Dismissed

Sri.Kadagouda Shivalingappa Patil v. Smt.Annavva W/O Shivalingappa Patil

Karnataka HC17 Jan 2020WP/108431/2018

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed writ petitions challenging orders rejecting applications to recall an order allowing plaintiffs to file a rejoinder in a partition suit. The court held that the trial court's power was valid and the petitioner's delay made interference improper, directing him to file an appeal instead.

What did the court decide?

Writ petitions dismissed; petitioner directed to file appeal if decree is adverse.

Sri.Kadagouda Shivalingappa Patil Vs Smt.Annavva W/O… — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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Dated this the 17^th day of January 2020

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Before

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THE HON’BLE MR.JUSTICE S.G. PANDIT

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Writ Petition No.108431 of 2018 & W.P. No.115189/2019 & 115193/2019 (GM-CPC)

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BETWEEN

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SRI.KADAGOUDA SHIVALINGAPPA PATIL AGED ABOUT: 52 YEARS, OCC: AGRICULTURE, R/O: BASTWAD, TQ: HUKKERI, DIST: BELAGAVI.

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...PETITIONER

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(BY SRI. SUNIL S. DESAI, ADVOCATE)

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AND

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SMT.ANNAVVA W/O SHIVALINGAPPA PATIL AGED ABOUT: 59 YEARS, OCC: AGRICULTURE, R/O: BASTWAD, TQ: HUKKERI, DIST: BELAGAVI-590001.

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SMT.SHIVALEELA W/O BASAVARAJ CHOUGALA AGED ABOUT: 45 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, TQ: HUKKERI, DIST: BELAGAVI-590001.

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SMT.LAXMIBAI W/O ASHOK BEDKIHAL AGED ABOUT: 43 YEARS, OCC: AGRICULTURE, R/O: GADHINGALJ ROAD, SANKESHWAR, TQ: HUKKERI, DIST: BELAGAVI-590001.

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SMT.SHIVAVVA W/O PRAKASH VANTAMURI AGED ABOUT: 39 YEARS, OCC: AGRICULTURE, R/O: BASTWAD, TQ: HUKKERI, DIST: BELAGAVI-590001.

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SRI.ASHOK MALAGOUDA PATIL AGED ABOUT: 46 YEARS, OCC: BUSINESS, R/O: BASTWAD, TQ: HUKKERI, DIST: BELAGAVI-590001. ...RESPONDENTS

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(BY SRI. SUNANDA P PATIL, ADVOCATE FOR C/R1-R4)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT ORDER OR DIRECTION, IN THE NATURE OF CERTIORARI, QUASHING THE ORDER DATED 31.10.2018 PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI ON I.A.NO.5 & 6 IN O.S.NO.103/2014, AS PER ANNEXURE-M; AND ISSUE A WRIT ORDER OR DIRETION, IN THE NATUE OF CERTIORARI, QUASHING THE ORDER DATED 19.09.2015 PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI ON I.A.NO.4 IN O.S.NO.103/2014 AS PER ANNEXURE-F.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, who is defendant No.1 in O.S. No.103/2014, is before this Court under Article 226 of the Constitution of India assailing the order dated 31.10.2018 passed on I.A. Nos.5 and 6 by which the petitioner’s application (I.A. No.5) seeking to recall the order dated 19.09.2015 passed on I.A. No.4 and the application (I.A. No.6) seeking permission to file objections to I.A.No.4 are rejected.

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Heard the learned counsel for the petitioner and the learned counsel for caveators/respondents No.1 to 4.

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Since the respondent No.5 is co-defendant along with the petitioner herein in the suit, issuance of notice to respondent No.5 is dispensed with.

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The grievance of the petitioner/defendant No.1 is that the plaintiffs filed I.A. No.4 under Section

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151 of the Code of Civil Procedure, 1908, seeking permission to file rejoinder to the written statement filed by defendant No.1. The said application was filed on 19.09.2015. On the same day, without providing an opportunity to the petitioner/defendant No.1, the said application came to be allowed and the plaintiffs/respondents No.1 to 4 were permitted to file rejoinder to the written statement. It is the case of the petitioner that when there is a specific proviso under Order VIII Rule 9 of CPC which provides for filing of subsequent pleadings, the application I.A. No.4 filed under Section 151 of CPC would not be maintainable. Further, he submits that, in the rejoinder filed by the plaintiffs, a new case has been made out by stating that the suit schedule properties inherited by Siddagouda are self-acquired properties. No opportunity was provided to oppose the application. Hence, learned counsel prays for an opportunity to file objections to I.A. No.4 and to make submissions before the Trial Court.

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caveators/respondents No.1 to 4 submits that I.A. No.4 was allowed on 19.09.2015 and thereafter the respondents made an application for recalling the said order, seeking permission to file objections. Even though the impugned order rejecting the applications was made on 31.10.2018, the petitioner/defendant No.1 was not diligent in prosecuting the matter. It is submitted that after rejection of I.A. Nos.5 and 6, which is impugned in these writ petitions, the petitioner participated in the further proceedings and he has cross-examined the plaintiffs and also examined himself as one of the witnesses. Further, he was also cross-examined. At the time of cross-examination of P.W.1, the defendant No.1 has taken note of the rejoinder filed by the plaintiffs and he has cross-examined P.W.1 on rejoinder statement also. Therefore, much development has taken place subsequent to the impugned order. Hence, at this stage,

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it is not proper to interfere with the impugned orders. Thus, she prays for rejection of the writ petitions.

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Having heard the learned counsel for the

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parties and on perusal of the material on record, the only point which falls for consideration is as to whether, at this stage of proceedings, interference of this Court with the impugned order is required. The answer to the above is in the negative for the following reasons:

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(a) The suit is one for partition and separate possession. The defendant No.1 filed his written statement. Subsequent to filing of the written statement, plaintiffs filed I.A. No.4 under Section 151 of CPC seeking permission of the Court to file rejoinder. The contention of the petitioner that when there is specific provisions under Order VIII Rule 9 of CPC, the application filed by the plaintiff under Section 151 would not be maintainable. It would be pertinent to mention here itself that wrong mentioning or non-mentioning of

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a provision would not vitiate the order if the power of the Court is traceable to any of the provisions. As submitted Order VIII Rule 9 of CPC provides for filing of rejoinder with the permission of the Court. Here, in the instant case, with the permission of the Court, the plaintiffs filed the statement of rejoinder.

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(b) The next contention of the petitioner is that

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the petitioner/defendant No.1 was not provided with an opportunity to oppose I.A.No.4 and plaintiffs have made out a new case in the rejoinder. It is submitted that I.A.No.4 seeking permission to file rejoinder was filed on 19.09.2015. Taking note of the fact that defendant No.1 was not present before the Court, the Court allowed the application I.A. No.4 and permitted the rejoinder to be filed by the plaintiffs. It is his submission that in the rejoinder the plaintiff has made out a new case and hence, it was not permissible for the Court to take on record the rejoinder filed by the plaintiffs. Subsequently, the petitioner/defendant No.1 filed I.A. Nos.5 and 6 to

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recall the order dated 19.09.2015 and seeking permission to file objections to I.A. No.4. Both the applications, after hearing, came to be dismissed by impugned order dated 31.10.2018. Challenging the said order, the petitioner/defendant No.2 filed the present writ petition before this Court on 11.12.2018. Office objections were attended to by the petitioners on 05.11.2019 after more than ten months of filing of the writ petition. In the intervening period from the date of passing of the impugned order and today, much development has taken place in the suit. Based on the pleadings including the rejoinder, both the parties have participated in the trial. The petitioner/defendant no.1 has cross-examined P.W.1 taking note of the rejoinder. Further, defendant No.1 examined himself as D.W.1 and he was cross-examined by the plaintiffs based on the pleadings already on record. The petitioner was not diligent in prosecuting the matter. If he was interested in prosecuting the writ petition, he would have got

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posted the writ petition long back. In a writ petition under Article 227 of the Constitution of India, the conduct of the parties also become relevant consideration for grant or non-grant of the relief sought. At this length of time, after participating in the trial based on the pleadings including the rejoinder, it would not be proper, at this stage, to interfere with the impugned order.

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petitioner/defendant No.1 to take all the contentions urged in these writ petitions in an appeal to be filed by him if the decree that would be passed is adverse to him.

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With the above observations, these writ petitions

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are disposed of.

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Sd/JUDGE

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Kms

Sri.Kadagouda Shivalingappa Patil v. Smt.Annavva W/O Shivalingappa Patil

Case brief

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Sri.Kadagouda Shivalingappa Patil v. Smt.Annavva W/O Shivalingappa Patil

Case brief

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