IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.Nos.35386/2017 & 35997/2017(GM-CPC) BETWEEN :
Mr. MALETIRA P. CHINNAPPA AGED ABOUT 76 YEARS R/AT 1419, 8TH MAIN, JUDICIAL LAYOUT, BELLARY ROAD, GKVK POST, BENGALURU-560065 ...PETITIONER (BY SRI DYAN CHINNAPPA, SENIOR ADV. FOR SRI CHINTAN CHINNAPPA, ADV.) AND :
1. Mr. CHENDANDA B. NANAIAH S/O BIDAPPA, AGED MAJOR, R/AT CHEMBEBELLUR VILLAGE & POST, VIRAJPET TALUK-571218.
2. Mr. SANNUVANDA M. APPACHU S/O MADAPPA, AGE MAJOR, R/AT MYTHADI VILLAGE & POST, VIRAJPET TALUK-571218. …RESPONDENTS (BY SRI RAMESH CHANDRA, ADV. FOR R-1; SMT.P.ANU CHENGAPPA, ADV. FOR R-2.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08.07.2017 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC COURT, VIRAJPET, IN O.S.NO.12/2014 RETURNING THE PLAINT FILED BY THE PETITIONER VIDE ANNEX-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the order dated 8.7.2017 passed in O.S.No.12/2014 on the file of the Senior Civil Judge & JMFC Court, Virajpet, whereby I.A.No.7 filed by the defendant No.1 is decided to be considered first inasmuch as the jurisdiction of the Court to try the suit.
2. O.S.No.12/2014 was filed by the plaintiff/petitioner seeking for the relief of perpetual injunction and peaceful possession and enjoyment of the suit schedule ‘B’ property against the defendants. In the said suit proceedings, I.A.No.7 has been filed by the defendant No.1 on 28.7.2014 raising question of jurisdiction of the Court to try the suit. I.A.No.8 has been filed by the plaintiff on 25.8.2015 for amendment of the plaint seeking the relief of declaration of title to the suit schedule ‘B’ properties and in the alternative, if the Court were to conclude that the defendants are in possession, direct the defendants to handover physical vacant possession of the schedule ‘B’ property to the plaintiff. For the purpose of valuation, the schedule ‘B’ property has been valued at Rs.6,00,000/- (Rupees six lakhs) and the court fee is paid in terms of the valuation slip appended thereto.
3. The Trial Court considering these applications held that I.A.No.7 has to be considered first which goes to the root of the matter as regards the jurisdiction of the Court. This order has been challenged in these writ petitions. However, pursuant to the order passed on 8.7.2017, the Trial Court proceeded to pass an order on 10.7.2017 ordering the plaint to be returned to the plaintiff to present before the proper court having competent jurisdiction to try the suit by invoking the provision under Order 7 Rule 10 of CPC. Pursuant to the said order passed on 10.7.2017, the petitioner has filed M.A.No.5/2017 before the learned District & Sessions Judge, Kodagu, Madikeri, Sitting at Virajpet, which is pending for consideration.
4. Learned Senior counsel Sri.Dyan Chinnappa representing the learned counsel on record would submit that the Trial Court ought to have considered I.A.No.8 filed by the petitioner on 25.08.2015 seeking for amendment of the plaint first and then would have decided I.A.No.7 regarding the jurisdiction of the court. On the contrary, the Trial Court proceeded to decide I.A.No.7 and finally directed to return the plaint to the plaintiff to present before the proper court which is untenable.
5. Learned counsel for the respondent No.1 supports the impugned order. Learned counsel for the respondent No.2 submits that the defendant No.2 is not a proper and necessary party to the proceedings. Learned counsel for the defendant No.2 submits that an application is filed before this Court under Order 1 Rule 10(2) r/w Section 151 CPC to delete respondent No.2 from the proceedings.
6. Having heard the learned counsel for the parties, it is evident that by virtue of the order passed on 10.7.2017 the plaint has been returned to the plaintiff to present before the proper court having competent jurisdiction to try the suit and the same is pending before the Lower Appellate Court for adjudication. In such circumstances, considering the order passed on 8.7.2017 to decide I.A.No.7 first would not be necessary at this stage since the suit is not pending consideration before the Trial Court in view of the subsequent order dated 10.7.2017.
7. Considering the totality of the circumstances, this court finds it appropriate to reserve liberty to the petitioner to urge all the grounds including the preference to be given to I.A.No.8 inasmuch as the amendment of the plaint sought for in the pending appeal proceedings. It is made clear that no finding is given on the merits or demerits of the applications I.A.Nos.7 and 8 filed by the parties to the suit. Keeping open all the rights and contentions of the parties as aforesaid, the writ petitions stand disposed of. It is needless to observe that defendant No.2/respondent No.2 is also at liberty to urge all the grounds including the prayer sought for in the application filed before this Court seeking for deletion of the defendant No.2 from the proceedings.
With the aforesaid observations and directions, writ petitions stand disposed of.
In view of the disposal of the writ petitions, all the pending I.As stand disposed of.
Sd/- JUDGE Dvr: