IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11638 OF 2017 C/w WRIT PETITION NO.6729 OF 2016 (GM-CPC) IN W.P.NO.11638/2017 BETWEEN:
1. SHRI C. MUNIYAPPA S/O LATE CHINNAPPA, AGED ABOUT 56 YEARS, R/AT NO.130/3, NAVODAYANAGAR, KOTHANUR DINNE, J.P.NAGAR, 7TH PHASE, BENGALURU-560 078.
2. SMT. PRAMILA VENKATESH W/O LATE C. VENKATESH, AGED ABOUT 45 YEARS, 3. SHRI SANJAY KUMAR S/O LATE C. VENKATESH, AGED ABOUT 26 YEARS, 4. SMT. SHILPA D/O LATE C. VENKATESH, AGED ABOUT 25 YEARS, SL. NOS.2 TO 4 ARE R/AT NO.14, 6TH C MAIN, 3RD A CROSS, GOWRAVNAGAR, J.P.NAGAR, 7TH PHASE, BENGALURU-560 078.
5. SHRI C. PRAKASH S/O LATE CHINNAPPA, AGED ABOUT 46 YEARS, R/AT 6TH C, BANASHANKARI NILAYA, CHINNAPPA GARDEN, J.P.NAGAR, 8TH PHASE, BENGALURU-560 078. … PETITIONERS (BY SRI PRAKASH. T. HEBBAR, ADVOCATE) AND:
1. SHRI N. JANARDHANA S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 36 YEARS, 2. SHRI N. VENUGOPAL S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 34 YEARS, 3. SHRI N. HARISH S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 33 YEARS, 4. SHRI C.M.NAGARAJA HUSBAND OF LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 61 YEARS, SL. NO.1 TO 4 ARE R/AT: NO.329, C/O SIDDESHWARA STORES, NEAR MARUTHI SCHOOL, SRINIDHI LAYOUT, KOTHANUR MAIN ROAD, BENGALURU-560 062.
5. SHRI V. PRANAV S/O SHRI V. CHANDRAHASA REDDY, AGED ABOUT 37 YEARS, R/AT NO.395, BANASHANKARI NILAYA, CHINNAPPA GARDEN, J.P.NAGAR, 8TH PHASE, BENGALURU-560 078.
6. SHRI SIDDAREDDY S/O LATE A. ANKAREDDY, AGED ABOUT 59 YEARS, C/O B. HEMASUNDAR REDDY, R/AT NO.26, 2ND CROSS, 3RD MAIN, VIVEKANANDA COLONY, SARAKKI, BENGALURU-560 078.
7. SHRI SRINIVAS S/O LATE VENKATARAMANA, MAJOR, R/AT FLAT NO.103, PANKAJ RESIDENCY, AREKERE, BANNERGHATTA ROAD, BENGALURU-560 076. … RESPONDENTS (BY SRI SRIHARI A.V., ADVOCATE FOR R1 TO R4; SRI UMESH B.N., ADVOCATE FOR R-5;
NOTICE TO R6 TO R7 ARE D/W V/O DTD.05.07.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ADMIT THIS PETITION, CALL FOR THE ENTIRE RECORDS FROM THE FILE OF THE HON’BLE XXXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, ON I.A.NO.IX IN O.S.NO.5679/2007 PERUSE THE SAME, HER THE PARTIES AND BE PLEASED TO SET ASIDE THE IMPUGNED ORDER DTD:20.1.2017 AS PER ANNEXURE-A PASSED BY THE HON’BLE TRIAL COURT DISMISSING I.A.NO.IX FILED BY THE PETITIONERS UNDER SECTION 151 OF CPC AND CONSEQUENTLY TO ALLOW I.A.NO.IX AS PRAYED FOR AND ETC.
IN W.P.NO.6729/2016 BETWEEN:
1. SHRI C. MUNIYAPPA S/O LATE CHINNAPPA, AGED ABOUT 56 YEARS, R/AT NO.130/3, NAVODAYANAGAR, KOTHANUR DINNE, J.P.NAGAR, 7TH PHASE, BENGALURU-560 078.
3. SMT. PRAMILA VENKATESH W/O LATE C. VENKATESH, AGED ABOUT 45 YEARS, 3. SHRI SANJAY KUMAR S/O LATE C. VENKATESH, AGED ABOUT 26 YEARS, 4. SHILPA D/O LATE C. VENKATESH, AGED ABOUT 25 YEARS, SL. NOS.2 TO 4 ARE R/AT NO.14, 6TH C MAIN, 3RD A CROSS, GOWRAVNAGAR, J.P.NAGAR, 7TH PHASE, BENGALURU-560 078.
5. SHRI C. PRAKASH S/O LATE CHINNAPPA, AGED ABOUT 46 YEARS, R/AT 6TH C, BANASHANKARI NILAYA, CHINNAPPA GARDEN, J.P.NAGAR, 8TH PHASE, BENGALURU-560 078. … PETITIONERS (BY SRI PRAKASH. T. HEBBAR, ADVOCATE) AND:
1. SHRI N. JANARDHANA S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 36 YEARS, 2. SHRI N. VENUGOPAL S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 34 YEARS, 3. SHRI N. HARISH S/O LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 33 YEARS, 4. SHRI C.M.NAGARAJA HUSBAND OF LATE NARAYANAMMA @ AMMAYYAMMA, AGED ABOUT 61 YEARS, ALL ARE R/AT: NO.329, C/O SIDDESHWARA STORES, NEAR MARUTHI SCHOOL, SRINIDHI LAYOUT, KOTHANUR MAIN ROAD, BENGALURU-560 062.
5. SHRI V. PRANAV S/O SHRI V. CHANDRAHASA REDDY, AGED ABOUT 37 YEARS, R/AT NO.395, BANASHANKARI NILAYA, CHINNAPPA GARDEN, J.P.NAGAR, 8TH PHASE, BENGALURU-560 078.
6. SHRI SIDDAREDDY S/O LATE A. ANKAREDDY, AGED ABOUT 59 YEARS, C/O B. HEMASUNDAR REDDY, R/AT NO.26, 2ND CROSS, 3RD MAIN, VIVEKANANDA COLONY, SARAKKI, BENGALURU-560 078.
7. SHRI SRINIVAS S/O LATE VENKATARAMANA, MAJOR, R/AT FLAT NO.103, PANKAJ RESIDENCY, AREKERE, BANNERGHATTA ROAD, BENGALURU-560 076. … RESPONDENTS (BY SRI SRIHARI A.V., ADVOCATE FOR R1 TO R4; SRI V. SHIVAREDDY, ADVOCATE FOR R-5;
NOTICE TO R6 & R7 ARE D/W V/O DTD.12.04.2016) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE FILE OF THE HON’BLE XXXIX ADDITIONAL CITY CIVIL JUDGE BENGALURU CITY IN O.S.NO.5679/2007 PERUSE THE SAME HEAR THE PARTIES AND SET ASIDE THE IMPUGNED ORDER DTD:27.01.2016 AS PER ANNEXURE-A PASSED ON IA NO.VIII IN O.S.NO.5679/2007 AND BE PLEASED TO ALLOW I.A.NO.VIII AND ETC.
THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER In W.P.No.11638/2017 The petitioners being the defendants in a partition suit in O.S.No.5679/2007 are invoking the writ jurisdiction of this Court for assailing the order dated 20.01.2017, a copy whereof is at Annexure-A whereby the learned LXVI Additional City Civil Judge, Bengaluru having rejected their application in I.A.No.IX filed under Section 151 of CPC has refused to modified the order of temporary injunction dated 26.07.2007 to the effect that the same should be confined to ¼th share of the plaintiff side.
2. After service of notice, the contesting respondents having entered appearance through their counsel resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter because the court below having rightly considered all the contentions of the parties, has made the impugned order which is just and reasonable. The modification which the petitioners sought for even otherwise cannot be granted when partition suit is still pending and the shares of the parties are yet to be determined; in a joint Hindu family, every coparcener is the owner of the entire property along with other co-owners, till after joint status is disrupted.
5. The other reasons for not granting indulgence in the matter is that the impugned order apparently is a product of exercise of discretion according to sound rules of justice and reasons by the court below; no error of great magnitude either of law or of facts has been substantiated from the records. The Hon’ble Apex Court in the case of SADHANA LODH vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS, 2003 (3) SCC 524 at Para No.7 has observed as under;
“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.”
The above observations squarely applies to the present case, nothing contra having been shown.
In the above circumstances, this writ petition being devoid of merits, is dismissed.
No costs.
IN W.P.NO.6729/2016 The petitioners being the defendants in partition suit in O.S.No.5679/2007 are invoking the writ jurisdiction of this Court for assailing the order dated 27.01.2016, a copy whereof is at Annexure-A whereby their application in I.A.No.VIII filed under Order VII Rule 11(d) read with Section 151 of CPC for rejection of the plaint has been dismissed by the learned XXXIX Additional City Civil Judge, Bengaluru City.
2. After service of notice, the contesting respondent have entered appearance through their counsel and resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter inasmuch as prima-facie the suit involves a triable case; the assertion of the petitioner- defendants are contradicted by the plaintiffs side. In the absence of trial, these assertion and denial cannot be decided only on the basis of the affidavits of the parties; the question whether the respondent/plaintiffs are Class I or Class II legal heirs is a matter to be decided after trial. The Full Bench of this Court in the case of VENKATESH R.DESAI vs. SMT.PUSHPA HOSAMANI & OTHERS, ILR 2018 KAR 5095 at para 35 has observed as under:
“35. Accordingly, and in view of the above, we are clearly of the view that by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 r/w Order XIV Rule 2 of the Code of Civil Procedure, 1908, when an issue of valuation and/or court fees is raised in a civil suit on the objection of the defendant, the same is not invariably required to be tried as a preliminary issue and before taking evidence on other issues; but could be tried as a preliminary issue if it relates to the jurisdiction and the Trial Court is of the view that the suit or any part thereof could be disposed of on its determination. The reference stands answered accordingly”.
In the above circumstances, this Writ Petition being devoid of merits, is dismissed.
No costs.
Sd/- JUDGE HA/-