology categorically unveils the consideration of the shares of respondent No.3 to 5 are concerned was as per the prevailing amendment to the Hindu Succession Act, i.e., Karnataka Amendment Act. However, the Central Amendment was taken place to the Sec.6 of Hindu Succession Act, in the year 2005 and thereby new Sec.6 is added by way of submission. Wherein, the enactment categorically confess the right upon a daughter of a coparcener by birth, she becomes coparcener in her own right, in the same manner as the son. It is further declared that, she has the same rights in the coparcenery property as she would have had if she had been a son and with the certain limitations and the liabilities. The barring clause is the proviso appended to the said section and according to the same, the beneficiary of Sec.6 would not get any legitimate claim in and over the coparcenary properties, if which were subject of partition or alienation prior to the 20th day of December 2004.
13. Looking to the aforesaid provision, it is essential to note that, whether such barring events had taken place in the case on hand or in so far as the suit schedule properties are concerned. The contesting petitioners have not stated anything regarding alienation prior to 20.12.2004 or partition prior thereto. The only objection that has been raised by the petitioners is the partition suit filed by the petitioners in O.S.No.50/2000 was decreed much prior to the amendment to Sec.6 of the Hindu Amendment Act. Therefore, it is submitted that, the respondent No.3 to 5 or deponent can
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR seek modification or enlargement of shares in terms of Articles 109 or 110 of the Limitation Act.
14. The same is very strange submission and that cannot be regarded in view of the ratio laid down by the Hon'ble Supreme Court of India in the matter between (2011) 9 SCC 788 in the matter between Ganduri Koteshwaramma and another v/s Chakiri Yanadi and another. Wherein, the Hon'ble Apex Court of India was pleased to held as under;
"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation."
15. In addition to the aforesaid dictum, this court would like to rely upon the judgment of the Hon'ble Apex Court of India, passed in the matter between Vineeta Sharma V/s Rakesh Sharma, reported in (2020) 9 SCC 1. Wherein, it is held as under;
"137.4 The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR he was survived by a female heir, of Class-I as specified in theschedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal."
16. Having strengthened with the ratio of the Hon'ble Apex Court of India, it is quint essential to point note that, the partition suits will not be ended until the final decree is been passed. The final decree proceedings would always be treated as continues process of original suit. Redetermination of shares in the changed circumstances can be done even at the stage of final decree proceedings, until the final decree is been passed. In the case on hand also, no such final decree is passed by this court and it is yet to be drawn. Under such circumstances, the argument that has been canvased by the learned counsel for petitioners cannot accepted. The determination of shares to the parties in view of amended provision, would not amounts revisitation of the observations made by this court. It is only a meeting the changed circumstances under law.
17. As is taken note of above, the Hon'ble Supreme Court of India was pleased to held with the categoric directions that, the benefit of amendment of Sec.6 to be enhanced to the beneficiaries even at the stage of final decree proceedings and even at the stage of an appeal also. Under such circumstances, the application filed by the deponent is absolutely tenable. The respondent No.3 to 5
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR being the daughters of Late Eshwarappa, who had not got the share in view of the then prevailing Karnatapa Amendment Act to the Hindu Succession Act are not entitled equal shares in the suit schedule properties on par with the daughters, who married after July 1994. In view of the amended provision and in view of the ratio laid down by the Hon'ble Supreme Court of India referred above, the respondent No.3 to 5 would get right by birth in the petition schedule properties or the coparcenary properties. Therefore, they are entitled equal share in the suit schedule properties along with the petitioner and other respondents.
18. The preliminary decree confers 1/7th shares to the plaintiff and the defendant No.1, 2, 6 to 9, excluding the defendant No.3 to 5 therein and the respondent No.3 to 5 herein. In view of changed circumstances before passing the final decree, in consonance with the preliminary decree passed in O.S.No.50/2000, the respondent No.3 to 5 are also entitled equal share. Therefore, the shares of the parties should be redetermined. The Eshwarappa died before taking any share in the suit schedule properties. The petitioner No.1 to 5 and the respondent No.1 to 5 are the legal representatives of Late Eshwarappa and they would get equal shares in the suit schedule properties, in view of amended Sec.6 the Hindu Succession Act, 1956. Thus, the petitioners and the respondents are each entitled 1/10th share in the suit schedule properties. With these observations, the Point No.1 is held in the Affirmative.
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19. Point No. 2 :- As a result, I proceed to pass the following.
ORDER I.A.No.III filed under Sec.151 of C.P.C., by the respondent No.1 to 5 is hereby allowed.
The petitioners and the respondent No.1 to 5 are each entitled 1/10th share in the petition schedule properties.
Office is hereby directed to draw another preliminary decree as per this order and put up the same in original file.
No order as to costs."
2. Heard learned counsel for the petitioners and perused the material on record.
3. In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned orders passed by the Trial Court cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam
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NC: 2026:KHC:6178 WP No. 36792 of 2025 HC-KAR Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal - AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya
- (2022) 10 SCC 477. Accordingly, I do not find any merit in the petition and the same is hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 38