IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.44480 OF 2014 (GM-CPC) BETWEEN:
B.R. SOMASHEKAR S/O T. RAJANNA AGED ABOUT 34 YEARS VINSCO BUILDTECH PVT. LTD., BUILDERS & DEVELOPERS NO.81, PRAKASHNAGAR 2ND FLOOR, 1ST MAIN ROAD TEMPLE STREET, MALLESHWARAM BANGALORE-560003.
(By Mr. SHANTESH AVAJI, ADV.) AND:
1. NARASA REDDY S/O KEMPANNA AGED ABOUT 50 YEARS.
2. NARAYANASWAMY S/O ANANTHARAMASWAMY AGED ABOUT 55 YEARS.
3. MUNIVENKATARAYAPPA S/O MUTHYALAPPA AGED ABOUT 60 YEARS.
4. KRISHNAPPA S/O KEMPANNA AGED ABOUT 35 YEARS.
5. NARASA REDDY S/O THIPPANNA AGED ABOUT 35 YEARS.
… PETITIONER 6. VENKATESHAPPA S/O BALLALAPPA AGED ABOUT 70 YEARS.
ALL ARE RESIDENTS OF INAMECHENAHALLI VILLAGE KASABA HOBLI CHICKBALLAPUR TALUK & DISTRICT-562101.
(By Mr. CHANDAN B.K. ADV., FOR Mr. SUNIL & Mr. NITHIN ADVS.,) - - -
… RESPONDENTS This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to call for the records in O.S.No.176/2014 pending on the file of II Addl. Civil Judge (Jr.Dn.) & JMFC, Chickballapur and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Heard Sri.Shantesh Avaji, learned counsel for the petitioner on the question of admission.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 12.08.2014 passed by the Trial Court, by which the Trial Court has permitted the respondents to file the suit in a representative capacity and has allowed the application filed by the petitioner under Order I Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short).
3. Facts giving rise to filing of the writ petition briefly stated are that on 10.03.2014 respondents filed a suit seeking relief of declaration that the suit property belongs to public in general along with an application under Order I Rule 8 of the Code seeking permission to institute the suit in a representative capacity. The petitioner who was arrayed as defendant in the suit, filed the written statement. The Trial Court, by an order dated 12.08.2014, inter alia held that from the documents adduced by the respondent prima facie it appears that the property in question is used for public purposes. Accordingly, the application was allowed.
4. Learned counsel for the petitioner submitted that the Trial Court erred in allowing the aforesaid application under Order I Rule 8 of the Code as while dealing with the application under Order XXXIX Rule 1 and 2 of the Code, the Trial Court itself had held that the respondents have failed to prove any prima facie case in their favour and the said application was rejected. It is further submitted that while dealing with the application under Order XXXIX Rule 1 and 2, the Trial Court had recorded a finding that there was no material on record to show that the property in question was being used for public purposes. On the other hand, learned counsel for the respondents has supported the order passed by the Trial Court.
5. I have considered the submissions made by the learned counsel for the parties and have perused the record. The Trial Court, while dealing with the issue of prima facie case while deciding the application under Order XXXIX Rule 1 and 2 had recorded a finding that the plaintiff prima facie failed to prove that the property in question was being used for public purposes. It appears that the aforesaid application was filed under Section 94 read with Section 151 of the Code as by that time, the civil suit itself was not registered. Thereafter it appears that the respondents had filed the documents to show that the property in question is being used for public purposes. The Trial Court, by taking into account the aforesaid documents, by impugned order dated 12.08.2014, has granted permission to the respondents to file the suit in a representative capacity. The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS.
RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. Needless to state that it will be open to the petitioner to raise all such contention as may be permissible to him in law that the property in question belongs to the petitioner. The Trial Court shall adjudicate the same on merits.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV