IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.35332 OF 2017 (GM-CPC) BETWEEN:
S.KUMAR AGED 28 YEARS S/O B.S.NAIDU NO.117/4, 3RD BLOCK 6TH CROSS, T.R.NAGAR BANGALORE – 560 028 ... PETITIONER (BY SRI.K.N.PUTTEGOWDA, ADVOCATE) AND:
1. B. S. NAIDU SINCE DEAD BY LRS.
1(A) SMT. JYOTHI W/O. B.S. NAIDU AGED ABOUT 50 YEARS 1(B) SMT. JEEVINI D/O. B.S. NAIDU AGED ABOUT 25 YEARS BOTH R/AT NO.2/3, II FLOOR 19TH "D" MAIN ROAD BSK III STAGE, III PHASE BANGALORE-86 2. B. SRINIVAS AGED ABOUT 50 YEARS S/O. LATE B.V. NAIDU NO.24/25, LOKESH BUILDING II MAIN, III STAGE, III PHASE KATHARAIGUPPA EAST BANGALORE-85 3. DR. B. GURAPPA NAIDU AGED ABOUT 44 YEARS S/O. LATE B.V. NAIDU NO.42, 6TH CROSS JAVARAIAH GARDEN T.R. NAGAR, III BLOCK BANGALORE-28 4. B. GOPI NAIDU AGED ABOUT 39 YEARS S/O. LATE B.V. NAIDU RESIDING AT NO.38, 7TH BLOCK 7TH MAIN, NAIDU LAYOUT BANASHANKARI III STAGE BANGALORE-560 085 5. B. DEVARAJ NAIDU AGED ABOUT 35 YEARS S/O. LATE B.V. NAIDU NO.107/4, III BLOCK 6TH CROSS, T.R. NAGAR BANGALORE-28 6. SMT. DHANALAKSHMI AGED ABOUT 55 YEARS W/O. NARASIMHALU NAIDU NO.6, 1ST "D" MAIN ROAD III PHASE, 5TH BLOCK, 5TH BLOCK III STAGE, BANGALORE-85 7. SMT. PADMAVATHI AGED ABOUT 48 YEARS W/O. VARADAPPA NAIDU NO.5, 1ST "D" MAIN ROAD III PHASE, 5TH BLOCK, III STAGE BANGALORE-85 8. SMT. SARASWATHI AGED ABOUT 43 YEARS D/O. LATE B.V. NAIDU NO.107/4, III BLOCK 6TH CROSS, T.R.NAGAR BANGALORE-28 9. SMT. RAJAMMA AGED ABOUT 80 YEARS W/O. LATE B.V.NAIDU NO.107/4, III BLOCK 6TH CROSS, T.R. NAGAR BANGALORE-28 10.DINESH S/O. MALLAJI RAO AGED ABOUT 34 YEARS 11.T. CHAYAPATHI S/O. M. CHANNAIAH AGED ABOUT 32 YEARS 12.MR. RAJEEVI S/O. GOPALACHARYA AGED BOUT 71 YEARS 13.MR. SRINIVAS K.R. S/O. K.C. RARNAJ 1NA AGED ABOUT 34 YEARS 14.MR. ANAND S/O. BALASUBRAMANYA AGED ABOUT 34 YEARS 15.SMT. CHANDRIKA KAMATH W/O. S. I. KAMATH AGED ABOUT 41 YEARS 16.MR. RAMNATH SHENOY S/O. LATE B.GOPAL RAO AGED ABOUT 47 YEARS 17.MR. BHASKAR RAO S/O. NARASIMHA RAO AGED ABOUT 32 YEARS 18.MR. ROOP KUMAR S/O. V. NARAYANA RAO AGED ABOUT 34 YEARS 19.MR. ANAND. H. L.
S/O. LATE H.L.NARASIMHAIAH AGED ABOUT 61 YEARS 20.MR. H. NAGABHUSHANA RAO S/O. LATE SRI.H.K.HANUMANTHA RAO AGED ABOUT 72 YEARS 21.MR. VISHWANATH S/O. BHASKARCHAR AGED ABOUT 35 YEARS 22.MR. SRINIVAS SETTY S/O. S.R. SRINATH AGED ABOUT 58 YEARS 23.SMT. L. NAGARATHNA W/O. RAJA RAO MORO AGED ABOUT 58 YEARS 24.KIRAN KUMAR S/O K.N.NARAYAN RAO AGED ABOUT 38 YEARS 25.MR.RAVISH RAO S/O NARAYAN RAO AGED ABOUT 33 YEARS 26.MR.SURESH AGED ABOUT 28 YEARS 27.MR.ANAND S/O BASAPPA AGED ABOUT 25 YEARS 28.KRS DECORATORS BY ITS MANAGING DIRECTOR 29.MR.ANAND 30.MR.MARKONDAIAHA AGED 60 YEARS 31.SMT.S.LESEA NAIDU W/O LATE B.SRIRAMULU NAIDU AGED ABOUT 46 YEARS 32.SRI. S. BALACHANDRA NAIDU AGED 24 YEARS 33.SRI. S. LOKESH NAIDU AGED ABOUT 22 YEARS 34.KUM.S.REVATHI NAIDU MAJOR 35.KUM.S.GAYATHRI NAIDU MAJOR RESPONDENTS 32 AND 35 ARE CHILDREN OF LATE B. SRIRAMULU NAIDU AND SMT. S. LEELA NAIDU DEFENDANT NO.31 ALL ARE RESIDING AT NO.2/3, 1ST "D" MAIN,7TH CROSS, 5TH BLOCK 3RD PHASE, BSK III STAGE BANGALORE-560 085 ... RESPONDENTS (SRI.P.R.NARENDRA, ADVOCATE FOR RESPONDENT NOS.31 TO 35 SERVICE OF NOTICE TO RESPONDENTS 1 TO 30 IS DISPENSED WITH VIDE ORDER DATED 7.8.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.7.2017 PASSED IN O.S.NO.3067/2003 PENDING ON THE FILE OF THE XLIII ADDL. CITY CIVIL JUDGE IN I.A.NO.42 AT BANGALORE AT ANNEXURE-F, ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the plaintiff against the order dated 25.7.2017, allowing I.A.No.42 filed under the provisions of Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure by the defendant Nos.31 to 33 and 35 to recall the order dated 1.7.2017 and permit the defendants to lead their further evidence.
2. The plaintiff – petitioner filed the suit for partition and separate possession contending that the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.1 to 9 and 31 to 35 and there was no partition in the joint family. The defendant Nos.1 to 9 filed their written statement supporting the case of the plaintiff. The defendant Nos.31 to 35 filed their written statement, denied the plaint averments and contended that they are in possession of the suit schedule properties by virtue of an unregistered Will and sought for dismissal of the suit.
3. After completion of evidence of both sides, when the matter was posted for arguments, at that stage, the defendant Nos.1 to 33 and 35 filed an application under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure to recall the order dated 1.7.2017 and permit the defendants to lead their further evidence, stating that the father of the defendant No.33 has executed a Will dated 7.8.1966 in favour of his brother and himself as per Ex.D11. The said Will was the subject matter of a criminal case and the original Will is before the V Additional Chief Metropolitan Magistrate. Time was granted to file objections to the application. On 25.7.2017, since no representation was made on behalf of the plaintiff, the Trial Court allowed I.A.No.42 on payment of cost of `500/-. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.K.N.Puttegowda, the learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court allowing I.A.No.42 filed under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure is erroneous and not a speaking order. He further contended that similar 2 applications being I.A.Nos.26 and 35 were filed earlier by the very defendants and the Trial Court has rejected the said applications on 11.4.2014 and 12.8.2015, respectively, not allowing the marking of the Will. The said orders have reached finality. Therefore, the present application is not maintainable under the provisions of Section 11 of the Code of Civil Procedure. Therefore, he sought to quash the impugned order by allowing the writ petition.
6. Per contra, Sri.P.R.Narendra, the learned counsel for the respondents 31 to 35 sought to justify the impugned order and contended that when the matter was posted on 25.7.2017, the plaintiff was absent and there was no representation on his behalf. Therefore, the Trial Court had no option except to proceed to pass the impugned order. In spite of granting time, the plaintiff has not availed the opportunity to file his objections. Therefore, he sought for dismissal of the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that when the matter was posted on 25.7.2017 for objections to I.A.No.42, the counsel for the plaintiff was absent and no representation was made. Therefore, the Trial Court has taken the objections as nil and on perusal of I.A.No.42, allowed the application on payment of cost of `500/-. The learned Judge has not assigned any reasons for allowing the application, except stating that I.A.No.42 is perused. This clearly indicates that the impugned order passed by the Trial Court is not a speaking order and is without application of mind. Only one opportunity was provided to file objections. The learned Judge ought to have given another opportunity to file objections. It is also not in dispute similar applications I.A.Nos.26 and 35 filed to mark the Will came to be rejected on 11.4.2014 and 12.8.2015, respectively.
8. In view of the above, the writ petition is allowed and the impugned order dated 25.7.2017 is quashed. The Trial Court is directed to reconsider I.A.No.42 permitting the plaintiff to file objections to the application. The plaintiff is permitted to file objections on the next date of hearing, that is, on 20.1.2018. The learned Judge is directed to consider the objections and pass orders in accordance with law. Since the suit is of the year 2007 and we are in 2017, the Trial court is directed to expedite the suit itself, subject to cooperation of the parties to lis.
Sd/- JUDGE AHB