Karnataka High Court
Sri Lakshmana vs Sri Aswathappa on 14 August, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:28730
WP No. 26512 of 2017
C/W CRP No. 13 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 26512 OF 2017 (GM-CPC)
C/W
CIVIL REVISION PETITION NO. 13 OF 2023
IN WP NO. 26512/2017
BETWEEN:
SRI MUNIYAPPA
AGED ABOUT 73 YEARS
S/O LATE SRI YELLAPPA
RESIDING AT NO 360
BEHIND YELLAMMA TEMPLE,
KENGERI FORT
BANGALORE - 560060.
...PETITIONER
(BY SMT.HEMALATHA B.V., ADVOCATE FOR
Digitally
signed by SRI.B.R. SRINIVASA GOWDA, ADVOCATE)
NARASIMHA
MURTHY AND:
VANAMALA
Location:
HIGH 1. SRI LAKSHMANA
COURT OF
KARNATAKA AGED ABOUT 76 YEARS
S/O LATE SRI YELLAPPA
R/AT NO 1916, KHB,
2ND CROSS, 3RD MAIN,
KENGERI HOUSING BOARD
BANGALORE - 560060.
2. SRI ASHWATHAPPA
AGED ABOUT 65 YEARS
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WP No. 26512 of 2017
C/W CRP No. 13 of 2023
S/O LATE SRI YELLAPPA
R/AT NO 260,
BEHIND YELLAMMA TEMPLE
KENGERI FORT
BANGALORE - 560060.
SINCE DEAD BY HIS LRS
2(a). SMT RATHNAMMA
AGED ABOUT 55 YEARS
W/O LATE SRI ASHWATHAPPA
2(b). SMT ANJINAMMA
AGED ABOUT 35 YEARS
D/O LATE SRI ASHWATHAPPA
2(c). MISS PARIMALA
AGED ABOUT 33 YEARS
D/O LATE SRI ASHWATHAPPA
2(d). SMT CHAITRA
AGED ABOUT 30 YEARS
D/O LATE SRI ASHWATHAPPA
2(e). SRI UMESHA
AGED ABOUT 27 YEARS
D/O LATE SRI ASHWATHAPPA
ALL ARE R/AT NO 260,
BEHIND YELLAMMA TEMPLE
KENGERI FORT, BANGALORE - 560060.
3. SRI NARAYANA
AGED ABOUT 63 YEARS
S/O LATE SRI YELLAPPA
R/AT NO 459, BEHIND
YELLAMMA TEMPLE
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WP No. 26512 of 2017
C/W CRP No. 13 of 2023
KENGERI FORT
BANGALORE - 560060.
...RESPONDENTS
(BY SRI.AJAY GOVINDRAJ., ADVOCATE FOR R1;
R2 (A TO E) IS SERVED; R3 SERVED)
THIS WP IS UNDER ARTICLES 226 AND 227 OF
THE CONSTIUTION OF INDIA FILED PRAYING TO
QUASH TEH ORDER DATED 19.4.2017 PASSED ON I.A.7
IN O.S.6871/2012 BY THE 5TH ADDL. CITY CIVIL
JUDGE, BANGALORE AT ANNEX-J AND PASS SUCH
OTHER ORDER / ORDERS AS THIS COURT MAY DEEM
FIT TO PASS IN THE CIRCUMSTANCES OF THE CASE
ALLOWING THE I.A.7 IN O.S.6871/12 INCLUDING
ORDER AS TO THE COST OF THE PROCEEDINGS.
IN CRP NO. 13/2023
BETWEEN:
SRI LAKSHMANA
S/O LATE YELLAPPA
AGED ABOUT 83 YEARS
R/AT NO.1916, KHB,
2ND CROSS
3RD MAIN, KENGERI HOUSING BOARD,
BANGALORE- 560 060.
...PETITIONER
(BY SRI. AJAY GOVINDRAJ., ADVOCATE)
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WP No. 26512 of 2017
C/W CRP No. 13 of 2023
AND:
SRI ASWATHAPPA
S/O LATE YELLAPPA
SINCE DEAD REP BY HIS LRS
1. SMT RATHNAMMA
W/O LATE ASWATHAPPA
AGED ABOUT 65 YEARS
2. SMT ANJINAMMA
D/O LATE ASWATHAPPA
AGED ABOUT 45 YEARS
3. MIS. PARIMALA
D/O LATE ASWATHAPPA
AGED ABOUT 43 YEARS
SMT. CHAITHRA
D/O LATE ASWATHAPPA
DELETED SINCE SHE DIED ON 08.08.2018
4. SRI UMESHA
S/O LATE ASWATHAPPA
AGED ABOUT 37 YEARS
NO.1 TO 4 ARE
R/AT NO.260,
BEHIND YELLAMMA TEMPLE,
KENGERI, KENGERI POST
BANGALORE- 560 060.
5. SRI MUNIYAPPA
S/O LATE YELLAPPA
AGED ABOUT 78 YEARS
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WP No. 26512 of 2017
C/W CRP No. 13 of 2023
R/AT NO. 463,
BEHIND YELLAPPA TEMPLE,
KENGERI, KENGERI POST
BANGALORE- 560 060.
6. SRI NARAYANA
S/O LATE YELLAPPA
AGED ABOUT 68 YEARS
R/AT NO.459,
BEHIND YELLAPPA TEMPLE,
KENGERI, KENGERI POST
BANGALORE- 560 060.
...RESPONDENTS
(BY SMT.HEMALATHA B.V., ADVOCATE FOR;
SRI.B.R. SRINIVASA GOWDA, ADVOCATE FOR R5
AND R6; SRI. MADHU R, ADVOCATE FOR R1 TOR R4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 08.09.2022 PASSED ON IA
IN OS No.6871/2012 ON THE FILE OF THE V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE APPLICATION FILED
UNDER ORDER XXIII RULE 1 R/W SEC.151 OF CPC.
THESE PETITIONS, COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 26512 of 2017
C/W CRP No. 13 of 2023
ORDER
The petition in W.P. No.26512/2017 is filed by the second defendant in O.S. No.6871/2012 on the file of the V Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court']. This writ petition is filed impugning the civil Court's order dated 19.04.2017, and the civil Court by this order has rejected the application filed by the petitioner in the suit in O.S. No.6871/2012 under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short, 'the CPC'].
2. The civil revision petition in CRP No.13/2023 is filed by the plaintiff in O.S. No.6871/2012, and this petition is against the civil Court's order dated 30.03.2022. The civil Court by this order has rejected the petitioner's application under Order XXIII Rule 1[3] read with Section 151 of CPC for leave to withdraw the suit with liberty to initiate appropriate proceedings in accordance with -7- NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 law. The parties, for the reasons of convenience, are referred to as they are arrayed in the suit.
3. The deceased first defendant has filed the earlier suit in O.S. No.6660/1994 on the file of the VII Additional City Civil Judge, Bengaluru for declaration and partition of his one-fifth share in three agricultural lands and two residential properties. This suit in O.S. No.6660/1994 is decided ex parte on 13.08.1997 declaring that the first defendant would be entitled to one-fifth share in each of these properties. The plaintiff [the petitioner in CRP No.13/2023] has commenced the present suit in O.S. No.6871/2012 asserting cause of action in the first week of September 2012 and contending that as the deceased first defendant and the second defendant were insisting upon partition, a panchayat was conducted and in this panchayat for the first time the first defendant mentioned ex parte decree dated 13.08.1997 in O.S. No.6660/1994. -8-
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4. The plaintiff, on the strength of these assertions and relying upon the Last Will and Testament dated 30.08.19941, has sought for declaration that the Judgment and decree dated 13.08.1997 in O.S. No.6660/1994 is null and void as it is vitiated by fraud and without notice to him. The plaintiff has also sought for permanent injunction. This suit includes more than five properties mentioned in the said earlier suit. The second defendant, who has filed the written statement in the month of December 2015 supporting the case of the plaintiff, has filed the subject application for amendment of the written statement to resile and contend that the plaint assertions are wrong and that he does not have any knowledge about the Last Will and Testament dated 30.08.1994.
5. The second defendant, in support of the application, has stated that his learned counsel 1 The said Last Will and Testament is registered on 03.09.1994.
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 earlier on record, Sri. Chandregowda, has filed reply in the disciplinary proceedings initiated against him by the Karnataka State Bar Council categorically stating that he had drafted the written statement on the instructions of the plaintiff. The civil Court has dismissed this application for amendment by its impugned order dated 19.04.2017, and as such, the second defendant has filed his writ petition in W.P. No.26512/2017.
6. Sri. Ajay Govindraj, the learned counsel for the plaintiff, submits that if the plaintiff succeeds in the civil revision petition, the second defendant's writ petition would not survive for consideration. Indeed, this must be so because if the civil revision petition is allowed, the plaintiff will be permitted to withdraw the suit with liberty to initiate appropriate proceedings on the same cause of action. In which event, the second defendant can raise all grounds
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 notwithstanding the written statement that is now filed in the present suit.
7. On the merits of the revision petition, Sri. Ajay Govindraj submits the plaintiff, in the peculiarities of the case, should have invoked the competent Court's jurisdiction under Section 96 of CPC or under Order IX Rule 13 thereof in view of the ground that the plaintiff was not served with the notice and the deceased first defendant has fraudulently obtained ex parte judgment in O.S. No.6660/1994. He also submits that the plaintiff has not sought for vindication of his rights that would emerge in the circumstances relied upon by him in the plaint, including the registered Last Will and Testament dated 30.08.1994 executed by Sri. Yellappa, the father of the parties.
8. Sri. Ajay Govindraj argues that the appropriate recourse for the plaintiff would be to seek necessary orders in permissible proceedings as
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 against the ex parte Judgment and decree obtained fraudulently without notice to him, and the civil Court has rejected the plaintiff's application under Order XXIII Rule 1[3] of CPC on the ground that it cannot be entertained because it is filed ten years into litigation and there would be wastage of time. The pivot for his submission in support of the revision petition is that there is a formal defect in the initiation of the suit, and when formal defect is established, the provisions of Order XXIII Rule 1[3] would be justifiably invoked.
9. On the other hand, Smt. B V Hemalatha, the learned counsel for the second defendant, supports the civil Court rejecting the petitioner's application under Order XXIII Rule 1[3] of CPC emphasizing that the first suit filed in the year 1994 is decreed in the year 1998 and after prosecuting the present suit, which is commenced in the year 2012 for over ten years, the present application is filed and
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 therefore the civil Court has rightly exercised its jurisdiction.
10. The rival submissions are considered, and the questions for consideration are:
[i] Whether there is a formal defect in the suit as contemplated under Order XXIII Rule 1(3) of CPC, and the civil Court has failed to consider the same; and [ii] If there is a formal defect in framing the suit, should the plaintiff's application be rejected because there is lapse of over ten years from the date of the suit.
11. The Hon'ble Supreme Court in K S Bhoopathy and others v. Kokila2, while discussing the legislative policy in including the provisions of Order XXIII Rule 1(3) of CPC, has held that the Courts must, upon consideration of all circumstances, satisfy itself that the suit must fail by 2 [2000] 5 SCC 458
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 reason of a formal defect. The Supreme Court's decision in this regard is as hereunder:
"The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit roust fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action."
The Hon'ble Supreme Court in the subsequent decision in V. Rajendran and Another v. Annaswamy Pandian (dead) through legal
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 representatives, Karthyayani Natchiar3 has also declared that the 'formal defect' as contemplated under the provisions of Order XXXIII Rule 1(3) of the CPC would be a defect of form prescribed by the rule of procedure and this expression must be given a liberal construction which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. This Court must also record that the Hon'ble Supreme Court has opined that wastage of judicial time, though it is in the context of considering an application under Order XXIII Rule 1(3) of CPC at the appellate level, would be a crucial factor.
12. The question of formal defect in the present case is examined in the circumstances peculiar to this case and the circumstances are that the earlier suit in which there is declaration that the parties would be entitled to 1/5th share in the five 3 (2017) 5 SCC 63
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 immovable properties is an ex-parte decision; that there is no follow up on this ex-parte decision until the present suit is filed by the plaintiff; that the plaintiff is not seeking vindication of his interest in the suit schedule properties of the Last Will and Testament dated 30.08.1994 executed by his father, Sri. Yellappa.
13. Another crucial aspect, apart from the above, would be the limited consideration in the suit as now framed. The question would be whether the judgment and decree in O.S. No.6660/1994 should be recalled on the ground that the plaintiff was not duly served with the notice of this suit, and this question could be summarily examined under Order IX of CPC, and even under Section 96 of CPC, paving way for consideration that would encompass the core of the dispute, especially with the second defendant changing stand and the plaintiff claiming rights under the Last Will and Testament dated 30.08.1994.
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14. This Court, in the aforesaid circumstances, must opine that it is reasonable to conclude that the suit suffers from a formal defect though there could be some fortuitous advantages with the change in the burden of establishing the relevant facts in the proceedings initiated afresh. This Court must next consider whether, despite noticing formal defect as aforesaid, could uphold the rejection of the application for leave to initiate fresh proceedings.
15. The question of delay - a crucial factor even for the purposes of testing the merits of an application under Order XXIII Rule 1(3) of CPC - must be considered, in the circumstances mentioned above with emphasis on the fact that the second defendant, who had initially filed the written statement supporting the plaintiff now proposes to resile making allegation against the previous counsel on record as also the plaintiff adding a new
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 dimension to the entire controversy. The second defendant has filed this application for amendment in the year 2017. The delay is one of the considerations, but the delay in the present case cannot be attributed to the plaintiff alone. As such, the application cannot be rejected on such ground. In view of the above, this Court must opine that the civil Court has overlooked material circumstances in exercise of its jurisdiction that could enable a effective decision for complete adjudication of the dispute. Hence the following:
ORDER [a] The civil revision petition in CRP No.13/2023 is allowed, quashing the order dated 30.03.2022 on the file of the V Additional City Civil and Sessions Judge, Bengaluru and allowing the plaintiff's application under Order XXIII Rule 1[3] of CPC with liberty to initiate such proceedings as would be permissible
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NC: 2023:KHC:28730 WP No. 26512 of 2017 C/W CRP No. 13 of 2023 in law for the cause of action that is pleaded.
[b] The writ petition in W.P.
No.26512/2017 is disposed of
consequentially reserving liberty in this petitioner [the second defendant] to take all such defenses as would be permissible in law in the event the plaintiff-petitioner should initiate proceedings in terms of the liberty granted herein.
Sd/-
JUDGE AN/-