Dismissed

Sri. Yellappa v. Smt. Gowramma

Karnataka HC22 Oct 2021WP/39671/2016

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition filed by a defendant challenging the Trial Court's order allowing plaintiffs to withdraw a withdrawal application and prosecute a partition suit on merits. The Court held plaintiffs as dominus litis cannot be leveraged incorrectly and the Trial Court acted within its jurisdiction. It directed expedited disposal. (153 chars)

What did the court decide?

The writ petition is dismissed. The Trial Court is directed to expedite disposal of the suit within one year from framing of issues.

Sri. Yellappa Vs Smt. Gowramma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MR.JUSTICE R. NATARAJ

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W.P. NO.39671 OF 2016 (GM-CPC)

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BETWEEN:

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SRI. YELLAPPA S/O. LATE NALLAPPA, AGED ABOUT 62 YEARS, R/A NO.91, CHIKKALAKSHMAIAH LAYOUT, HOSUR ROAD, BANGALORE-560 029.

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...PETITIONER

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(BY SRI. RAJAGOPAL M.R., ADVOCATE (THROUGH VC))

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AND:

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SMT. GOWRAMMA

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W/O. LATE THIMMARAYAPPA S.C., AGED ABOUT 51 YEARS.

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SRI. SHYLENDRA KUMAR S/O. LATE THIMMARAYAPPA S.C, AGED ABOUT 26 YEARS.

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KUMARI VARALAKSHMI D/O. LATE THIMMARAYAPPA S.C., AGED ABOUT 16 YEARS, REPRESENTED BY NATURAL GUARDIAN THE MOTHER GOWRAMMA, W/O. LATE THIMMARAYAPPA.

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ALL ARE R/A JAKKANAHALLI VILLAGE, THYAMAGONDLU HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.

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SMT. THIMMAKKA W/O. LATE RAMAIAH, AGED ABOUT 86 YEARS. 5. SRI. THIMMARAYAPPA S/O. LATE RAMAIAH, AGED ABOUT 69 YEARS. 6. SRI. CHIKKAMUNIYAPPA @ CHIKKONU S/O. LATE KARAGAPPA, AGED ABOUT 86 YEARS. 7. SMT. SAVITHRAMMA W/O. LATE MUNIVENKATAPPA, AGED ABOUT 56 YEARS, R-4 TO R-7 ARE R/A SINGASANDRA, BEGUR HOBLI, BANGALORE SOUTH TALUK. 8. SMT. KARAGAMMA D/O. LATE CHIKKAMUNIYAMMA, AGED ABOUT 50 YEARS, NOW R/A CHEEMASANAHALLI VILLAGE, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. SINCE DEAD BY L.R. SRI MUNIYAPPA S/O LATE KUNTE VENKATAPPA Amended vide order AGED ABOUT 45 YEARS, dated 01.04.2021 R/A CHEEMANAHALLI VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. THE MANAGER, Deleted vide trial court CHARTERED SAHAKARI NIYAMITA, order dated 04.12.2010 NO.1, 1ST MAIN, 1ST BLOCK, KORAMANGALA, BANGALORE-560 034. …RESPONDENTS

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(BY SRI. VENKATESH R. BHAGAT, ADVOCATE FOR RESPONDENT NOs.1 AND 2 (THROUGH VC);

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SRI. K.C.KRISHNAPPA, ADVOCATE FOR RESPONDENT NO.7 AND 8(A);

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RESPONDENT NOs.4 TO 6 ARE SERVED AND UNREPRESENTED; RESPONDENT NO.3 IS MINOR, REPRESENTED BY RESPONDENT NO.1)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.01.2016 PASSED BY THE LEARNED LVII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYO HALL, BANGALORE, IN O.S.NO.27025/2010 VIDE ANNEXURE-K AND ETC.

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THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has called in question the order dated 16.04.2016 passed by the LVII Addl. City Civil & Sessions Judge , Mayo Hall, Bangalore (henceforth referred to as 'Trial Court') in O.S. No.27025/2010. The petitioner herein was the defendant No.1 before the Trial Court.

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The parties shall henceforth be referred to as per their rank before the Trial Court.

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A suit in O.S. No.27025/2010 was filed for partition and separate possession of the undivided right,

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title and interest of the plaintiffs in the suit schedule properties. On 04.08.2014, an application was allegedly filed by the plaintiffs under Section 151 of the Code of Civil Procedure, requesting the Court to dismiss the suit as they had not instructed their Advocate to file the suit. It was stated in the affidavit accompanying the application that the plaintiffs had not engaged any Advocate and that they had not authorised any Advocate to file any suit and that the suit was filed falsely in their names. It was also stated therein that the plaintiffs were in no way concerned with the suit properties. This application was not considered by the Trial Court which prompted the defendant No.1 to file W.P. No.28716/2015 for a direction to the Trial Court to consider and dispose off the aforesaid application. This Court in terms of the order dated 15.07.2015 directed the Trial Court to pass appropriate orders at the earliest.

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Thereafter the plaintiffs filed another application on 12.08.2015 requesting the Court to dismiss the application filed on 04.08.2014. The plaintiffs

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thereafter filed another application on 06.01.2016 requesting the Trial Court to permit them to prosecute the suit on merits as they were not impersonated as alleged in the application dated 04.08.2014.

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In compliance with the directions issued by this Court in W.P. 28716/2015, the Trial Court considered the above applications and rejected the application filed on 04.08.2014 and 12.08.2015 and allowed the application filed on 06.01.2016.

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Being aggrieved by the above order, the

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defendant No.1 has filed the present writ petition.

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The learned counsel for defendant No.1 submitted that the plaintiffs No.1 to 3 were present in the Court on 04.08.2014 when the first application was filed to withdraw the suit, as per the order sheet dated 04.08.2014. Therefore, he contended that the Trial Court was not justified in doubting the application filed by the plaintiffs for withdrawal of the suit. He contended that the

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Trial Court ought to have conducted an enquiry as to whether the plaintiffs had indeed signed the application to withdraw the suit or not. He submitted that the plaintiffs are playing traunt by filing applications one after another and are exposing the defendant No.1 to untold hardship. The learned counsel also submitted that the application filed by the plaintiffs for withdrawal of the suit has invoked notice to the Advocate who had filed the application and also to the Karnataka State Bar Council to adjudicate the same. Therefore, he submitted that the Trial Court ought not to have considered the application lightly.

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Per contra, the learned counsel for the respondents submitted that they had not authorised an Advocate named Omkarappa to file the application dated 04.08.2014 and that the application so filed was fraudulent. He further submitted that the defendant No.1 cannot make an issue out of this as it is the plaintiffs' interest that is in stake.

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9. I have considered the submissions made by

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learned counsel for the parties.

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The Trial Court entertained a doubt about the signatures found on the application dated 04.08.2014 that was filed before the Court to withdraw the suit. The order sheet dated 04.08.2014 bears testimony to the above. The Trial Court therefore, issued notice to the Advocate for the plaintiffs who had filed the application and also issued a notice to the Bar Council to adjudicate the same. The plaintiffs claimed that the application to withdraw the suit was not filed by them but was filed by an Advocate named Omkarappa, who was not authorised by them. Therefore, the plaintiffs filed an application on 12.08.2015 to reject the application filed for withdrawal of the suit. Thereafter, they filed another application on 06.01.2016 requesting the Court to permit them to prosecute the suit. The Trial Court after considering the contentions urged by the plaintiffs found it fit to reject the application filed on

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04.08.2014 and consequently permitted the plaintiffs to prosecute the suit.

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The plaintiffs are the dominus litis and even if it is considered that they had filed an application to withdraw the suit, nothing prevented them from withdrawing the application filed to withdraw the suit. The defendant No.1 cannot leverage, the wrong filing of an application for withdrawal of the suit, by claiming that the Trial Court ought to have conducted an enquiry as to whether the application was indeed filed or not. There was no right vested in the defendant No.1 so as to enable him to question the order passed by the Trial Court. The Trial Court has ascertained the said fact and has mindfully passed the impugned order. Hence, there is no merit in this writ petition and the same is dismissed.

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Since the suit is filed in the year 2010, the Trial Court is requested to expedite the disposal of the suit which shall not be later than one year from the date of

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framing of issues in the suit. The parties shall co-operate with the Trial Court in the early disposal of the suit.

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Sd/JUDGE

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hnm

Sri. Yellappa v. Smt. Gowramma

Case brief

What is this about?

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Sri. Yellappa v. Smt. Gowramma

Case brief

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