Dismissed

Kamakshamma v. Sri Swamegowda @ Doddaswamegowda

Karnataka HC7 Sept 2021CRP/30/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the review petition filed under Section 115 of the CPC, which sought to set aside an order rejecting a transfer application. The Court held that the petitioners abused the court's process by repeatedly delaying proceedings for over 13 years and making false allegations. Consequently, the Court stayed the withdrawal of the petition, imposed costs on the petitio

What did the court decide?

The petition was dismissed, costs of Rs. 5,000 were imposed on each petitioner, and the lower appellate court is directed to dispose of the stay appeal within four months.

Kamakshamma Vs Sri Swamegowda @… — Civil Procedure and Limitation | Karnataka HC (2021)

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CRP NO.30/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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CRP NO.30 OF 2020

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BETWEEN:

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KAMAKSHAMMA W/O LATE KARIGOWDA AGED ABOUT 65 YEARS,

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SRI SHIVAKUMAR S/O LATE KARIGOWDA AGED ABOUT 37 YEARS,

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SMT RANI W/O SHIVAKUMAR S/O LATE KARIGOWDA AGED ABOUT 35 YEARS,

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SMT KALAMMA W/O MUTTU RAJ S/O LATE KARIGOWDA AGED ABOUT 33 YEARS,

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SRI PUTTASWAMY S/O LATE KARIGOWDA AGED ABOUT 31 YEARS,

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SRI KENDEGOWDA S/O LATE DASEGOWDA AGED ABOUT 55 YEARS,

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SRI M D KRISHNEGOWDA S/O LATE DASEGOWDA AGED ABOUT 53 YEARS,

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ALL ARE R/AT MUDALAKOPPALU VILLAGE BANNIKUPPE POST

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CRP NO.30/2020

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KASABA HOBLI HUNSUR TALUK-571 105

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... PETITIONERS

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(BY SRI. NANJUNDA SWAMY N., ADVOCATE)

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AND:

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SRI SWAMEGOWDA @ DODDASWAMEGOWDA, S/O LATE DODDEGOWDA, AGED ABOUT 70 YEARS,

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SRI SWAMYGOWDA, S/O LATE DODDEGOWDA, AGED ABOUT 65 YEARS,

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SRI SHIVANNEGOWDA, S/O. LATE DODDEGOWDA, AGED ABOUT 65 YEARS,

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SMT MAKAMMA (DEAD) W/O LATE DODEEGOWDA NO LRS. OTHER THAN RESPONDENT NO.1 TO 3

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ALL ARE R/AT MUDALAKOPPALU VILLAGE, BANNIKUPPE POST KASABA HOBLI HUNSUR TALUK-571 105

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SRI DODDEGOWDA S/O LATE AJJEGOWDA DEAD BY LRS.

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SMT MADAMMA W/O LATE DODDEGOWDA AGED ABOUT 71 YEARS,

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SMT PARVATHI W/O KRISHNA D/O LATE DODDEGOWDA AGED ABOUT 51 YEARS, R/AT ARAMBALLI KOPPALU VILLAGE HOSA AGRAHARA HOBLI

CRP NO.30/2020

K R NAGARA TALUK

MYSURU DISTRICT-571 602

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SMT RUKKAMMA W/O BEEREGOWDA D/O LATE DODDEGOWDA AGED ABOUT 53 YEARS, R/AT MUDALAKOPPALU VILLAGE, BANNIKUPPE POST

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KASABA HOBLI

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HUNSUR TALUK-571 105

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SRI GOPALEGOWDA S/O LATE DODEGOWDA AGED ABOUT 46 YEARS,

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SRI JAYARAMEGOWDA S/O LATE DODDEGOWDA AGED ABOUT 56 YEARS,

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R4, R6 TO R8 ARE R/AT MUDALAKOPPALU VILLAGE, BANNIKUPPE POST

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KASABA HOBLI

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HUNSUR TALUK-571 105 ... RESPONDENTS

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(BY SRI A.M.VIJAY, ADV. FOR R4 TO R8)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 11.12.2019 PASSED IN MIS.NO.88/2019 ON THE FILE OF THE PRL. DISTIRCT AND SESSIONS JUDGE, MYSURU DISMISSING THE PETITION FILED UNDER SECTION 24 OF CPC.

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THIS CRP COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

CRP NO.30/2020

ORDER

The petitioners are before this Court seeking for setting aside the order dated 11.12.2019 passed in Mis.No.88/2019 by the Principal District and Sessions Judge, Mysuru and for allowing the Mis.No.88/2019. By way of the impugned order, an application which had been filed for transfer of the regular appeal in R.A.No.721/2014 came to be rejected.

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The Principal District and Sessions Judge in the impugned order has categorically observed that the petitioners therein who were appellants in R.A.No.721/2014 had filed successive interim applications one after the other. One of the appellant, in the meanwhile, had filed an application seeking to withdraw the appeal with liberty to file a fresh appeal on the same cause of action which also came to be rejected.

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CRP NO.30/2020

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The delay in disposal of the appeal in RA.No.721/2014 was sought to be effected in order to frustrate the investigation in Crime No.67/2014 which had been registered against the appellants. Despite the Court directing the appellants to address their arguments on several occasions, the appellants were seeking time to address their arguments and thereby protracted the proceedings and hence, the Court dismissed the miscellaneous petition.

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The Principal District and Sessions Judge was of the opinion that the very ground made out that the certified copies were not furnished was also falsified on the basis of the fact that the certified copies have indeed been furnished. The Court was of the opinion that vague allegations which had been made against the presiding officer did not warrant the entertainment of the said petition.

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CRP NO.30/2020

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Sri Nanjunda Swamy N., learned counsel for the petitioners has today filed a memo for withdrawal of the above petition. However, along with the memo, he has filed the copy applications said to have been filed on 13.04.2018 and on 11.01.2019 as also a complaint filed therein.

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He further would submit that the presiding officer had not permitted grant of certified copies. In fact, after the certified copies which have been issued had observed that “why you gave petition to CAO and I know how to dispose of the case etc.,” He submits that this statement had given a strong apprehension in the mind of the petitioners that they may not get any relief from the said Judge. That is the reason why this petition was filed and therefore, he submits that the apprehension is bonafide and genuine.

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A perusal of the copy applications would indicate that in the year 2018, when the appeal filed by the

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petitioners themselves as appellants in

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RA.No.721/2014 has been pending for four years, the appellants have sought for copies of order sheet, all interlocutory applications, vakalatnama filed by all the respondents, objection statement

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filed by the respondents. Subsequently, another application on 11.01.2019 had been filed seeking for copies of all the interlocutory applications filed in O.S.No.66/2001 from which the above regular

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appeal arose, All interlocutory applications filed in R.A.No.721/2014, plaint and written statement in O.S.No.66/2001, interlocutory applications filed for impleading in R.A.No.721/2014, entire order sheet of the appeal, entire order sheet of the trial Court in O.S.No.66/2001, deposition of all the parties in O.S.No.66/2001, deposition of both the parties in appeal, copies of all exhibits in the matter, vakalatnama filed for impleading applicant and copy of the appeal memorandum. It is further to be

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noted that these copy applications have been filed when the matter was posted for final arguments.

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Sri A.M.Vijay, learned counsel for the respondents has filed a memo along with order sheet in R.A.No.721/2020 which makes an interesting reading. Initially RA.No.100/2008 had been filed, in the said appeal, after service of notice when the matter was posted for hearing in the year 2011, several adjournments have been taken by the appellants to address their arguments. Thereafter, a series of applications came to be filed by the appellants namely for amendment of the appeal memo, production of additional documents etc. By way of the said amendment, the appellants at the arguments stage, sought to include the prayer for declaration that the appellants are the owners of the suit schedule property. Hence, the written statement has been filed, parties were examined and cross-examined. Subsequently, an application

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under Order XVI Rule 6 & 7 read with Section 151 of CPC has been filed for summoning the documents for the Tahasildar. The matter was heard and posted for respondents' arguments. An application to recall and reopen the matter for leading further evidence was filed on 05.11.2014 and another application came to be filed for production of fresh documents followed by one more application under Order XXXXI Rule 27 of CPC for production of documents.

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Once again the matter was posted for argument and successfully, the appellants were able to obtain an adjournment. After adjournment, once again on 08.07.2016, an application under Order VI Rule 17 of CPC came to be filed by the appellants. Thereafter, another application under Order XVI Rule 6 & 7 of CPC came to be filed on 22.11.2016 for summoning of documents and re-opening the same to lead evidence for the appellants.

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Thereafter, on 31.03.2017, an application under Order XXIII Rule 1 of CPC was filed by the appellants for withdrawal of the appeal with liberty to file fresh appeal on the same cause of action which came to be dismissed with cost of Rs.2,000/-.

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Thereafter, an account of criminal proceedings, as aforesaid being pending, the documents had been sent to the concerned police station for the purpose of investigation. On return, the matter was posted for arguments. Once again the appellants indulged in seeking adjournment. After adjournment and finally when the appellants were refused an adjournment by the presiding officer, copy applications have been filed and the presiding officer has indicated that no further adjournments would be granted. At this stage, the appellant made the aforesaid allegations against the presiding officer, alleging that he had not allowed the appellants to address their arguments. On this

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stand, the transfer petition has been filed. The manner in which the proceedings have been conducted, leave must be denied.

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The appellants in R.A.No.721/2014, the petitioners in Mis.No.88/2019 and the petitioners herein have sought to abuse the process of Court in no uncertain terms. The regular appeal which had been filed in the year 2008 in R.A.No.100/2008 challenging decree dated 04.09.2008 has been successfully kept pending till now for one reason or the other having filed successive applications which were rejected by imposing costs. Finally, the petitioners are now making allegations against the presiding officer. This only shows the contemptuous manner in which the petitioners have conducted themselves before the first Appellate

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Court by abusing process of law. Now not being successful in delaying the matter, the memo has been filed contending that since the presiding

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officer has been transferred, the petition would be withdrawn.

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It was opposed by Sri A.M.Vijay, learned counsel for the respondents due to which the above facts have been considered by this Court.

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It would not be proper for this Court to now acceding to the request of the petitioners to withdraw the above petition, the petitioners having been successful in abusing the process of Court of law for more than 13 years.

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Be that as it may, the miscellaneous petition has been rendered infructuous as the false allegations have been made against the presiding officer, who has already been transferred. Having regard to the conduct of the petitioners before the first Appellate Court and before this Court, I am of the considered opinion that cost would have to be imposed by quantifying cost of a sum of Rs.5,000/- to be paid by each of the petitioners, out of which a sum of

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Rs.2,500/- to be paid to the respondents and balance of a sum of Rs.2,500/- to be deposited in the account of the Karnataka State Legal Services Authority. The said cost to be paid within a period of two weeks from today. If the said costs are not paid, contempt proceedings would have to be initiated against the petitioners.

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With the above observations, the petition stands dismissed.

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Having regard to the fact that the appeal was initially filed in the year 2008 and is still pending, VIII Additional District and Session Judge, Hunsur is directed to dispose of the appeal in R.A.No.721/2014 within a period of four months from the date of receipt of certified copy of this order. If the certified copy is not available and the print out of uploaded copy of this order is furnished to the said Court, the said Court will act on the same.

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Registry is also directed to forward a copy of this order to VIII Additional District and Session Judge,

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Hunsur.

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Sd/JUDGE

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KTY

Kamakshamma v. Sri Swamegowda @ Doddaswamegowda

Case brief

What is this about?

What did the court decide?

Kamakshamma v. Sri Swamegowda @ Doddaswamegowda

Case brief

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