IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.910-912 OF 2017 (GM-CPC) BETWEEN:
1 . SMT. JAYAMMA W/O. LATE SRI. MALAYAIAH, AGED ABOUT 43 YEARS, 2 . SRI. M. SUNIL S/O. LATE SRI. MALAYAIAH, AGED ABOUT 25 YEARS, 3 . M. SACHIN S/O. LATE SRI. MALAYAIAH, AGED ABOUT 22 YEARS, ALL THE PETITIONERS ARE R/AT NO.26, PRITHVI NILAYA, VIVEKANANDA BLOCK, DR. RADHAKRISHNA NAGAR, MYSURU-570 029.
... PETITIONERS (BY SRI. P.K.SHRIKARA, ADVOCATE FOR SRI. GEORGE JOSEPH, ADVOCATE) AND:
1 . SMT. M. DEEPASHREE D/O. LATE SRI. MALAYAIAH, AGED ABOUT 30 YEARS, R/AT KUSHALNAGAR, KODAGU DISTRICT-571 234.
2 . SMT. G.S. VASANTHALAKSHMI W/O. LATE SRI. MALAYAIAH, AGED ABOUT 52 YEARS, R/AT NO.1972/2, 4TH CROSS, SUBHASHNAGAR, MANDYA TOWN-571 401.
3 . ACCOUNTANT GENERAL GOVERNMENT OF KARNATAKA, M.S. BUILDINGS, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
4 . THE PRINCIPAL GOVERNMENT FIRST GRADE COLLEGE, GUNDLUPETE TOWN571 111 CHAMARAJANAGAR DISTRICT.
5 . THE COMMISSIONER DEPARTMENT OF COLLEGIATE, EDUCATION, BENGALURU-560 001.
6 . THE MANAGER K.G.I.D., MYSURU-570 001.
... RESPONDENTS (BY SRI. D.S.HIREMATH, ADVOCATE FOR R-1 & R-2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS IN P & SC.NO.3/2014 ON THE FILE OF THE HON’BLE ADDITIONAL CIVIL JUDGE AND JURICIAL MAGISTRARE, AT MANDYA AND M.A.NO.10/2015 ON THE FILE OF THE HON’BLE II ADDL. SENIOR CIVIL JUDGE AND JURICIAL MAGISTRATE FIRST CLASS, AT MANDYA; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the claimants in P & SC N0. 3/2014 filed under Section 372 of the Indian Succession Act, 1925, are invoking the writ jurisdiction of this Court for assailing the orders of injunction dated 25.03.2015, granted by the trial Judge and the order dated 10.08.2016 affirmed by the Appellate Judge in M.A.No.10/2015, copies whereof are respectively at Annexures A & B.
2. After service of notice the respondents having entered appearance through their counsel, resist the writ petitions.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that no injunctive relief could have been granted in a petition of this kind at all; although, arguably such a relief might be granted if the petition was filed under Section 295 of the Act seeking probate of a Will if and when the same was contested, as rightly contended by the learned counsel for the petitioners.
4. There is force in the other contention of the learned counsel for the petitioners that the subject P&SC is not a suit proceeding between the parties but was only a petition for the grant of Succession Certificate; even prayer in the said petition does not answer the requirement of Chapter 13 of the Act; however, it is a matter for consideration by the Court below after a deeper examination.
5. In any event, the injunctive relief could not have been granted as already mentioned above. This aspect of the matter having lost sight of, by both the Courts below, notwithstanding the absence of arguments to that effect at the Bar, there is an error apparent on the face of the record warranting indulgence of Writ Court for setting the wrong at right.
In the above circumstances, these writ petitions succeed; the impugned orders are quashed.
However, keeping in view the facts & circumstances of the case, opportunity needs to be extended for availing alternate remedy, the undertaking furnished by the petitioners that they would not withdraw the amount arising by way of terminal benefits of the deceased for a period of eight weeks is placed on record.
It is open to petitioners to seek appropriate remedy in appropriate proceedings within the said period, in accordance with law.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE DS