SMT. D. V. RAJYALAKSHMI vs. SRI. JAGADISH @ JAGADISH PRASAD

W.P.No.651/2018

- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21st DAY OF AUGUST, 2018

BEFORE

HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE

WRIT PETITION NO. 651 OF 2018 (GM-CPC) BETWEEN: SMT D V RAJYALAKSHMI W/O D V BHASKAR RAO AGED ABOUT 73 YEARS RESIDING AT NO.3 INCOME TAX LAYOUT SADANANDA NAGAR NGEF EAST BANGALORE – 560038

... PETITIONER

(BY SRI.CHANDRA SHEKARA SHETTY G, ADVOCATE)

AND: 1. SRI JAGADISH @ JAGADISH PRASAD S/O LATE A RAMAPRASAD AGED ABOUT 60 YEARS R/AT NO.42, 1ST MAIN ASHWATHNAGAR BANGALORE – 560094.

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- 2 - 4. SMT YAMUNA W/O SRI RAMAKRISHNA AGED ABOUT 55 YEARS R/AT NO.5, BYRASANDRA MAIN ROAD, JAYANAGARA BANGALORE -560011.

W/O C.S.ANAND

AGED ABOUT 45 YEARS

W/O C.S.SRINIVASA REDDY

AGED ABOUT 43 YEARS

RESPONDENTS NO.8 & 9

ARE R/AT NO.66/12, 7TH MAIN ROAD

1ST CROSS, BTM LAYOUT

BANGALORE – 560 076

NO.2, 80 FEET ROAD

W.P.No.651/2018

- 3 -

HRBR LAYOUT, KALYAN NAGAR

BANGALORE – 560 043

REP. BY ITS MANAGING TRUSTEE

SRI. VENKATAPATHI

S/O LATE MUNIYAPPA

AGED ABOUT 50 YEARS

S/O LATE MUNIYAPPA

AGED ABOUT 48 YEARS

S/O LATE MUNIYAPPA

AGED ABOUT 45 YEARS

S/O LATE MUNIYAPPA

AGED ABOUT 43 YEARS

S/O LATE MUNIYAPPA

AGED ABOUT 40 YEARS

S/O LATE MUNIYAPPA

AGED ABOUT 40 YEARS

RESPONDENTS NO.11 TO 16

ARE RESIDING AT HIRANDAHALLI

VILLAGE, BIDARAHALLI HOBLI

HOSKOTE TALUK – 562 114

BANGALORE RURAL DISTRICT ... RESPONDENTS

(SRI.PRABHUGOUD B.TUMBIGI, ADVOCATE FOR RESPONDENT NO.1 NOTICE TO RESPONDENT NOS.2 – 16 DISPENSED WITH VIDE ORDER DATED 1.12.2018)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN WRIT OF MANDAMUS BY QUASHING THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE

W.P.No.651/2018

- 4 - RURAL DISTRICT, BANGALORE IN O.S.NO.199/2005 ON I.A.NO.13 UNDER SECTION 151 OF CPC DATED 28.11.2017, AS PER ANNEXURE-F AND ETC.

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Having heard learned counsel for the parties and having perused the material placed on record, this Court is clearly of the view that the impugned order dated 28.11.2017, as passed in O.S.No.199/2005 by the Principal Senior Civil Judge, Bengaluru (R) District, Bengaluru deserves to be modified, so far relating to I.A.No.13 filed by the present petitioner, who is defendant No.9 in the said suit.

The said suit (O.S.No.199/2005) has been filed by the respondent No.1 of this petition seeking partition of the suit schedule properties and for allotment of his 1/6th share therein. As per the plaint averments, the plaintiff/respondent No.1 has questioned the alienation of the part of the suit schedule properties to the defendant Nos.6, 7 and 8. The petitioner herein has been arrayed as defendant No.9 in the said suit, who had allegedly purchased 35 guntas of

W.P.No.651/2018

- 5 - converted land from the defendant No.6 through two sale deeds dated 05.03.2003 and 18.08.2004. Though the petitioner, who was subsequently joined as a party to the suit, did not file her written statement nor filed any memo for adopting the written statement of any other defendant but then, at a later stage, when the matter was posted for defendants’ evidence, the petitioner filed a memo dated 04.11.2017 and also filed an application I.A.No.13 seeking permission of the Trial Court to adopt the written statement of the defendant No.6 and to defend the matter. Another application seeking permission to file written statement was filed by defendant No.10, being I.A.No.9. The Trial Court has rejected both the applications by the impugned common order dated 28.11.2017, essentially on the grounds that no material as regards alleged ill-health of the defendants was placed on record; that the trial of the case had been concluded and only when the matter was about to be posted for arguments, such applications were filed to delay the proceedings. The Trial Court has, inter alia, observed as under:

W.P.No.651/2018

- 6 - "4. The above suit is for the relief of partition and for other reliefs. The plaintiffs also sought for declaration, declaring the sale deed of the year 1976 as not binding on the plaintiffs etc. Admittedly, the defendants No.9 and 10 were brought on record in the year 2014, which is evident from the order sheet. The defendants No.9 and 10 ought to have filed their written statement within 30 days from the date of service of summons on the impleading application or within the outer limit of 90 days. Both the eventualities are over. Trial of the case also been concluded and when the matter was about to be posted for arguments on merits of the case, the above applications came to be filed by the defendants No.9 and 10 for obvious reasons. The Order 8 Rule 1 of C.P.C is a mandatory provision and defendants No.9 and 10 ought to have filed their written statement within the stipulated period. The defendants No.9 and 10 except stating that they were not keeping good health on the relevant point of time, no material is placed on record to substantiate the same. The above matter is of the year 2005. Having regard to the age of the suit, the applications filed by the defendants No.9 and 10 belatedly, deserve to be dismissed. Accordingly, I.A.No.9 and 13 by the defendants No.9 and 10 are hereby dismissed."

True it is that there had been delay on the part of the present petitioner in filing her written statement or the memo for adopting other defendant’s written statement but, in the opinion of this Court, looking to the subject matter of the suit and the pleadings already taken, the prayer of the petitioner could have been allowed so as to effectually determine all the

W.P.No.651/2018

- 7 - questions involved in the matter, particularly when the present petitioner is said to have stepped into the shoes of the defendant No.6 and is not seeking to file any separate written statement. So far the aspect relating to ailment or disablement is concerned, it is noticed that the petitioner had indicated about the physical disability of the representatives of the defendant No.6-Karnataka Disabled Welfare Society and else, she had only stated her case to be of bonafide mistake. However, the petitioner has also submitted that she was in possession of the property purchased from the defendant No.6. In the totality of the circumstances, it appears appropriate that the prayer as made by the petitioner be allowed on costs while making it clear that she would not be entitled to get the trial re-opened except leading her evidence on the date to be fixed by the Trial Court. In view of the present scenario where some parts of the State are seriously suffering from the effects of calamities, on the suggestions of the Court, it is agreed to that the amount of costs to be borne by the petitioner in this matter be deposited in the relevant relief fund.

W.P.No.651/2018

- 8 - Accordingly, this petition is allowed to the extent and in the manner indicated above; and the impugned order is modified in the relation to the prayer of the petitioner, subject to the condition that the petitioner shall deposit costs in the sum of Rs.10,000/- (Rupees ten thousand) in the “Chief Minister’s Relief Fund Natural Calamity, 2018” on or before the next date of hearing fixed by the Trial Court. If the amount is so deposited and the proof thereof is placed before the Trial Court, the petitioner shall be allowed to adopt the written statement of the defendant No.6 subject to further conditions that by such adopting of the written statement, the petitioner shall not be entitled to seek framing of any additional issue or requiring any witness hitherto examined to be recalled for cross examination. The petitioner would only be allowed to lead her evidence on a date to be fixed by the Trial Court and no further adjournment shall be given for the purpose, barring extremely unavoidable circumstances. It is also considered appropriate and hence, observed that it would be expected of the Trial Court to assign a reasonable priority to the suit in question, said to be pending

W.P.No.651/2018

- 9 - since the year 2005 and to make an endeavour to dispose of the same at the earliest, preferably before the end of the month of October 2018.

Sd/- CHIEF JUSTICE brn/BSR