IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.49100/2016 [GM-CPC] CONNECTED WITH WRIT PETITION NO.49101/2016 [GM-CPC] BETWEEN:
SHRI. CHINNAPPA, S/O. EARAPPA, AGED ABOUT 80 YEARS, R/A. VANARASI VILLAGE, HOLUR HOBLI, KOLAR TALUK-563 101.
KOLAR DISTRICT. … PETITIONER [COMMON IN BOTH THE CASES] [BY SRI. T.M. VENKATAREDDY, ADVOCATE] AND:
SHRI. NAGESH, S/O. LATE MUNIVENKATAPPA, AGED ABOUT 40 YEARS, R/A. SUGUTUR VILLAGE, JANGAMAKOTE HOBLI, SIDDALAGATTA TALUK-562 105, CHIKKABALLAPURA DIST. … RESPONDENT [COMMON IN BOTH THE CASES] [NOTICE TO RESPONDENT IS HELD SUFFICIENT VIDE COURT ORDER DATED 30.10.2017] * * * THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 31.05.2016 ON I.A.8 AND I.A.9 IN O.S.771/2010, PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, KOLAR AT ANNEX-O AND ANNEX-P AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 6 RULE 17 R/W SEC. 151 OF CPC BY THE TRIAL COURT.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER 1. Both the petitions are taken-up for consideration and for final disposal by common order as the orders impugned are interconnected and the factual matrix is the same.
2. The petitioner, who is the plaintiff in O.S. No.771/2010 before the trial Court has challenged the impugned orders passed by the trial Court on the application filed under Order 6 Rule 17 of CPC r/w. Section 151 of CPC as well as the application filed under Section 152 of CPC.
3. It is the submission of the learned counsel for the petitioner that compromise was entered into between the parties and the suit was disposed off in the light of the said compromise. Copy of the compromise petition filed under Order 23 Rule 3 r/w. Section 151 of CPC is produced as Annexure-‘C1’. It is submitted that by over-sight the property which is the subject matter of the dispute was referred to as Sy. No.112 measuring 2 acres 20 guntas situated at Vanarasi village, Holur Hobli, Kolar Taluk, though the said property is actually Sy. No.112/P4. The Trial Court however dismissed I.A. Nos.8 and 9 while observing that the plaintiff had not produced any document to show that the suit schedule property was in fact Sy. No.112/P4.
4. The learned counsel for the petitioner filed I.A. No.1/2018 for production of additional documents and has produced copies of mutation as well as record of rights and contends that the suit schedule property bears the description of Sy. No.112/P4. It is however noticed that the additional documents at Annexures-‘P’ and ‘Q’ are subsequent to the impugned orders. It could be appropriate in the light of the observation made by the trial Court that the trial Court be directed to re-look into the matter. Accordingly after taking note of the documents now sought to be produced as Annexures-‘P’ and ‘Q’ and after satisfying with the identity of the property, the trial Court to re-consider the applications filed by the petitioner. Taking note that the description of the property found to be incorrect in the pleadings, the Court could consider the application filed under Section 152 of CPC and the aspect relating to the description of the property in the compromise petition after disposal of the application filed under Order 6 Rule 17 r/w. Section 151 of CPC. However, the application filed under Order 6 Rule 17 of CPC filed by the plaintiff is to be re-considered in the light of the additional material placed before this Court. Such re-consideration is to be completed expeditiously within a period not later than one month on completion of service.
Accordingly, the impugned Orders are set aside and the matters are remanded for fresh consideration to the trial Court subject to the above observations.
Sd/- JUDGE Ksm*