IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2757 OF 2016 (GM-CPC) BETWEEN:
SRI. S. HARISH KUMAR S/O. MRS. V.K. MEENAKSHI AGED ABOUT 41 YEARS R/AT NO. 28, GENAPATHI NAGARA MAIN ROAD OPP TO SNEHA SAMBRAMA KALYANA MANTAPPA PEENYA III STAGE, LAGGERE POST BANGALORE-560 058. ... PETITIONER (BY SRI. RAVINDRA PRASAD B., ADV.) AND:
1. SMT. V.K. PARVATHI AGE: 73 YEARS W/O. LATE M.N.VENKATAPPA R/AT DOOR NO. 354, JETTY STREET NAZRABAD MOHALLA MYSORE-570 010.
2. MR. V.K. SURENDRA AGE: 63 YEARS S/O. LATE KUNNAIAH VASANTHANILAYA NEAR JUICE FACTORY GONIKOPPAL SOUTH KODAGU-571213.
3. MR. T. SHANKAR AGE 83 YEARS S/O. MRS. V.K. MEENAKSHI 4. MR. S. KIRAN S/O. MRS. V.K. MEENAKSHI, AGED ABOUT 39 YEARS, 5. MRS. S. BHARATHI S/O. MRS. V.K. MEENAKSHI, AGE 47 YEARS, 6. MRS. S. SAVITHA S/O. MRS. V.K. MEENAKSHI, AGE 40 YEARS, PETITIONERS NO. 3 TO 6 ARE LEGAL HEIRS OF LATE V.K. MEENAKSHI, R/AT NO.28, GENAPATHI NAGARA MAIN ROAD, OPP. TO SNEHA SAMBRAMA KALYANA MANTAPPA, PEENYA III STAGE, LAGGERE POST, BANGALORE-560 058.
7. MRS. V.K. SAROJA AGE 70 YEARS, W/O. MR. RAMAKRISHNA, R/AT NO. 33, TALAGATTAPURA VILLAGE, AND POST, KANAKAPURA ROAD, BANGALORE-560 062.
8. MR. V.K. RADHA AGE 65 YEARS, W/O. MR. VIJENDRA S.D. R/AT D.NO. 106, 1ST STAGE, SARASWATHINAGAR, VIJAYANAGAR, BANGALORE-560 040.
9. MRS. V.K. PREMA @ RAJAMMA AGE 61 YEARS, W/O. MR. NAGARAJA R/AT NO.8, 3RD MAIN KUMARAVYASA ROAD SRINAGAR BANGALORE-560 050.
10. MR. N. PRANESH AGE 35 YEARS S/O. LATE V.K. THAYAKKA R/AT: KAIKERE VILLAGE GONIKOPPAL, SOUTH KODAGU-571 213.
11. MRS. LEELA THIMMAIAH AGE 50 YEARS, W/O. LATE V.K. THIMMAIAH, 12. MR. SAJITH KUMAR AGE MAJOR, S/O. LATE V.K. THIMMAIAH, RESPONDENT NOS. 11 AND 12 ARE LEGAL HEIRS OF LATE V.K. THIMMAIAH, R/AT NO.141, 6TH "B" MAIN ROAD, REMKO LAYOUT, VIJAYANAGAR, BANGALORE-560 040.
13. MR. V.K. RAMACHANDRA AGE 65 YEARS, S/O. LATE KUNNAIAH, NO.162, 3RD MAIN ROAD, PADMANABHANAGAR, BSK 2ND STAGE, BANGALORE-560 070.
14. MR. V.K. GANESH AGE 59 YEARS, R/AT NO. 186, 2ND MAIN, 14TH CROSS, II STAGE, RAILWAY LAYOUT, VIJAYANAGAR, MYSORE-570 016. ... RESPONDENTS (BY SRI. M.N. MADHUSUDHAN, ADV. FOR R2 SRI. RAGHUNANDAN M.S., ADV. FOR R1, R3 - R6 SRI. C.R. SUBRAMANYA, ADV. FOR R11 TO R14 R7, R8, R9 AND R10 ARE SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE HON'BLE COURT OF THE SENIOR CIVIL JUDGE & JMFC VIRAJPET, ON THE I.A.NO.V DTD:28.9.2015 IN FDP NO.19/2013 VIDE ANENXURE-F AND FURTHER ALLOW THE SAID IA NO.5.
THIS PETITION IS COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed the present writ petition against the impugned order dated 28.09.2015 on I.A. No.V under Order XVIII, R-17 read with Sec.151 of Code of Civil Procedure (‘CPC’, for short) in FDP No.19/2013 rejecting the application with cost of Rs.100/- filed for recalling the commission notice issued by the trial court.
2. The respondent Nos. 11 to 14 being legal heirs of late Thimmaiah filed the RFA No.319/1998 challenging the decree passed in O.S.No.22/1995 and same was allowed on 20.01.2003. Aggrieved by the said order, the 2nd respondent has filed the appeal before the Hon’ble Supreme Court in Civil Appeal No.1499/2004 and said appeal came to be dismissed on 10.04.2013 confirming the judgment and decree of the High Court that the 2nd respondent is entitled for 11/50th share out of the suit schedule properties and daughters are entitled for 1/50th share in each of the suit properties. Thereafter, Thimmaiah, one of the decree holder filed FDP No.19/2013 before the Senior Civil Judge & JMFC, Virajpet. During pendency of the proceedings, an application came to be filed under Order XXVI Rule 13 of CPC to recall the commission notice issued, contending that without giving an opportunity to file objections by the petitioner, has allowed the said application and appointed Court Commissioner for survey and demarcation of the agricultural properties. Aggrieved by the said order, petitioner filed IA No.5 under Order XVIII Rule 17 of CPC seeking to recall the commission notice which was dismissed by virtue of order dated 28.09.2015 passed by the Senior Civil Judge & JMFC, Virajpet in FDP No.19/2013. Being aggrieved by the dismissal of the said IA, petitioner filed the present writ petition.
3. In the same FDP, the plaintiff also filed an applications under Section 151 to 153 of CPC for amendment of 1/10th equal share. In view of the Provisions of Sec.6 of Hindu Succession (Amendment) Act, 2005 the said applications came to be resisted and the learned trial judge dismissed the application by the impugned order dated 28.09.2015 with cost of Rs.500/-.
4. I have heard the learned counsel for both the parties.
5. Sri. Ravindra Prasad B, learned counsel for petitioner contended that the impugned order passed by the trial Court rejecting the application is erroneous and contrary to the material on record. He further contended that the trial Court failed to exercise the power vested in it under Order 20 Rule 18 CPC which has resulted in miscarriage of justice to the petitioner. The Court below ought to have recalled the matter as the petitioner has not filed their objection and sufficient opportunity has not provided to the petitioner which is totally against the principal of natural justice. He further contended that the trial court has misdirected itself and held that the Bar Member is a surveyor to demarcate the land when the court commissioner do not have any knowledge with regard to the survey, instead of appointing a bar member the Government Surveyor or Tahsildar would have been appointed as Court Commissioner to survey and to demarcate the suit schedule properties. Hence, he sought to allow the writ petition.
6. Per contra, Sri. Raghunandan M.S., learned counsel for respondents 1, 3 to 6 fairly submits that the impugned order passed by the trial court requires for re-consideration by the trial court after providing an opportunity to file the objections by the petitioner and pass an order in accordance with law.
7. Having heard the learned counsel for both the parties, it is undisputed fact that RFA No.319/98 came to be decreed by this Court and it was confirmed by the Supreme Court in C.A.No.1499/2004. Thereafter, in the FDP proceedings, the respondent No.3a filed an application under Order XXVI Rule 13 of CPC to recall the commission notice. The trial Court ought to have provided an opportunity to the present petitioner before passing an impugned order.
8. In view of the fair submission made by the learned counsel for the parties, without adjudicating the matter on merits and demerits, the application filed by the petitioner has tobe allowed in part directing the trial court to proceed with the FDP after following the procedures as contemplated under Section 54 of CPC.
9. For the reasons stated above, writ petition is allowed. Impugned order passed by the Senior Civil Judge and JMFC, Virajpet on IA No.V dated 28.09.2015 in FDP NO.19/2013 is quashed. IA No.5 filed by the petitioner is allowed in part with a direction to proceed further only in accordance with the provisions of Sec.54 of the Amendment of Provisions of CPC and pass appropriate orders in accordance with law.
Accordingly, writ petition is disposed of.
Sd/-
JUDGE JS/-