CIT vs M V Gnanendranath | Karnataka High Court 2013

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF JUNE 2013

BEFORE

THE HON’BLE DR. JUSTICE K. BHAKTHAVATSALA

WRIT PETITION NO.16706/2012 (GM-CPC)

BETWEEN

THE COMMISSIONER OF INCOME TAX NO.55/1, SHILPASHREE, VIDHYARANYA COMPLEX, VISHVESHWARANAGAR, MYSORE 570008 ... PETITIONER (BY SRI G.R. INDRAKUMAR, SR. COUNSEL FOR SRI E I SANMATHI, ADV.)

AND

M V GNANENDRANATH S/O LATE M V VENKATAPPA SURVEY NO.87/2, YEDAHALLI, RAYANAKERE POST, MYSORE 570004 ... RESPONDENT (BY SRI M V GNANENDRANATH, PARTY IN PERSON)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RELATED RECORDS FROM THE COURT BELOW CULMINATING IN THE PASSING OF THE IMPUGNED ORDER.

THIS PETITION COMING ON FORPRELIMINARY HEARING “B” GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

2 O R D E R

The petitioner is before this Court praying for quashing the order dated 20.4.2012 passed in O.S.No.380/1995 on the file of the Prl., Senior Civil Judge & CJM, Mysore passed on an application filed under Order XVI Rule 10 of CPC.

Learned Senior Counsel for the petitioner submits that petitioner has produced available documents and furnished all the details as against service of summons and there was nothing to be produced by the petitioner. But the trial court erred in issuing proclamation on the basis of the application filed by the respondent herein (defendant No.3 in the suit).

Respondent-party in person present before the Court submits that the Trial Court has rightly allowed the application and issued proclamation as against the petitioner and there is no illegality or infirmity in the impugned order passed.

The brief facts leading to filing of this petition may be stated as under:- The plaintiff, Sri.M.V.Thilakendranath filed the suit against the defendants for partition and separate possession of his share in the suit property by metes and bounds.

At the instance of the present respondent/defendant No.3, summons was issued to the petitioner herein under Order 16 Rule 1 and 2 of CPC. As against service of summons, petitioner has produced all the necessary information and papers wherein it is stated that fixed deposit receipt was seized during the course of search of the plaintiff’s premises and a total amount of Rs.2,85,122/- has been adjusted against arrears of his wealth tax and income tax. Inspite of production of available documents, respondent- defendant No.3 filed an application under Order 16 Rule 10 of CPC to issue proclamation to secure the attendance of the petitioner. On the basis of the

4 application, the Trial Court allowed the application and passed the impugned order.

When the petitioner has produced all the necessary available papers and particulars and there was nothing more to be done by the petitioner, question of proclamation against the petitioner did not arise. The Trial Court has mechanically passed the impugned order and the same is not sustainable in the eyes of law.

In the result, the petition is allowed and the impugned order is quashed. Consequently, application filed under 16 Rule 10 of CPC is rejected.

Sd/- JUDGE

THE COMMISSIONER OF INCOME TAX vs. M V GNANENDRANATH