Remanded

Sri Shanmugham v. Smt.Jayamma

Karnataka HC10 Jun 2021WP/6807/2021

Case brief

AI extract

What is this about?

This High Court set aside an order dismissing an interlocutory application challenging the maintainability of a property suit. The writ petitioner argued that the subsequent suit was barred as a prior suit on the same facts was dismissed for non-prosecution.

What did the court decide?

Impugned order set aside; matter remitted to trial court to frame and decide a preliminary issue on the maintainability of the suit.

Sri Shanmugham Vs Smt.Jayamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR

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WRIT PETITION No.6807 OF 2021 (GM – CPC)

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BETWEEN

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SRI. SHANMUGHAM, AGED ABOUT 45 YEARS, S/O DORASWAMY, R/O NO.21, 2^ND FLOOR, BRUNDAVANA LAYOUT, BASAPURA VILLAGE, ELECTRONIC CITY, BANGALORE - 560 100.

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SRI. KURUVILLA P. KURINA, AGED ABOUT 52 YEARS, S/O P.K. KURIAN,

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SMT. TARA KURUVILLA, W/O KURUVILLA P. KURIAN, AGED ABOUT 49 YEARS,

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PETITIONERS NO.2 & 3 ARE R/AT NO.A-408, SRIRAM SHASTRY APARTMENTS, SUMANGALI SEVA, ASHRAM ROAD, BANGALORE - 560 032.

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SRI. SUBBARAM, AGED ABOUT 60 YEARS, S/O A.N. NAGARAJ SHASTRY, R/O NO.5, 34^TH A CROSS, VENKATESHWARA LAYOUT, ATTIGUPPE, BANGALORE 560 040.

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… PETITIONERS

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(BY SRI. C M NAGABUSHANA, ADVOCATE)

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AND

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SMT. JAYAMMA, W/O LATE NARAYANAPPA, D/O LATE T.RAMANNA, AGED ABOUT 56 YEARS, R/AT BASAPURA VILLAGE, CHIKATHOGURU, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU – 560 010.

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SMT. MUNITHAYAMMA, W/O LATE ABBAIAH, AGED ABOUT 89 YEARS,

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SMT. MUNIYAMMA, D/O LATE ABBAIAH, AGED ABOUT 67 YEARS,

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SMT. VENKATAMMA, D/O LATE ABBAIAH, AGED ABOUT 65 YEARS,

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SRI. VADAMALLAIAH, S/O LATE ABBAIAH, AGED ABOUT 63 YEARS,

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SRI. VENAKATARAMANAPPA, D/O LATE ABBAIAH, AGED ABOUT 61 YEARS,

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SMT. VEDAVATHI, D/O LATE ABBAIAH, AGED ABOUT 59 YEARS,

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SMT. PAPAMMA, D/O LATE ABBAIAH, AGED ABOUT 55 YEARS,

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SMT. PARVATHAMMA, D/O LATE ABBAIAH, AGED ABOUT 53 YEARS,

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SMT. LAKSHAMMA, D/O LATE ABBAIAH, AGED ABOUT 47 YEARS,

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SMT. CHINNAMMA, W/O LATE VENKATARAMANAPPA, AGED ABOUT 75 YEARS,

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SMT. SAROJAMMA, D/O LATE VENKATAAMANAPPA, AGED ABOUT 57 YEARS,

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SRI. MARIYAPPA, S/O LATE VENKATARAMANAPPA, AGED ABOUT 48 YEARS,

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SRI. THYAPPA, S/O LATE VENKATARAMANAPPA, AGED ABOUT 46 YEARS,

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SMT. MUNIYAMMA, W/O LATE T VENKATARAMANAPPA, AGED ABOUT 69 YEARS,

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SRI. APPANNA, S/O LATE T VENKATARAMANAPPA, AGED ABOUT 52 YEARS,

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SRI. MARIYAPPA @ SIDDAPPA, S/O LATE T VENKATARAMANAPPA, AGED ABOUT 50 YEARS,

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SMT. RATHNAMMA, D/O LATE T VENKATARAMANAPPA, AGED ABOUT 46 YEARS,

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SMT. NEELAMMA, D/O LATE T VENKATARAMANAPPA, AGED ABOUT 46 YEARS,

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SMT. PUTTAMMA, D/O LATE T RAMANNA, AGED ABOUT 67 YEARS,

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SRI. MUNIYAMMA, D/O LATE T RAMANNA, AGED ABOUT 52 YEARS,

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SRI. THYAPPA, D/O LATE T RAMANNA, AGED ABOUT 50 YEARS,

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SMT. PAPAMMA, D/O LATE LAKSHMANA, AGED ABOUT 77 YEARS,

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SMT. MUNIYAMMA, D/O LATE T LAKSHMANA, AGED ABOUT 57 YEARS,

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SMT. RAJAMMA D/O LATE T LAKSHMANA, AGED ABOUT 55 YEARS,

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SMT. KRISHNAMMA, D/O LATE T LAKSHMANA, AGED ABOUT 52 YEARS,

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SMT. SHANTHAMMA, D/O LATE T LAKSHMANA, AGEED ABOUT 51 YEARS,

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SRI. SIDDARAJU, S/O LATE T LAKSHMANA, AGED ABOUT 49 YEARS,

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SRI. GOVINDAPPA, S/O LATE T LAKSHAMANA, AGED ABOUT 47 YEARS,

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SRI. T KRISHNAPPA, S/O LATE HONNURAPAP @ THAYAPPA, AGED ABOUT 87 YEARS,

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SMT. MUNITHAYAMMA, W/O T KRISHNAPPA, AGED ABOUT 72 YEARS,

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SMT. K PUSHPA, D/O T KRISHNAPPA, AGED ABOUT 52 YEARS,

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SRI. K. ASHOK KUMAR, S/O T KRISHNAPPA, AGED ABOUT 50 YEARS,

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SMT. K. LAKSHMAMMA, D/O T KRISHNAPPA, AGED ABOUT 47 YEARS,

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SRI. K. VENKATESH, S/O T KRISHNAPPA, AGED ABOUT 45 YEARS,

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SMT K PADMAVATHI W/O T KRISHNAPPA, AGED ABOUT 42 YEARS,

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ALL ARE RESIDING AT BASAPURA VILLAGE, CHIKKATHOGURU, BEGUL HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT -560 100.

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SRI. KRISHNAPPA, S/O LATE SIDDAPPA, AGED ABOUT 53 YEARS,

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SMT. B. S. MEENAKUMARI, W/O KRISHNAPPA, AGED ABOUT 43 YEARS,

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RESPONDENTS NO.36 & 37 ARE RESIDING AT NO.1204, 18^TH MAIN, 2^ND B CROSS, J P NAGAR, 2^ND PHASE, BENGALURU-560 078.

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SRI. SHIBU PHILIP MATHAL, S/O A.V. MATHAL, AGED ABOUT 52 YEARS, R/ATNO.901, 4^TH CROSS, 16^TH MAIN, BTM 2^ND STAGE, BENGALURU-560078.

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… RESPONDENTS

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(BY SRI. H P LEELADHAR, ADVOCATE FOR C/R)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE IMPUGNED DTD.18.2.2021 PASSED IN O.S.NO.1491/2014 ON I.A.NO.7 BY THE LEARNED 3^RD ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT BANGALORE AND THERE BY ALLOW THE APPLICATION IN I.A.NO.7 FILED BY THE PETITIONERS IN O.S.NO.1491/2014 ON IA NO.7 BY THE LEARNED 3^RD ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL DISRICT BANGALORE .

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THROUGH VIDEO CONFERENCE, THE COURT MADE THE FOLLOWING:

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O R D E R

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Smt. Jayamma, respondent No.1 has filed O.S.No.1491/2014 in the Court of Sr. Civil Judge, Bengaluru, with prayers, inter alia, for partition and separate possession of her 2/24^th share. Petitioners are arrayed as defendant Nos. 36, 37, 38 & 41 in the suit. They have filed Written Statement contending that they have purchased Sites No. 1, 2, 14 & 15, 18, 19, 21, 22 to 26, 27 & 28, 29 & 30, 39, 40 and 44 in Brindavan Residential Layout, Basapura Village, formed by one Shri. H.K. Gopala Krishna in the year 1994. He was the Power Agent of Venkataramanappa and his other family members. Subsequently, Venkataramanappa’s family members filed O.S.No.751/2000 on the file of City Civil Judge, Bengaluru, praying, inter alia, for a declaration that they are the joint owners, in possession of the suit schedule property. It was plaintiffs’ case in that suit that Gopala Krishna had obtained the Registered General Power of Attorney dated 10.04.1992 by the members of the joint

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family by misrepresentation and fraud and it was cancelled in the year 2000. The said suit stood dismissed on 27.02.2008 for non-prosecution.

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Father of Plaintiff in this case, T. Ramanna

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was the eighth plaintiff in O.S.No.751/2000.

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Shri. Nagabhushana C.M., learned Advocate appearing for the petitioners submitted that petitioners are bonafide purchasers from H.K.Gopala Krishna. As on the date of execution of sale deed in favour of the petitioners in 1994, the General Power of Attorney was valid. The suit O.S.No.751/2000 impeaching the power of attorney has been dismissed. Therefore, a subsequent suit is barred under Order IX Rule 9 of CPC, 1908. Petitioners have filed IA No.7 on 28.10.2014 under Section 151 of CPC with a prayer inter alia, to decide the maintainability of the suit. The learned trial judge has dismissed IA No.7 erroneously.

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Shri H.P. Leeladhar, learned Advocate appearing for the respondents submitted that as far as

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respondent No.1 is concerned, she has filed the suit exercising her right as a shareholder in the joint family properties. The dismissal of O.S.No.751/2000 does not affect her rights inasmuch as, her claim is independent of the prayers contained in the suit filed by the other family members in O.S.No.751/2001.

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I have carefully considered the rival

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contentions and perused the records.

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Undisputed facts of the case are, petitioners

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have purchased the properties/sites in the year 1994 as per the plaint averments in O.S.No.751/2000. Power of Attorney has been cancelled in the year 2000. The said suit has been dismissed for non-prosecution. The suit properties are the same. Smt. Jayamma is daughter of T. Ramanna who was plaintiff No.8 in the previous suit. Therefore, Shri. Nagabhushana is right in his submission that the second suit is barred under Order IX Rule 9 of CPC. However in his usual fairness, he submitted that this

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Court may mould the relief and direct learned trial judge to frame a preliminary issue on this aspect and thereafter, to proceed further.

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Shri. Leeladhar, for respondents submitted that let the evidence of the parties be recorded and the trial judge be directed to consider the preliminary issue first.

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In view of the admitted facts, it would not be appropriate to compel the defendants to undergo trial unless the plaintiff satisfies the court that suit is maintainable.

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In the circumstances, this writ petition merits consideration. Hence the following:

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ORDER

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The impugned order dated 18.2.2021 passed in O.S.NO.1491/2014 on I.A.No.7 on the file of learned III Additional Sr. Civil Judge, Bengaluru, is set aside.

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The matter is remitted to the trial Court with a direction to the learned trial judge to frame a preliminary issue with regard to maintainability of the suit, decide the same and thereafter proceed further with trial subject to outcome of finding on preliminary issue.

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Petition disposed of accordingly.

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Sd/JUDGE

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Bsv

Sri Shanmugham v. Smt.Jayamma

Case brief

What is this about?

What did the court decide?

Sri Shanmugham v. Smt.Jayamma

Case brief

What is this about?

What did the court decide?

What the court decided

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