IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.34429 OF 2014 (GM CPC) BETWEEN:
Sri.L.Christopher, S/o Lourdunathan, Aged about 52 years, No.533/22, 63rd Cross, 5th Block, Rajajinagar, Bangalore-560 010.
Presently residing at:
R/o No.628, HAL, Ejipura, Bangalore-560 047.
(By Sri.K.Varaprasad, Advocate) AND:
Sri.M.Shankar S/o late Manikyam, Aged about 70 years, R/at No.26, 1st Cross, Gajendranagar Slum, M.S.R. Nagar Post, Bangalore-560 033.
(By Sri.C.V.Krishna Reddy, Advocate) ….Petitioner …Respondent This Writ petition is filed under Articles 226 and 227 of Constitution of India, praying to set aside the order dated 19.06.2014 passed by the learned XXXIX Additional City Civil, Judge Bangalore City, Bangalore on IA dated 17.09.2013, filed by the petitioner in OS.No.3156/2012, for permission file counter claim vide Annexure-N and to allow the said application by granting the reliefs as sought therein.
This petition coming on for Preliminary Hearing in ‘B’ group, this day, the Court made the following:
ORDER Though matter is listed for Preliminary hearing, by consent of learned advocates appearing for both the parties, it is taken up for final hearing.
2. Short question that arises for consideration in this writ petition is: Whether impugned order dated 19.06.2014 rejecting the application filed under Section 151 of CPC for grant of permission to the defendant to file the counter-claim petition, is to be affirmed or set aside?.
3. Respondent herein has filed a suit O.S.No.7814/2009 against the petitioner-defendant for permanent injunction in respect of the suit schedule property and during the pendency of said suit, one more suit came to be filed by respondent herein i.e. OS.No.3156/2012 seeking for declaration of title over the suit scheduled property namely, to declare that plaintiff has perfeted title to suit the schedule property by way of adverse possession.
4. In the suit OS.NO.7814/2009 filed by respondent, petitioner herein had appeared and filed the written statement on 14.06.2010 denying the plaint averments. As noticed herein above, OS.No.3516/2012 was filed subsequently by the respondent and learned counsel for the defendant entered appearance on 23.11.2012 and matter came to be posted for filing of the written statement and objections on 01.01.2013. Thereafter when the matter was listed on 17.09.2013 for filing of the written statement and objections, petitioner-defendant filed written statement under Order VIII Rule 1 of CPC and counter claim under Order 8 Rule 6A read with Section 151 of CPC.
5. However, for the reasons best known, application under Section 151 CPC was filed seeking leave of the Court to file counter claim. Learned trial Judge after having noticed two suits having been filed by the respondent herein, though formed an opinion under the impugned order that the counter claim has already been filed by the defendant in OS.No.3156/2012 dated 17.09.2013, dismissed the application Annexure-K.
6. Since, learned trial Judge himself has opined that counter claim has already been filed and same is also on record, question of entertaining the application filed under Section 151 of CPC-Annexure-K was not called for and allowing of said application or dismissing the same would not have changed or altered the position.
7. In that view of the matter, it is hereby clarified that counter claim Annexure-J filed by the writ petitioner-defendant in O.S.NO.3156/2012 having already been taken on record, setting aside the impugned order does not arise and with this clarification, this writ petition stands disposed of.
8. It is also made clear that respondent herein would be at liberty to file the written statement to the counter claim if not already filed expeditiously and at any rate within thirty days from the next date of hearing fixed by the trial Court.
SD/- JUDGE SB