IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.35857 OF 2018 (GM CPC) BETWEEN:
1. Smt. Jalaja K Devadiga, W/o N.Keshava Devadiga, Aged about 60 years, 2. Mr. N. Keshava Devadiga, S/o late Dasappa Devadiga, Aged about 67 years, (Both the petitioners are Residents of No.660, BEML Layout, 3rd Stage, 4th Main, 3rd Cross, Rajarajeshwari Nagar, Bangalore-98) (By Sri.A.G.Gururaj, Advocate for … Petitioners Sri.Parameshwar N Hegde, Advocate) AND:
1. Srinivasa P.Devadiga, S/o Mulki Ishwara Moily @ Ishwara Devadiga, Aged about 63 years, “Srijaya”, House No.1-4-134 H1, KHB Coloney, Doddanagudde, Udupi-576 102.
2. Karthik Keshava, S/o Keshava Devadiga, Aged about 33 years, Resident of No.660, BEML layout, 3rd Stage, 4th Main, 3rd Cross, Rajarajeshwari Nagar, Bangalore-98.
(By Sri.Prasanna V.R, Advocate) … Respondents This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 27.06.2018 passed by the learned Principal Senior Civil Judge, Udupi on IA.No.II in OS.No.53/2015 as per Annexure-A and etc.
This Petition coming on for Preliminary hearing this day, the Court made the following:-
ORDER The petition is admitted for hearing. With the consent of both the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of order dated 27.06.2018 passed by the trial Court.
3. In order to appreciate the petitioners’ challenge to the impugned order, few facts need mention, which are stated infra:
Respondent No.1 has filed a suit seeking relief of partition in the year 2015 in respect of properties mentioned in Schedules A, B and C appended to the plaint. It is stated in the plaint that defendant No.1 and late Jaya P. Moily are brother and sister and late Jaya P. Moily, who was working in USA died intestate on 08.11.2013. Since the deceased expired as a bachelor, therefore, the plaintiff and the 1st defendant are the legal representatives to late Jaya P. Moily. It is also pleaded that the plaintiff and defendant No.1 has share in respect of the properties left by deceased Jaya P. Moily. However, on the basis of the nomination obtained by the defendants, the defendants are claiming exclusive title in respect of the suit schedule properties and the benefit on the basis of nomination as well as Will executed in their favour in respect of the suit properties. Accordingly, the suit seeking relief of partition was filed.
4. Defendants filed written statement on 03.12.2015. At the stage of cross-examination of PW-1, respondent No.1 filed an application under Section 94(e), 151 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) seeking for a direction to the defendants to deposit half portion of the amount received by them from the suit properties mentioned in schedule B and C to the plaint along with interest accrued thereon, which was received by them as nominees of deceased Jaya P. Moily. The petitioners filed their objections to the aforesaid I.A. on 09.10.2017. The trial Court, after hearing the parties, by impugned order dated 27.06.2018, has allowed the application and has directed the petitioners to deposit half portion of the amount along with interest accrued thereon, which was already received as nominees of deceased Jaya P. Moily.
5. Learned counsel for the petitioners submitted that the impugned order is cryptic and suffers from the vice of non-application of mind as no reasons have been assigned by the trial Court for allowing the application. It is further submitted that the trial Court has recorded factually incorrect aspect that the written statement is yet to be filed whereas, the application under Section 151 of the Code was filed by respondent No.1 at the stage of cross-examination of plaintiff witness No.1.
6. On the other hand, learned counsel for respondent No.1 has submitted that the impugned order has been passed with a view to ensure the interest of the plaintiff in the suit. Since the petitioners have already received the amount in question as nominee of the deceased Jaya P. Moily siphoning the funds, the petitioner had filed an application, which has rightly been allowed by the trial Court.
7. I have considered the submissions made by learned counsel for the parties. Admittedly, the petitioners as nominees of deceased Jaya P. Moily have received the amount of Rs.7,18,06,059/- along with interest accrued thereon. Respondent No.1 and the petitioners are claiming title in respect of the properties mentioned in schedules A, B and C in the plaint. It is the averment of the respondent No.1 in the application that the petitioners herein are trying to siphon all the funds, the trial Court has therefore, passed an order to secure the interest of respondent No.1 in the event of their success in the civil suit. The impugned order neither suffers from jurisdictional infirmity nor error apparent on the face of the record warranting interference by this Court under Article 227 of the Constitution of India.
8. 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 order 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]. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
9. In view of the aforesaid analysis, I do not find any merit in the writ petition. Further, taking note of the fact that the suit is at the stage of recording the evidence of plaintiff, the trial Court shall make an endeavor to dispose of the suit preferably within a period of one year from today.
Accordingly, the petition is disposed of.
Sd/- JUDGE dn/-