IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.46965/2012 (GM-CPC) BETWEEN:
SRI ANTHONY JOHN @ SURESH S/O R. FRANCIES FABRICATION WORKS AGED ABOUT 50 YEARS R/O VINAYAKA INDUSTRIES SAVARLINO ROAD SHIMOGA-577 101 ... PETITIONER (BY SRI PRUTHVI WODEYAR, ADVOCATE) AND:
1. SMT. G.R.GIRIJAMMA W/O LATE G.M.RENUKAPPA AGED ABOUT 60 YEARS 2. G.R.SHIVAKUMAR S/O LATE G.M.RENUKAPPA AGED ABOUT 33 YEARS 3. G.R.MANJUNATH S/O LATE G.M.RENUKAPPA AGED ABOUT 32 YEARS 4. G.R.SUDHEEP S/O LATE G.M.RENUKAPPA AGED ABOUT 28 YEARS RESPONDENTS 1 TO 4 ARE R/O RENUKA NILAYA BEHIND CANARA BANK SHESHADRIPURAM SHIVAMOGGA – 577 101 5. SMT. G.P.PRABHAVATHI W/O G.M.PARAMESHWARAPPA AGED ABOUT 56 YEARS SAVARLINE ROAD SHIMOGA – 577 101 6. G.P.PRASHANTH S/O LATE G.M.PARAMESHWARAPPA AGED ABOUT 27 YEARS R/O SAVARLINE ROAD SHIMOGGA – 577 101 7. G.P.PALLAVI D/O LATE G.M.PARAMESHWARAPPA AGED ABOUT 26 YEARS R/O SAVARLINE ROAD SHIMOGGA – 577 101 8. G.P.POOJA D/O LATE G.M.PARAMESHWARAPPA AGED ABOUT 26 YEARS R/O SAVARLINE ROAD SHIMOGGA – 577 101 9. G.P.PRAMODA S/O LATE G.M.PARAMESHWARAPPA AGED ABOUT 26 YEARS R/O SAVARLINE ROAD SHIMOGGA – 577 101 10. G.M.MANJUNATHA S/O LATE G.C.MURIGEPPA AGED ABOUT 55 YEARS R/O SAVARLINE ROAD SHIMOGGA – 577 101 ... RESPONDENTS (NOTICE TO R1, R2 & R4 IS HELD SUFFICIENT V/C/O DATED 18.06.2015; R3 & R5 TO R9 SERVED; NOTICE TO R10 IS DISPENSED WITH V/C/O DATED 25.03.2013) WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.10.12 PASSED BY THE COURT OF PRL. CIVIL JUDGE (JR.DN.) & JMFC, SHIVAMOGGA ON I.A.NO.VI UNDER SECTION 10 OF CPC, IN O.S.NO.33/07 VIDE ANNEXURE-F.
WP COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by defendant no.1 and is directed against an interlocutory order dated 08.10.2012 passed by the trial court dismissing his application-I.A.No.6 filed under Section 10 of CPC for stay of further proceedings in the suit in O.S.No.33/2007 till the disposal of the suit in O.S.No.280/2005.
2. I have heard Sri Pruthvi Wodeyar, learned counsel appearing for the petitioner and perused the impugned order.
3. The trial court has dismissed the aforesaid application filed by the petitioner with the following reasoning:
“6. This suit is filed for ejectment. The 1st defendant i.e, the tenant has contended that there is a partition suit in respect of the suit schedule property between the plaintiffs and the defendant No.2 is pending in O.S.No.280/2005 before the Hon’ble I.Addl.Senior Civil Judge, Shivamogga and therefore the present suit needs to be stayed only until the determination of partition suit.
7. In the present suit the tenancy and its termination is in issue need to be determined.
The only question is whether the 1st defendant is a tenant under the plaintiffs. Even other wise the plaintiffs and 2nd defendant are the members of the joint family and therefore they have got equal rights over the suit schedule property. According to the plaintiffs there is already a partition. According to 2nd defendant he is absolute owner of the suit schedule property. If the plaintiffs able to proof the tenancy of the 1st defendant under them, they may be entitled for the relief sought in the suit subject to the proof of other fact. The pendency of partition suit is nothing to do with the determination of this suit. Therefore, there is no need to stay the present suit ”
4. I find no error in the above reasoning to warrant interference under the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. The writ petition is devoid of merit and is accordingly dismissed.
Petition dismissed.
Sd/- JUDGE hkh.