Allowed

Saraswatamma W/O Kumar Gouda v. Shivapa S/O Shankarappa and Ors.

Karnataka HC21 Jul 2016WP/201147/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging a non-speaking dismissal of an application under Order VII Rule 11 CPC and Section 27 Limitation Act. The court held that no reasons were assigned for rejecting the application, rendered it appealable, and directed the lower court to hear both parties and pass a reasoned order within two weeks.

What did the court decide?

The impugned order dated 16.01.2014 is set aside. Directions issued to hear both parties upon I.A.No. III and to pass a reasoned order within two weeks.

Saraswatamma W/O Kumar Gouda Vs Shivapa S/O… — Civil Procedure and Limitation | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 21^ST DAY OF JULY 2016

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BEFORE

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THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.201147/2014 (GM-CPC)

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Between:

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Saraswatamma W/o Kumar Gouda Age: 75 years Occ: Housewife & Agriculture R/o Bellary Through her GPA holder B. Biranna S/o B. Nagappa Kulkarni Aged about 69 years Occ: Transport Business & Agriculture R/o Makthalpet, Raichur

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… Petitioner

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(By Sri Shivanand Patil, Advocate)

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And:

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Shivappa S/o Shankarappa Age: 52 years, Occ: Agriculture

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Narasamma S/o Bhimappa Age: 69 years, Occ: Agriculture R/o Jegarkal Tq. & Dist. Raichur – 584 101

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Smt. Eramma W/o Bassanna Age: 67 years, Occ: Agriculture

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R/o Singandodi

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Tq. & Dist. Raichur – 584 101

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Narasappa S/o Bassanna Age: 50 years, Occ: Agriculture R/o Singandodi Tq. & Dist. Raichur – 584 101

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… Respondents

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(By Sri Ameet Kumar Deshpande, Advocate)

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This petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 16.01.2014 in O.S.No.141/2012 on the file of Prl. Senior Civil Judge & C.J.M. at Raichur as at Annexure-F, etc.

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This petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:

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O R D E R

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The petitioner has challenged the legality of the order dated 16.01.2014 passed by the Principal Senior Civil Judge and CJM, Raichur, whereby the learned Judge has dismissed the application filed by the petitioner under Order VII, Rule 11 (a) and (d) of CPC r/w Section 27 of the Limitation Act.

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Briefly the facts the case are that the respondents-plaintiffs had filed a civil suit, namely

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O.S.No.141/2012, against the petitioner for declaration of title, permanent injunction, and for rectification of revenue records in respect of agricultural lands falling in Sy.Nos.125 and 126 located in Singandodi Village,

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Taluk and District Raichur. According to the respondents-plaintiffs, they were the owners of the said lands. Although the petitioner had no concern either with the land, or with his family, yet the petitioner managed to get her name entered in the revenue records, and was trying to alienate the lands. Hence, the civil suit.

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After service of notice upon the petitioner, the petitioner filed an application under Order VII Rule 11 (a) and (d) of CPC r/w Section 27 of the Limitation Act, wherein the petitioner pointed out that even earlier the respondents-plaintiffs had filed a civil suit, namely O.S.No.424/2011, before the Additional Civil Judge and JMFC, Raichur, in respect of the same land. In the said

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civil suit a temporary injunction was granted in favour of the respondents-plaintiffs. Therefore, according to the petitioner, the present civil suit, namely O.S.No.141/2012, does not disclose any cause of action, and is barred by limitation. However, by order dated 16.01.2014, the learned Judge has rejected the application. Hence, this petition before this court.

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Mr. Shivanand Patil, learned counsel for the petitioner, submits that the impugned order is a cryptic, non-speaking order. Although a prayer was made by the learned counsel for the petitioner for taking up the case on the next date, the prayer was rejected, and without hearing the counsel, the application has been dismissed. Secondly, no reasons have been given for rejecting the said application. Therefore, the impugned order deserves to be set aside by this court.

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On the other hand, the learned counsel for the respondents submits that it is the discretion of the trial

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court to grant or not to grant an adjournment. Secondly, even on earlier occasions chances were given to the learned counsel for the petitioner to argue the application, but he failed to do so. Thus, the learned Judge was justified in rejecting the application. Therefore, the learned counsel has supported the impugned order.

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Heard the learned counsel for the parties, and

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perused the impugned order.

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The impugned order is as under:

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“Adv for GAG P.T. prayer rejected Arg on IA III by GAG taken as nil. Application I.A. No.III is rejected.

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For P/E by 3/2

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A bare perusal of the impugned order clearly

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reveals that no reason has been assigned for rejecting

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the application filed by the petitioner. Even if on an earlier occasion, time was prayed and time was granted, there is no reason for the learned Judge not to give any reason for rejecting the application. After all, since the impugned order is an appealable one, it is imperative for the learned Judge to give reasons for rejecting the application. Since the application would have decided the fate of the civil suit itself, the application could not have been brushed aside in a casual manner.

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For the reasons stated above, this petition is hereby allowed. The impugned order dated 16.01.2014 is set aside. The learned Judge is directed to hear both the parties upon the application, namely I.A.No.III and to pass reasoned order. The said exercise shall be carried out within a period of two weeks form the date of receipt of a certified copy of this order.

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Sd/JUDGE

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NB*

Saraswatamma W/O Kumar Gouda v. Shivapa S/O Shankarappa and Ors.

Case brief

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Saraswatamma W/O Kumar Gouda v. Shivapa S/O Shankarappa and Ors.

Case brief

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