IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N K SUDINDRARAO REGULAR FIRST APPEAL NO. 252/2006 BETWEEN:
SMT. BHAGYAMMA, W/O GOVINDA RAJU AGED 46, RESIDING AT #1005, YADHAVA NILAYA, 2ND CROSS, DIVANARAPALYA, BANGALORE-54. ... APPELLANT (BY SRI S N ASWATHANARAYANA ADV.,) AND:
1. SMT B KRISHINAMMA W/O A NARYAN, AGED 33 YEARS, RESIDENT AT # 430, 13TH CROSS, 8TH MAIN, SADHIVANAGAR, BANGALORE-80.
2. SMT JAYAMMA W/O LATE JAIRAM AGED 52.
3. SRI MUNIRAJU, W/O LATE JAIRAM AGED 29 4. SRI SRIRAM S/O NARSHIMHIA, AGED 52 THE RESPONDENT 2 TO 4 ARE RESIDING AT # 1005, YADHAVA NILAYA, 2ND CROSS, DIVANARAPALYA, BANGALORE-54. ... RESPONDENTS (BY SRI N. HARIPRASAD, ADV., FOR MATHRU ASSOCIATES FOR R-1, NOTICE TO R-2 TO 4 DISPENSED WITH V/O DATED 15.11.2006.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 11.3.2005 PASSED IN O.S.NO.8825/99 ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the defendant No.3/appellant is directed against the judgment and decree passed in O.S. No.8825/1999 on the file of the XIX Addl. City Civil and Sessions Judge, Bangalore City dated 11.3.2005 wherein the suit for permanent injunction came to be decreed thereby ordering the defendants to restrain from interfering with the plaintiff’s collecting rents from the tenants of the schedule property.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their status and rank as stood before the trial court.
3. The plaintiff is Smt. B.Krishnamma W/o A Narayan. The defendants are four in number namely, Smt. Jayamma, Sri Muniraju, Sri Sriram and Smt Bhagyamma.
4. The plaintiff claims to be the daughter of one Balappa and Muniyamma. Govindaraju and Jayaram are her siblings. They predeceased their mother Muniyamma. The first defendant – Smt. Jayamma is the widow of Jayaram. The second defendant – Muniraju is the son of said Jayamma & Jayaram. The third defendant – Bhagyamma is the wife of one Govindaraju and fourth defendant – Srirama is the son of one late Narasimhaiah who is cousin brother of younger brother of the plaintiff’s father – Balappa. The plaintiff claims that she is taking care of her mother and she executed a registered will dated 4.9.1996 bequeathing her undivided share in the schedule property. The portions of the schedule property are let out and are in occupation of the tenants. The defendants have started giving pinpricks to the plaintiff and is demanding the lands from the tenants. In this connection, in the light of creating conflict, the matter is going to disadvantage of the plaintiff as the tenants are pleaded to give land to the plaintiff in the light of demanding the same.
5. In nutshell the defendants 2, 3 and 4 have filed joint written statement. As it was delayed the application marking as I.A.No.5 for condonation of delay in filing the written statement is also filed. The learned trial Judge rejected the said application on 23.07.2003. Thus, the written statement was not considered. Incidentally, another application marked as I.A.No.6 came to be filed under order 47 Rule 1 of CPC, for recalling the order of rejection of I.A.No.5 dated: 23.07.2003, ultimately the said application came to be rejected on 5.11.2002. The total consequence is that the written statement filed by defendants 2 to 4 was not on record and the matter came to be adjudicated without the written statement.
6. The trial Judge framed two points for consideration in place of issue and considering the oral and documentary evidence, decreed the suit of the plaintiff. Against which, 3rd defendant/appellant has filed this appeal.
7. The appellant – Bhagyamma in this case is none other than defendant No.3 in the trial court. At the same time the respondents are Smt B. Krishnamma, Jayamma, Muniraju and Sriram and they are plaintiff and defendants 1, 2 & 4 respectively. The defendants 1, 2 and 4 are the respondents for the reasons perhaps they might not have accompanied the applicant. The suit as it was based the claim of the plaintiff on the ground that she has duty to look after the property and that rents were refused because of the rival claim, she filed the suit and the defendant's though have pleaded their rights over the schedule property being joint family property belonging to the plaintiff and the defendants being either L.Rs of Balappa or the members of the family or legal heirs claiming under the said person. In over all circumstances of the case, the defendants in their written statement have pleaded the existence of Original Suit in O.S.No.5750/98 for partition pending on the file of the XXXV Addl. City Civil and Sessions Judge, Bengaluru. It is also pleaded that the schedule property in the present suit is also the subject matter of the said suit for partition. The learned Trial Judge at the first instance rejected the application filed by the defendants to permit them to file written statement by condoning the delay and the same was rejected as stated above. The next application filed under 47 Rule 1 of CPC for review / recalling the order dated 23.07.2003, also came to be rejected. Thus, the adjudication of the original suit came to be done along with the written statement of the plaintiff.
8. The learned counsel for the appellant – Sri S.N. Aswathnarayna would submit that when a full pledged suit seeking partition of the joint family properties is pending in O.S.No.5750/98 on the file of the XXXV Addl. City Civil and Sessions Judge, Bangalore, the trial court could have exercised wisdom to avoid conflict between two suits wherein the suit for partition would have decided the complete right of the plaintiff and the defendant's herein. He would further submit that when the entire property is not in joint possession and enjoyment of the parties they invariably include the plaintiff and defendants. The claim for injunction by one member of the family or coparcener against others is not maintainable nor justifiable.
9. Thus the claim of the defendant No.3 – appellant is to prevent, deprival of natural justice and appreciation of pre-exiting rights, the judgment and decree is liable to be set aside.
10. The learned counsel for the respondent No.3 – Sri N. Hari Prasad would submit that the defendant No.3 being appellant in this case, is went up driving beyond proceedings and depriving the plaintiff in collecting the rents of the property and determined to misuse the rents against the legitimate rights of the plaintiff.
11. Basically the matter assumes importance in the light of the pending of the suit for partition. I do not have any hesitation in appreciating the legal aspect of the nature of partition suit over-riding the effect of the suit for injunction.
12. The said principle could have been considered by the learned Trial Judge. More particularly when the same was brought to the notice of the learned Judge, where the suit or claim or affidavit or otherwise is pending , the ideal step would have been to proceed for disposal of the both the suits together and on the other hand the disposal of the injunction suit during pendency of the partition suit, is neither proper or regular nor the Trial Judge could justify the same.
13. Further no doubt the parties cannot be allowed to protract the proceedings and delay the outcome of the suit whatever may be the reasons. In the circumstances, as the written statement was not filed in time, the application was filed in I.A.5 for condonation of delay and receiving written statement came to be rejected. Again another application was filed under Order 47 Rule 1 R/w section 151 CPC, for recalling the previous order of rejection. Even that also came to be rejected. In the circumstances, no doubt initially, the opportunity was given to the party, but it loses its significance when once the prayer for opportunity of hearing, is rejected.
14. This is not a case which warrants the matter is to be adjudicated on default. Endeavour should have been made for disposal of the matter on merits. However, opportunity may be given to the defendants to place their claim.
15. In my considered view, I find that the judgment and decree passed by the learned Trial Judge, is incomplete in the light of the fact that the written statement is not considered and the suit came to be disposed of in the light of the presence of the suit for partition in O.S.No.5750/98. In view of the same, the suit for permanent injunction and partition would have to be adjudicated in common judgment.
16. Therefore, the impugned judgment and decree is liable to be set aside and opportunity is to be given to the defendants to file their written statement and matter requires to be remanded to the trial Judge with a direction to dispose of the original suit after receiving the Original suit stated to be on record and opportunity to be given to the plaintiff to file rejoinder, if any, and to club the present suit and the partition suit in O.S.No.5750/98 and dispose of the same by common judgment.
17. In the result, I proceed to pass the following:
ORDER (i) Appeal is allowed.
(ii) The impugned judgment and decree is hereby set aside and the matter is remanded to the trial court to try the present suit along with OS No.8825/99 pending on the file of the 35th Addl. City Civil and Sessions Judge, Bangalore.
(iii) The parties are entitled for an opportunity filing pleadings to lead their evidence and examine the witnesses. In order to save wastage of judicial time, the matter need not to be notified to the parties. The plaintiff and defendants who are the respondents and appellant are directed to appear before the trial court on 16.12.2019 without waiting for further process or notice from the court below.
(iv) The Principal City Civil and Sessions Judge is informed to ensure that O.S. No.5750/98 is transferred to the trial court to facilitate common disposal along with O.S No.8825/99.
(v) In the light of the fact that the suit being more than 20 years old, it shall be endeavored to dispose of the matter as expeditiously as possible however, not later than 15.2.2020.
There is no costs.
Sd/- JUDGE NM