SMT SHANTHAMMA vs. K S KRISHNA SINCE DEAD BY LRS

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE 2016 BEFORE

THE HON’BLE MR.JUSTICE BUDIHAL R.B.

WRIT PETITION NO.38076/2015 C/W WRIT PETITION NOS.40521/2015 AND 38476/2015(GM-CPC)

IN WRIT PETITION NO.38076/2015

BETWEEN

ALL ARE R/AT NO.1253, DR AMBEDKAR ROAD KRISHNAMURTHYPURAM MYSORE-570 004.

... PETITIONERS

(BY SRI G KRISHNAMURTHY, SR. ADV. FOR SRI SRIKANTH PATIL K, ADV.)

2 AND:

1(A). M KAMALAMMA AGED ABOUT 74 YEARS W/O LATE K B KRISHNA

1(B). K PADMANABHA AGED ABOUT 53 YEARS S/O LATE K B KRISHNA

1(C). LOKESH AGED ABOUT 51 YEARS S/O LATE K B KRISHNA

1(D). K PRAKASH AGED ABOUT 52 YEARS S/O LATE K B KRISHNA

1(E). K JAGADISH AGED ABOUT 50 YEARS S/O LATE K B KRISHNA

1(F). K SATHISH AGED ABOUT 41 YEARS S/O LATE K B KRISHNA

ALL ARE R/AT NO.613/5-6, CHAMARAJA DOUBLE ROAD, MYSORE-570 024

1(G). SMT K GAYATHRI SINCE DEAD BY HER LRS

1(G)(I). S TEJAS S/O LATE GAYATHRI AGED ABOUT 24 YEARS

3 1(G)(II). SRI CHIRANTH S/O LATE GAYATHRI AGED ABOUT 22 YEARS

1(G)(III). K S SHIVAKUMAR S/O SWAMYGOWDA AND HUSBAND OF LATE GAYATHRI AGED ABOUT 62 YEARS

1(G)(I) TO 1(G)(III) ARE R/AT NITI MARG SIDDARTHANAGAR, MYSORE-570 011.

SL.NO.2 TO 5 ARE S/O LATE M B BASAVAIAH R/A NO.2644-45, III CROSS, K G KOPPAL MYSORE-570 009.

SINCE DECEASED BY L.RS.

6(A). B.J.MASTIGOWDA, S/O LATE JAVAREGOWDA,

4 SINCE DEAD BY LRS,

6(B). B.M.MANJUNATH, S/O B.J.MASTIGOWDA, AGED ABOUT 67 YEARS,

6(C). SMT.B.M. RENUKA D/O B.J.MASTIGOWDA, AGED ABOUT 68 YEARS,

6(D). B.M.ESHAPRAKASH S/O B.J.MASTIGOWDA, AGED ABOUT 66 YEARS,

6(E). SMT.B.M. GAYATHRI D/O B.J.MASTIGOWDA, AGED ABOUT 63 YEARS.

6(F). SMT.B.M. UMA D/O B.J.MASTIGOWDA, AGED ABOUT 61 YEARS,

6(A) TO 6(F) ARE R/AT NO.2, 5TH MAIN, PARAMAHAMSA ROAD, YADAVGIRI, MYSORE-570 002

5 K.R.NAGAR TALUK-571 604.

11(A). SMT PADMINI, D/O LATE SRINIVASA, AGED ABOUT 45 YEARS, R/AT PLOT NO.103, SRINIDHI APARTMENT, KAMAKSHI HOSPITAL ROAD, SARASWATHIPURAM, MYSORE-560 009.

6 R/AT NO.1131/2, VANI VILAS ROAD II MAIN, KRISHNAMRUTHYPURAM MYSORE-570 009.

(A) CHIKKATHAYAMMA, W/O RAJANNA, AGED ABOUT 60 YEARS, R/AT NAVILUR, SANAGANOOR POST, CHAMARAJNAGAR TALUK, CHAMARAJNAGAR DISTRICT-571 124.

(B) RUKMINI W/O VARADARAJU, AGED ABOUT 59 YEARS, R/AT NO.4613, 3RD CROSS, N.R.MOHALLA, MYSORE-570 007.

(C) JAYALAKSHMI W/O ANANTHEGOWDA, AGED ABOUT 58 YEARS, R/AT NO. 5/3, TREASURER COLONY, BOGADI, II STAGE, MYSORE-570 009.

(D) C.RAMAKRISHNA S/O LATE CHIKKANNA,

7 AGED ABOUT 57 YEARS, R/AT NO.2349, PAMPAPATHI ROAD, OPP-CHAMARAJAPURAM RLY, STATION, K.G.KOPPAL, MYSORE-570 009.

(E) C.SIDDAIAH S/O LATE CHIKKANNA, SINCE DEAD BY LRS,

(1) SMT.SUNANDA, W/O LATE C.SIDDAIAH, AGED ABOUT 58 YEARS,

(2) C.CHANDRASEKHAR S/O LATE C.SIDDAIAH, AGED ABOUT 40 YEARS,

(3) SMT.S.NIRMALA D/O LATE C.SIDDAIAH, AGED ABOUT 38 YEARS R/A NO.1/02/1, B.M.ROAD 12TH CROSS, KUVEMPU NAGARA CHANNAPATNA-562160 BANGALORE DISTRICT,

(4) SOMASHEKAR S/O LATE C.SIDDAIAH, AGED ABOUT 36 YEARS,

15(E) (1) TO (4) ARE R/AT NO.2349 PAMPAPATHI ROAD OPP-CHAMARAJAPURAM RLY. STATION, K.G. KOPPAL CHAMARAJPURAM MYSORE-570 009.

8 16. M.B.GOPAL S/O LATE BORAIAH, SINCE DEAD BY LR

16(A) INDUMATHI, W/O LATE M.B.GOPAL, SINCE DEAD BY LRS,

16(B) THIRTHA PRASAD, AGED ABOUT 35 YEARS,

16(C) BANUPRASAD AGED ABOUT 32 YEARS,

16(D) KANYAKUMARI AGED ABOUT 29 YEARS,

ALL ARE SONS AND DAUGHTER OF LATE M.B.GOPAL, R/AT NO.2862, CH-7, BEHIND LAW COURT, SARASWATHIPURAM, MYSORE-570 009.

... RESPONDENTS

(BY SRI C SHASHIKANTHA, ADV. FOR R-16(A TO D) V/O DTD 17/12/15 NOTICE TO R-1(G)(I TO III), R-3, R-6(A-F), R-8 TO R-11(A), R-15(C) ARE DISPENSED WITH V/O DATED 23.2.16, R-1 TO R-4 AND R-6 TO R- 11 ARE TREATED AS LRS OF DECEASED R-5 AND ISSUANCE OF NOTICE TO R-13 IS DISPENSED WITH SRI KIRAN J, ADV. FOR R-15(A) R-1(A) TO R-1(D), R-1(F), R-2, R-4, R-7, R-12, R-13, R-14 ARE SERVED AND UNREPRESENTED, R-15(B), R-15(D), R-15(E)(1 TO 4) ARE SERVED AND UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN FDP NO.6/1998 ON THE

9 FILE OF THE PRL. JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU AND ETC.

IN WRIT PETITION NO.40521/2015

BETWEEN

B BORAIAH S/O LATE BASAVAIAH AGED ABOUT 92 YEARS R/AT NO.2770-71-72/CH-21 SARASWATHIPURAM MYSORE-570 009.

... PETITIONER

(BY SRI SANDESH J CHOUTA, ADV.) AND:

S/O LATE M.B.GOPAL

AGED ABOUT 33 YEARS

R/AT D.H.NO.2862

CH-7, BEHIND LAW COURT

SARASWATHIPURAM

MYSORE-570 009.

SINCE DEAD BY LRS

A. M KAMALAMMA

AGED ABOUT 74 YEARS

B. K PADMANABHA

AGED ABOUT 53 YEARS

C. LOKESH

AGED ABOUT 51 YEARS

D. K PRAKASH

AGED ABOUT 52 YEARS

E. K JAGADISH

AGED ABOUT 50 YEARS

F. K SATHISH

AGED ABOUT 41 YEARS

G. SMT K GAYATHRI

SINCE DEAD BY HER LR.S

1.G.(I) S TEJAS

S/O LATE GAYATHRI

AGED ABOUT 24 YEARS

1.G.(II) SRI CHIRANTH

S/O LATE GAYATHRI

AGED ABOUT 22 YEARS

1.G.(III) K S SHIVAKUMAR

S/O SWAMYGOWDA AND

HUSBAND OF LATE GAYATHRI

AGED ABOUT 62 YEARS

1.G.(I) TO 1.G.(III) ARE R/AT

NITI MARG, SIDDARTHANAGAR

MYSORE.

ALL ARE WIFE, SONS AND DAUGHTER OF LATE K.B. KRISHNA R/AT NO.613/5-6 CHAMARAJA DOUBLE ROAD MYSORE-570 024.

AGED ABOUT 78 YEARS

AGED ABOUT 67 YEARS

AGED ABOUT 64 YEARS

W/O LATE M.B. BASAVAIAH

SL. NOS. 3 TO 6 ARE SONS OF LATE M.B. BASAVAIAH R/AT NO.2644-45 III CROSS, K.G. KOPPAL MYSORE-570 009.

@ BORAMMA

SINCE DEAD BY L.R.S

7(A). B.J. MASTIGOWDA

S/O LATE JAVAREGOWDA

SINCE DEAD BY L.R.S

7(B) B.M. MANJUNATH

S/O B.J. MASTIGOWDA

AGED ABOUT 67 YEARS

7(C) SMT. B.M.RENUKA

D/O B.J. MASTIGOWDA

AGED ABOUT 68 YEARS

7(D) B.M. ESHAPRAKASH

S/O B.J. MASTIGOWDA

AGED ABOUT 66 YEARS

7(E) SMT B M GAYATHRI

D/O B.J. MASTIGOWDA

AGED ABOUT 63 YEARS

7(F) SMT B M UMA

D/O B.J. MASTIGOWDA

AGED ABOUT 61 YEARS

6(A) TO (F) ARE R/AT NO.2

5TH MAIN

PARAMAHAMSA ROAD

YADAVAGIRI

MYSORE-560 002.

@ KEMPAMMA

AGED ABOUT 68 YEARS

W/O SHESHAPPA

R/AT THENKAN KOPPAL

BELIKERE HOBLI

MYSORE TALUK-571 103.

AGED ABOUT 68 YEARS

W/O S T KRISHNA

R/AT SALIGRAMA TOWN

K.R. NAGAR TALUK-571 604.

AGED ABOUT 67 YEARS

W/O GOVINDAPPA

R/AT GUNGRAL CHATRA

YELWAL HOBLI

MYSORE TALUK-571 130.

AGED ABOUT 62 YEARS

W/O RAJASHEKARAPPA

R/AT SALIGRAMA TOWN

K.R. NAGAR TALUK-571 604.

W/O LATE SRINIVASA

SINCE DEAD BY L.R

12(A) SMT. PADMINI

D/O LATE SRINIVASA

AGED ABOUT 45 YEARS

R/AT PLOT NO. 103

SRINIDHI APARTMENT

KAMAKSHI HOSPITAL ROAD

SARASWATHIPURAM

MYSORE-560 009.

@ CHIKKABORAIAH

S/O LATE BORAIAH SINCE DECEASED BY L.RS.

13(A) PUTTATAYAMMA

W/O M.B. BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 77 YEARS

13(B) M B NARENDRA BABU

S/O LATE M B BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 58 YEARS

13(C) M B CHANDRASHEKAR

S/O M.B. BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 54 YEARS

13(D) GEETHA

W/O LATE SUNDHAR D/O M.B. BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 56 YEARS

13(E) SMT YOGANANDINI

W/O GANESH

D/O M.B. BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 52 YEARS

14 13(F) SMT SARASWATHI

W/O RAMANAND

D/O M.B. BALACHANDRA

@ CHIKKABORAIAH

AGED ABOUT 50 YEARS

ALL ARE RESIDENTS OF NO.207/S, 1 B CROSS 4TH MAIN ROAD, 1ST BLOCK RAMAKRISHNANAGAR MYSORE-570 022

R/AT NO.1131/2, VANI VILAS ROAD II MAIN, KRISHNAMURTHYPURAM MYSORE-570 009.

S/O LATE CHIKKANNA

AGED ABOUT 63 YEARS

R/AT D.NO.2644-45

III CROSS, K.G. KOPPAL

MYSORE-570 009.

W/O LATE CHIKKANNA

DEAD BY HER LRS

A) CHIKKATHAYAMMA

W/O RAJANNA

AGED ABOUT 60 YEARS

R/AT NAVILUR

SANAGANOOR POST

CHAMARAJNAGAR TALUK

CHAMARAJNAGAR DISTRICT-571 124.

B) RUKMINI

W/O VARADARAJU

AGED ABOUT 59 YEARS

R/AT NO.4613, 3RD CROSS

N.R. MOHALLA

MYSORE-570 007.

C) JAYALAKSHMI

W/O ANANTHEGOWDA

AGED ABOUT 58 YEARS

R/AT NO.5/3, TREASURER COLONY

BOGADI, II STAGE

MYSORE-570 009.

D) C RAMAKRISHNA

S/O LATE CHIKKANNA

AGED ABOUT 57 YEARS

R/AT NO.2349

PAMPAPATHI ROAD

OPP-CHAMARAJAPURAM RLY.

STATION, MYOSRE-570 009.

S/O LATE CHIKKANNA

SINCE DEAD BY LRS

16(A) SMT. SUNANDA

W/O LATE C SIDDAIAH

AGED ABOUT 58 YEARS

16(B) C CHANDRASEKHAR

S/O LATE C SIDDAIAH

AGED ABOUT 40 YEARS

16(C) SMT S NIRMALA

D/O LATE C SIDDAIAH

AGED ABOUT 38 YEARS

R/AT NO.1/02/1, B.M. ROAD

12TH CROSS, KUVEMPU NAGARA

CHANNAPATNA-562 160

BANGALORE DISTRICT.

16(D) S SOMASHEKAR

S/O LATE C SIDDAIAH

AGED ABOUT 36 YEARS

16(A) TO (D) ARE R/AT NO.2349 PAMPAPATHI ROAD OPP-CHAMARAJAPURAM RLY. STATION, K.G. KOPPAL CHAMARAJPURAM MYSORE-570 009.

S/O LATE BORAIAH

SINCE DEAD BY LRS

A. INDUMATHI

W/O LATE M B GOPAL

SINCE DEAD BY LRS

B. BANUPRASAD

AGED ABOUT 32 YEARS

C. KANYAKUMARI

AGED ABOUT 29 YEARS

17 (A) TO (C) ARE CHILDREN OF LATE M B GOPAL R/AT NO.2862, CH-7 BEHIND LAW COURT SARASWATHIPURAM MYSORE-570 009.

@ K N LAKSHMISHANTHA

W/O LATE NAGARAJ

AGED ABOUT 64 YEARS

S/O LATE NAGARAJ

AGED ABOUT 45 YEARS

D/O LATE NAGARAJ

AGED ABOUT 48 YEARS

ALL ARE R/AT NO.1253 DR. AMBEDKAR ROAD KRISHNAMURTHYPURAM MYSORE-570 004.

….RESPONDENTS

(BY SRI C SHASHIKANTHA, ADV. FOR C/R1 V/O DATED 02.03.2016 SERVICE OF NOTICE TO R-2 TO R- 21 ARE DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN F.D.P.NO.06/1998 OF THE COURT OF THE PRINCIPAL JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU.

IN WRIT PETITION NO.38476/2015

BETWEEN:

... PETITIONERS

(BY SRI SIDDAMALLAPPA P M, ADV.)

AND:

S/O LATE M.B. GOPAL

AGED ABOUT 28 YEARS

R/AT DOOR NO.2862, CH-7

BEHIND LAW COURT SARASWATHIPURAM

MYSORE-570 009

MYSURU.

D/O LATE M.B. GOPAL

AGED ABOUT 26 YEARS

R/AT DOOR NO.2862, CH-7

BEHIND LAW COURT SARASWATHIPURAM

MYSORE-570 009

MYSURU.

S/O LATE K B KRISHNA

AGED ABOUT 48 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

S/O LATE K B KRISHNA

AGED ABOUT 46 YEARS

R/AT DOOR NO.613/5-6 BEHIND LAW COURT SARASWATHIPURAM

MYSORE-570 009

MYSURU.

S/O LATE K B KRISHNA

AGED ABOUT 44 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

S/O LATE K B KRISHNA

AGED ABOUT 42 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

D/O LATE K.B. KRISHNA

SINCE DEAD BY L.R.S

(A) CHIRANTH

S/O K GAYATHRI

AGED ABOUT 20 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

(B) SRI K S SHIVAKUMAR

S/O K GAYATHRI

AGED ABOUT 18 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

DAUGHTER OF LATE K B KRISHNA

AGED ABOUT 36 YEARS

R/AT DOOR NO.613/5-6

CHAMARAJA DOUBLE ROAD

MYSORE-577 009

MYSURU.

W/O LATE M B BASAVAIAH

SINCE DEAD BY L.R.S

A. SRI B M MANJUNATH

S/O LAKSHMAMMA

AGED ABOUT 55 YEARS

R/AT DOOR NO.2644-45

III CROSS

K.G. KOPPAL

MYSORE-577 009

MYSURU.

B. SMT. B.M. RENUKA

D/O LAKSHMAMMA

AGED ABOUT 52 YEARS

R/AT DOOR NO.2644-45

III CROSS

K G KOPPAL

MYSORE-577 009

MYSURU.

C. SRI B.M. ESHAPRASAD

S/O LAKSHMAMMA

AGED ABOUT 50 YEARS

R/AT DOOR NO.2644-45

III CROSS

K G KOPPAL

MYSORE-577 009

MYSURU.

D. SMT. B.M. GAYATHRI

D/O LAKSHMAMMA

AGED ABOUT 46 YEARS

R/AT DOOR NO.2644-45

III CROSS

K G KOPPAL

MYSORE-577 009

MYSURU.

E. SMT. B.M. UMA

D/O LAKSHMAMMA

AGED ABOUT 40 YEARS

R/AT DOOR NO.2644-45

III CROSS

K G KOPPAL

MYSORE-577 009

MYSURU.

A. SMT. PADMINI

23 D/O LATE M.B. LALITHA AGED ABOUT 32 YEARS RESIDING AT DOOR NO. 38, CHAMARAJA DOUBLE ROAD, MYSORE-577 009.

A. SMT. PUTTATHAYAMMA W/O M.B.BALACHANDRA @ CHIKKABORAIAH AGED ABOUT 70 YEARS

B. SRI NARENDRA BABU

S/O M.B.BALACHANDRA @ CHIKKABORAIAH

AGED ABOUT 50 YEARS

C. SRI SHEKAR

S/O M.B.BALACHANDRA @ CHIKKABORAIAH

AGED ABOUT 48 YEARS

D. SMT. GEETHA

D/O M.B.BALACHANDRA @ CHIKKABORAIAH

AGED ABOUT 46 YEARS

E. SMT. NANDINI

D/O M.B.BALACHANDRA @ CHIKKABORAIAH

AGED ABOUT 42 YEARS

F. SMT. SARASWATHI

D/O M.B.BALACHANDRA @ CHIKKABORAIAH

AGED ABOUT 40 YEARS

ALL ARE R/AT DOOR NO.1131/2 VANIVILAS ROAD, II CROSS KRISHNAMURTHIPURAM BEHIND ADULT EDUCATION OFFICE MYSORE-570 008 MYSURU.

25 KRISHNAMURTHIPURAM MYSORE-570 008.

SINCE DEAD BY LRS

A. SMT. SUNANDA

W/O LATE SIDDAIAH

AGED ABOUT 60 YEARS

B. SRI CHANDRASHEKAR

S/O LATE SIDDAIAH

AGED ABOUT 40 YEARS

C. SRI SOMASHEKAR

S/O LATE SIDDAIAH

AGED ABOUT 38 YEARS

D. SMT. S. NIRMALA

D/O LATE SIDDAIAH

AGED ABOUT 35 YEARS

ALL ARE R/AT DOOR NO.2644-45

III CROSS

K G KOPPAL

MYSORE-570 009.

W/O RAJANNA

AGED ABOUT 65 YEARS

R/AT NAVELUR VILLAGE

SANAGANOOR POST

CHAMARAJANAGAR TALUK

CHAMARAJANAGAR DISTRICT.

W/O VARADARAJU

AGED ABOUT 63 YEARS

R/AT NO.4613, 3RD CROSS

N R MOHALLA

MYSORE-570 008

MYSURU.

W/O ANANTHEGOWDA

AGED ABOUT 60 YEARS

R/AT NO. T/3

TREASURY COLONY

BOGADI 2ND STAGE

MYSORE-570 010

MYSURU.

S/O LATE CHIKKANNA

AGED ABOUT 58 YEARS

R/AT NO.2349

PAMPATHI ROAD

OPP. CHAMARAJAPURAM RAILWAY STATION MYSORE-570 012.

... RESPONDENTS

(BY SRI. C SHASHIKANTHA, ADV. FOR R-1 V/O DATED 05.10.2015 NOTICE TO R-2 TO R-27 IS DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE TRIAL COURT DTD.7.8.2015 PASSED BY THE LEARNED PRINCIPAL

27 JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE IN FDP NO.6/1998 VIDE ANNEX-F.

THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

These three writ petitions are filed by the petitioners challenging the order dated 7.8.2015 passed by the Principal Judge, Small Causes and Senior Civil Judge Mysuru on I.A No.V in FDP No.6/1998.

W.P. No.40521/2015 is filed by defendant No.1. W.P. No.38476/2015 is filed plaintiff No.1(a), plaintiff No.1(f), plaintiff Nos.2 to 4 praying the Court to call for records in FDP No.6/1998 of the Court of Principal Judge, Small Causes and Senior Civil Judge Mysuru and to issue writ of certiorari or any other direction and to set aside the impugned order dated 7.8.2015 passed on I.A.

28 No.V in FDP No.6/1998 by the Principal Judge, Small Causes and Senior Civil Judge Mysuru.

29 schedule property, then the theatre has to be divided in seven shares as mentioned in Annexure-B which ought to have been shown as actual division in “C” schedule property instead of “B” schedule property and that it is apparent/clerical/typographical mistake. By going through the entire order, one can make out that the observation made in the operative portion of the order relating to the “C” schedule property had nothing to do with ‘B’ schedule property; in fact, regarding portion of “B” schedule property the operative portion itself is elaborate (as detailed in pages 36 to 39); the division of “B” schedule property has not been linked with the division of “C” schedule property and as such, the reference to the “B” schedule property in the operative portion of the order relating to the “C” schedule property is a typographical mistake apparent on the face of the record. As soon as this mistake came to his notice, he filed this application. The opponents have rightly construed the said order to “C” schedule property as could be seen from the appeal memorandum preferred

30 before this Court in RFA No.353/2001 and hence, prays to allow the said application. The plaintiffs/respondents and respondent No.1, 8 and legal representatives of respondent No.9 have filed their separate objections to the said application. So also, respondent No.3 has filed detailed separate objection and defendant/respondents Nos.4 to 7 have also filed their separate objection statement and sought to dismiss the said application. After considering the merits of the application I.A. No.V ultimately, the FDP Court allowed the application and ordered for correction of the decree by order dated 7.8.2015.

31 appearing for respondents/legal representatives of defendant No.2.

32 Court and any corrections to be made, have to be done before this Court itself and not by the FDP Court. The learned trial judge while dealing with the FDP ought to have appreciated the said proposition and there is misreading and misinterpretation of the scope of Section 152 CPC and also about the powers of the said FDP Court in entertaining the said application. Learned Senior Advocate has submitted that the application filed seeking correction of the judgment and decree is not on the clerical/typographical error and the FDP Court has failed to appreciate that if the application is entertained and the judgment and decree is modified, it substantially affects the rights of the parties. He further submitted that there is no difficulty and ambiguity in understanding the order dated 22.2.2001 since it is mentioned in clear terms that “Alternatively, if defendant No.2 failed to own theatre and pay balance amount before the date of actual division in “B” schedule property, then said Chamundeshwari theatre has to be divided in 7 shares as mentioned in

33 Annexure-B sketch prepared by the Court”. Hence it is submitted that the interpretation made by the applicant/legal representatives of defendant No.2 that it is pertaining to “C” schedule property and not “B” schedule property cannot be accepted at all. The Division Bench of this Court in its order has given clear finding regarding eviction proceedings and liberty was reserved to parties to initiate eviction proceedings in respect of “C” schedule property. The said liberty has been exercised by the sharers and the respective parties are in possession and enjoyment of their shares of the “C” schedule property. Neither defendant No.2 nor the FDP Court are competent to make different interpretation of the judgment and decree passed by the Division Bench of this Court. The application has been filed after the lapse of 13 years and hence, application was liable to be dismissed on the ground of limitation. He has also submitted that the said application was filed with malafide intention and the application lacks bonafides and accordingly, submitted to allow the writ

34 petitions and to set aside the order passed by the FDP Court. In support of his contention learned senior counsel has relied upon the following decisions: (i) AIR 1974 SC 1380 in the case of Gojer Bros. (Pvt.) Ltd., Vs. Shri Ratan Lal Singh.

(ii) (2006) 1 SCC 380 in the case of UPSRTC Vs. Imtiaz Hussain

(iii) (2001) 4 SCC 181 in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho

(iv) AIR 1980 Kerala 76 (FB) in the case of Kannan Vs. Narayani

(v) (1999) ILR 2 Cal 564 in the case of Umapada Pal Vs. Durgesh Nandini Ghosh

(vi) MANU/PH/2951/2013 in the case Shashi Pal Vs. State of Punjab and another

(vii) 1967(2) Mys L J 317 in the case of M Koraga Shetty Vs. Sheik Abdul Latif Saheb

35 per the doctrine of acquiescence and waiver of the rights, the legal representatives of defendant No.2 cannot maintain such application before the FDP Court. The legal representatives of defendant No.2 are estopped under the principle of estoppel as per the provisions of Section 115 of the Evidence Act. As such, they cannot seek the amendment/modification of the decree under the guise that there is clerical/typographical mistake in the judgment and decree passed by the Court below. It is also his submission that as per the judgment and decree passed by the Division Bench of this Court in RFA and also RFA Crob “C” schedule property has already been divided between the parties and even the property extract shows the name of defendant No.1. He submitted that as per the doctrine of merger of the order of the FDP Court with the order passed by the Division Bench of this Court in RFA, the legal representatives of defendant No.2 ought to have filed such application before this Court and the application filed before the FDP Court was wrongly entertained by

36 the said Court and hence, the order passed by the FDP Court is not sustainable in law. Learned counsel further submits that he also adopts the arguments advanced by the learned senior advocate in the connected writ petition. In support of his contention, learned counsel for the petitioner has relied upon the following decisions: (i) AIR 1958 SC 868 in the case of Commissioner of Income Tax Vs. M/s. Amritlal Bhogilal

(ii) AIR 1963 SC 1124 in the case of Collector of Customs Vs. East India Commercial Co. Ltd.,

(iii) 1967(2) Mys. L.J. 317 in the case of M Koraga Shetty Vs. Sheik Abdul Latif Saheb

(iv) 1969(3) SCC 384 in the case of Somnath Sahu Vs. The State of Orissa and others

(v) AIR 1974 PATNA 289 in the case of Somar Bhuiya Vs. Kapil Kumar Gautham

(vi) 1989(4) SCC 582 in the case of S.S.Rathore Vs. State of Madhya Pradesh (7 judge Bench)

37 (vii) 1998(7) SCC 386 in the case of Abbai Maligai Partnership Firm Vs. K.Santhakumaran

(viii) 2000(6) SCC 359 in the case of Kunhayammed Vs. State of Kerala

(ix) 2007(4) SCC 221 in the case of A.V.Papayya Sastry Vs. Govt. of A.P.

(x) 1964 AIR 377 in the case of Bank of Bihar Vs. Mahabir Lal and others

(xi) 1982(2) SCC 463 in the case of State of Maharashtra Vs. Ramdas Srinivas Naik and another

(xii) 2011(12) SCC 658 in the case of Vimaleshwar Nagappa Shet Vs. Noor Ahmed Sharief and others.

(xiii) AIR 2001 SC 1084 in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho

(xiv) AIR 2012 SC 3285 in the case of Bhartiya Seva Samaj Trust Tr. Pres. and another Vs. Yogeshbhai Ambalal Patel and another

(xv) AIR 2013 SC 1690 in the case of Bhagwati Developers Private Ltd., Vs. Peerless General Finance Investment Co. Ltd., and others

38 FDP Court is patently illegal and not in accordance with law, as such, the writ petition may be allowed and the order challenged in the writ petition be set aside. He also adopted the arguments advanced by the learned Senior Advocate and also the learned counsel in other connected writ petitions.

39 said RFA and hence, the legal representatives of defendant No.2 ought to have filed the said application before this Court cannot be accepted at all. The learned counsel submitted that when there is mistake committed by the Court itself while passing the judgment and order, no limitation is applicable to correct the same. Regarding the delay of 13 years in filing the application as contended by the writ petitioners, the learned counsel submitted that the delay was because of the stay order in respect of “A” and “C” schedule properties. Drawing the attention of this Court to the order of the FDP Court, the learned counsel submitted that the said order is legal and it is in accordance with the material placed on record. The writ petitioners themselves have filed an application under Section 152 of CPC under I.A.No.1/2013 in RFA seeking correction of the order and now they are contending that the FDP Court has no jurisdiction to entertain such application and hence, it is submitted that the writ petitioners cannot approbate and

40 reprobate. He also drew the attention of the Court to the objection statement (Annexure-R1) so also, the contents of the affidavit filed by the petitioners and submitted that there is no merger of the FDP Court order into the judgment and decree passed by the Division Bench of this Court in the RFA and hence, the application filed before the FDP Court was maintainable and the FDP Court has rightly entertained the application and after noticing the clerical/typographical error in the order, the same was clarified by allowing the application. Accordingly, the learned counsel submitted that there is no merit in the writ petitions and the same may be dismissed. In support of his contentions, the learned counsel has relied upon the following decisions:

(i) AIR 1967 SC 681 in the case of State of Madras Vs. Madurai Mills. Co. Ltd.,

(ii) 1995 Supp. (4) SCC 582 in the case of Tiko (SMT.) and others Vs. Lachman

41 (iii) (2000)6 SCC 359 in the case of Kunhayammed and others Vs. State of Kerala and another

(iv) (2003)2 SCC 330 in the case of Prathibha Singh and another Vs. Shanthi Devi Prasad and another

(v) AIR 1975 KAR 107 in the case of Kale Gowda Vs. Akkayamma and others

(vi) ILR 1983 KAR 141 in the case of Niyaz Ahmed Khan and others Vs. Gurappa and another

(vii) ILR 1990 KAR 1522 in the case of Noor Mohammed Vs. Navarathanmal.

(viii) AIR 2006 KER 135 in the case of H.Krishnan and others Vs. Mohammed @ Kunhan and others

(ix) LAWS (KER)-1993-7-32 in the case of Abdhu Vs. Assainar

(x) AIR 2006 HP 114 in the case of Devi Roop Vs. Smt.Devku and others

(xi) AIR 2004 AP 91 in the case of State Bank of Hyderabad Vs. B.Rangaswamy and others

42 referred to above, so also, the grounds urged in the above three writ petitions.

44 I.A.No.V/2014 filed under Section 152 of the CPC seeking amendment of the decree so far as the “C” schedule property is concerned has been challenged by the petitioners. Therefore, it is necessary to mention as to the order of the FDP Court passed in respect of “C” schedule property while disposing off FDP No.6/1998, which reads as under:

“C” schedule property bearing Municipal No.202, 202/1 and 2, 203, 204 to 208 situated at Sayyajirao road, Mysore.

Firstly, the defendant No.2 is permitted to purchase the theatre for the price fixed by the Commissioner Rs.4,32,00,000/- and after deducting his share amount, have to pay the balance amount towards the share of other co-sharers at the time of execution.

Alternatively, if the defendant No.2 failed to own the theatre and pay the balance amount before the date of actual division in ‘B’ schedule property, then the said Chamundeshwari theatre has to be divided in seven shares as mentioned in Annexure-B sketch prepared by Court.”

In the further portion of the said order in respect of “C” schedule properties, portions allotted to each co-shares

45 is mentioned in detail, which is not necessary to reproduce. The order passed in the said FDP proceedings was challenged before this Court in R.F.A.No.353/2001 by the plaintiffs and some of the defendants in the said suit have also filed the cross objection which was numbered as R.F.A.Crob No.16/2001. The Division Bench of this Court disposed of the said appeal as well as the cross objection by a common judgment dated 19.4.2012. The common order passed by this Court reads as under: “(i) The appeal is partly allowed.

(ii) The partition in respect of ‘A’ schedule property will be in accordance with the joint memo filed by the parties on 19.4.2012 along with six sketches. The joint memo and sketches shall become part of the judgment and decree. (iii) The final decree passed by the trial Court in respect of the remaining schedule properties remain undisturbed.

(iv) The cross objection is dismissed.

(v) Parties to bear their own costs.”

Subsequent to the passing of the judgment and decree in the said appeal by this Court, the legal representatives of deceased defendant No.2 filed application before the FDP Court under Section 152 of the CPC seeking to amend the clerical mistake that has crept in the order dated 22.2.2001 and prayed the FDP Court to substitute the letter “C” schedule property in place of letter “B’’ schedule property in the order dated 22.2.2001 at line No.13 of page No.39 under the sub- heading “C” Schedule property. The application was also supported by the affidavit of one Sri.M.G.Thirthaprasad, the legal representative of deceased defendant No.2. The application was opposed by the plaintiffs and some of the defendants by filing their separate objection statement. After considering the merits of the application, ultimately, the FDP Court has allowed the said application and ordered for the correction/amendment in respect of “C” schedule property by substituting the word “C” in place of “B”.

47 Being aggrieved by the order of the FDP Court passed on the said application, writ petitioners in all the three writ petitions are before this Court.

48 long lapse of time, therefore, the application was barred by law of limitation.

49 property is concerned. It is further observed that “C” schedule property was not the subject matter of this appeal. The second defendant before the trial Court did put forth the case of tenancy in respect of theatre, which is located in the “C” schedule property after accepting the judgment of the trial Court that each one of them is entitled for 1/7th share. The trial Court has negatived the said contention. We after hearing the parties have confirmed that finding of the trial Court also and except for extent “C” schedule property was not the subject matter of the appeal at all. Therefore, amending operative portion of the judgment in terms of the observations made in the judgment would not arise for consideration. Hence, I.A.No.1/2013 is rejected.”

50 Therefore, this aspect has been taken into consideration by the FDP Court while passing the order on application filed under Section 152 of CPC.

51 time. In this regard, I have also perused the decisions relied upon by learned counsel appearing for the legal representatives of deceased defendant No.2, which are cited above. Considering the materials on record, it is seen that the factual aspects involved in the case on hand and the facts and circumstances involved in the reported decisions relied upon by the writ petitioners are not exactly one and the same. Therefore, the decisions relied upon by the learned counsel for the writ petitioners will not come to the aid and assistance of the writ petitioners. Further, the FDP Court has considered each and every aspect of the matter extensively and has rightly come to the conclusion in allowing the amendment application filed by the legal representatives of deceased defendant No.2.

52 application I.A.No.V. Accordingly, all the three writ petitions are hereby dismissed.

Sd/- JUDGE

Cs/bkp Ct-SG